Balancing Sovereign Equality: The
Security Council’s functionalist
approach to nuclear weapons
Victor Abramowicz
Supervisor: Pr. Pieter Jan Kuijper
Student ID: 1116 4115
U n i v e r s i t y o f A m s t e r d a m – J u l y 2 0 1 9
Table of contents
Introduction 3
I. Nuclear disarmament rules outside of the Security Council: the outline of the
Council’s activities 4
1. The NPT 5
2. The UN Charter and the powers of the General Assembly 9
3. The CTBT 12
4. The TPNW 12
5. Nuclear weapons free zones 13
6. Customary international law 13
7. Conclusion 14
II. Activities of the Security Council 14
1. Purposes and powers 14
2. Resolution 1172: India, Pakistan and the CTBT 17
3. Resolution 1540: the culmination of the Security Council’s « quasi-legislative » powers 18
4. North Korea 22
5. Article VI of the NPT 24
III. Limitations to the Council’s powers 26
1. Constitutional limits: the UN Charter 26
2. Judicial control over the Council’s decisions 27
3. Limitations to the limitations 29
Conclusion 32
References 33
Table of legislation 35
Introduction
Sovereign equality is cited first among the Principles of the United Nations1. It asserts that all states are legally equal and that no authority exists upon them above their exclusive sovereignty. Accordingly, the only obligations that states are submitted to are those by which they freely consented to be bound: this is the principle of state consent, sovereign equality’s most tangible application when it comes to law-making. Those ideas were officially consecrated in 1648 during the Peace of Westphalia and have since then acquired a central, almost mythical2 status. The « Westphalian principles » are still regarded today as the paradigm of public international law.
In theory, there are no exceptions or restrictions to these principles in the specific area of nuclear disarmament and non-proliferation, despite their high implications in international security and stability. Regarding general disarmament, this has been clearly stated by the ICJ in paragraph 135 of the Nicaragua case: « There are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can be limited, and this principle is valid for all States without exception »3. The same goes for nuclear disarmament4. While the ICJ has always been more cautious on this particular issue, it has nevertheless come to the conclusion that there was no « comprehensive and universal prohibition of the threat or use of nuclear weapons as such »5.
However, practice shows a slightly different reality, especially in the activities of the UN Security Council. Its five permanent members in particular (the « P-5 states »: China, France, Russia, the UK and the US) have shown a persistent tendency to compromise the principles of sovereign equality and state consent in order to achieve its essential purpose: the maintenance of international peace and security6. The field of nuclear weapons bears an inherent and extremely high-stakes divergence between national and international interests – more precisely, between international peace and national security. Therefore, it constitutes a rich
1 UN Charter, article 2(1).
2 Simma, Bruno et al. The Charter of the United Nations: a Commentary. Third edition. Oxford,
United Kingdom: Oxford University Press, 2012, p 135.
3 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), ICJ Reports (1986) 86/6.
4 Joyner, Daniel H. “Non-Proliferation Law and the United Nations System: The U.N. Political
Bodies.” International Law and the Proliferation of Weapons of Mass Destruction. Oxford University Press, 2009, p. 166.
5 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226,
paragraph 105.
and revealing observation post for the interaction of theory and practice, the adaptation of ideal principles into concrete decisions.
This paper does not aim to provide a moral assessment of the Security Council’s activities, which each reader will have to make according to their own values. Nonetheless ethics could not be entirely alien to this work, as it intends to study the complex relation between abstract ideas and concrete decisions in a particularly high-stakes area. The concepts of formalism and functionalism provided me with an enlightening scope through which I could reflect on the Council’s applied philosophy without falling into moral judgements: I start from the assumption that the Council takes its responsibility to maintain peace and security seriously, which was confirmed several times throughout my research; from there what I try to determine lies in its way to achieve this goal. A formalistic approach would respect the rules, sometimes at the expense of efficacy. On the other hand, a functionalist approach would sometimes sacrifice those rules in order to achieve optimal results, with the belief that « the end justifies the means ».
The first part of this essay will consist of an overview of the general regime of nuclear weapons outside of the Security Council. As irrelevant as it may seem considering my thesis subject, it is actually indispensable in order to understand the work frame of the Council and the evolution of its role, which often developed as a gap-filler and as a remedy to lacks in the general regime. Therefore, one should not think of this chapter as circumventing the issue but rather as drawing its outline.
The second part will explore the Security Council’s powers and activities, mainly – but not only – through the UN Charter (powers) and its binding Resolutions (activities). The examples I will choose are not especially those that are the most politically important but rather those that illustrate best the Council’s underlying philosophy.
In the third part I will try to determine whether there are limitations to the powers of the Security Council, and what they are. In a first time, I will look for theoretical limitations, mainly within the UN Charter. Then I will focus on potential practical and judicial limitations, with an emphasis on the ICJ’s role.
I. Nuclear disarmament rules outside of the Security Council: the outline of the Council’s activities
in the rules themselves but in a necessity to fill gaps. These gaps are sometimes theoretical but most of the time they are practical, resulting in the absence of realistic enforcement bodies to ensure that rules are applied. It is therefore useful to start by setting the general framework of the international nuclear weapons regulation regime in order to understand the place left for the Security Council to fill.
1. The NPT7
The most important treaty in the area of nuclear arms control is undoubtedly the Treaty on the Non-Proliferation of Nuclear Weapons (NPT). It entered into force in 1970 and has since then become one of the most widely joined Treaties in international law. Today it counts 190 states as parties, the only non-signatory states being India, Pakistan, Israel and South Sudan. North Korea was a party but announced its withdrawal in 2003.
The NPT was founded around three pillars: non-proliferation, disarmament, and the right to use nuclear energy for peaceful purposes. The latter being fairly irrelevant to our topic, I will not develop it here. As for the two formers, I chose to treat them separately, since their respective regimes are different not only in the rules they establish but also in their subjects, legal value and application.
The NPT creates a dual distinction between its parties: on one side the non-nuclear weapon states (the vast majority of states), which are submitted to the rules on non-proliferation and peaceful use of nuclear energy; on the other the nuclear weapon states, which are subjects not only to those two pillars but also to this of disarmament. Those states (the official « nuclear powers ») are the United States, Russia, France, China and the United Kingdom. It is noteworthy that the five nuclear weapon states of the NPT should be precisely the five permanent members of the Security Council. And while one should be careful not to mix up the P-5 states acting in the Security Council and the P-5 states acting in their national capacities, neither can one in good faith ignore the influence and connection between national interests and international matters. Other states have, or are thought to have, nuclear weapons, but do not enjoy this official status, since they are not parties to the NPT: India, Pakistan, North Korea and Israel (four out of the five states not to be parties to the Treaty).
a. Non-proliferation
The first three articles of the NPT contain a thorough regulation aiming at the non-proliferation of nuclear weapons: in this regime, « each nuclear-weapon state party to the Treaty undertakes not to transfer » material, « assist, encourage or induce » any non-nuclear weapon state in developing or acquiring nuclear weapons (article I). As for non-nuclear weapon states, they undertake not to receive such transfer or assistance, nor to manufacture or acquire nuclear weapons (article II). Non-nuclear weapon states also undertake to accept safeguards and verification from the International Atomic Energy Agency (IAEA) (article III).
Without going into more details, it can be noted that the non-proliferation part of the NPT has been an overall success. With the exception of North Korea, which is no longer a party, none of the original non-nuclear states parties to the Treaty is thought to have developed nuclear weapons.
b. Disarmament: article VI
After articles IV and V lay down the basic rules for the peaceful use of nuclear energy, article VI turns to the third pillar: nuclear disarmament. Whereas non-proliferation is extensively and carefully regulated, the specific issue of disarmament is only addressed in one article, rather vague in comparison with the rest of the Treaty: « Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control ».
The actual content of the obligation created by article VI is controversial. According to an advisory opinion of the ICJ, « the legal import of that obligation goes beyond that of a mere obligation of conduct; the obligation involved here is an obligation to achieve a precise result – nuclear disarmament in all its aspects – by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith8 ». It even qualifies article VI of « twofold obligation to pursue and to conclude negotiations »9. In my humble (and far from advisory) opinion however, the indefinite phrasing of article VI makes it seem more like a wishful recommendation than like an actual binding rule, let alone a « twofold obligation to pursue and to conclude negotiations ». The spectacular insignificance of article VI in the
8 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226,
paragraph 99.
history of nuclear weapons seems to confirm this impression. Nevertheless, as far as I know the idea that article VI would not be binding has never been advocated, which is certainly for the best. The most accurate interpretation of article VI probably lies between those two extremes. Christopher A. Ford arrives at the same conclusion, arguing that « the only defensible reading is that Article VI, as it says, merely requires states to pursue negotiations in good faith »10. Indeed, it seems clear from the wording of article VI that it was meant to create an obligation de moyen and not an obligation de résultat. States cannot be held responsible for not concluding a nuclear ban treaty (or a Zero treaty), but they do have to pursue negotiations in good faith.
Article VI is binding on « each of the Parties » to the NPT. It seems logical however that it is especially addressed to nuclear weapon states: unless there is a gross violation of their sovereignty, it is only with their consent that progress towards disarmament through article VI can be achieved. We will see below that at least some of the nuclear weapon states have repeatedly failed to comply with their article VI obligations, even interpreted only as an
obligation de moyen. For instance, all nuclear weapon states have openly neglected to act like
they could even be interested in negotiations at the occasion of the most recent nuclear ban treaty. The absence of sanctions thereafter also seems to discard the binding value of article VI.
The poor balance sheet of nuclear disarmament is arguably the most notable failure of the NPT. To begin with, in comparison with the regimes of other types weapons, the NPT is extremely tolerant of production and possession, as « only transfer, acquisition and manufacture are currently explicitly prohibited »11 . But even the little disarmament obligations it contains have not been fulfilled. To sum it up: « although the NPT has served the very significant purpose of largely preventing nuclear proliferation in the non-nuclear weapon states since its inception in 1968, it has proved less efficient with regard to nuclear disarmament by the nuclear weapon states (…) Disarmament obligations on the nuclear weapon states remain contested, and remain challenging to enforce.12 »
10 Ford, Christopher A. “DEBATING DISARMAMENT: Interpreting Article VI of the Treaty on the
Non-Proliferation of Nuclear Weapons.” The Nonproliferation Review 14.3 (2007), p. 404.
11 Tim Caughley, Analysing Effective Measures: Options for Multilateral Nuclear Disarmament and
Implementation of NPT Article VI, UNIDIR (2015), p. 5.
12 Nystuen G., Casey-Malsen S., Bersagel A. (eds.), Nuclear Weapons under International Law.
c. The IAEA13
The NPT establishes an enforcement and monitoring organization to insure its application: the International Atomic Energy Agency (IAEA). Its objective is to « accelerate and enlarge the contribution of atomic energy to peace, health and prosperity throughout the world [and to] ensure, so far as it is able, that assistance provided by it or at its request or under its supervision or control is not used in such a way as to further any military purpose »14.
Its prerogatives, described in article XII of the IAEA Statute, mainly consist of supervision and inspection. Sanction-wise, it is also allowed to « suspend or terminate assistance and withdraw any materials and equipment » (XII.A7) and « call upon the recipient State or States to remedy forthwith any non-compliance ». Should the non-compliance continue, the IAEA can proceed to « direct curtailment or suspension of assistance being provided by the Agency or by a member, and call for the return of materials and equipment made available to the recipient member or group of members. The Agency may also (…) suspend any non-complying member from the exercise of the privileges and rights of membership. » (XII.C) Those sanctions are mild to say the least. In fact, none of them positively creates a punishment: they all simply limit access to privileges created by the NPT in the first place. In all likelihood, they would be inadequate to deal with an actual threat of nuclear weapon use. In such a scenario, the IAEA would have no choice but to turn to the Security Council. In fact, articles III and XII already mention notifications and reports to the UN institutions, among others in cases of non-compliance.
Another notable weakness of the IAEA is that it is not competent to monitor or supervise compliance with article VI (disarmament): while non-proliferation and peaceful use of nuclear weapons are clearly included in its mission (expressed above), disarmament is not. Its mandate does thus not cover the whole of the NPT, and the obligations it does not cover are precisely those specific to nuclear weapon states. This deepens the already existing inequality between the P-5 and other states. Furthermore, the part of the P-5 states’ obligations that is supervised (that is, not to transfer or help non-nuclear weapon states acquire nuclear weapons) does not in any way alleviate this inequality, but rather grants it an additional protection.
d. Withrawal from the Treaty
13 https://www.iaea.org/about/statute 14 IAEA Statute, article II.
Finally, the NPT also provides a withdrawal procedure in its article X. Accordingly, each party is allowed to unbind itself « in exercising its national sovereignty (…) if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country ». A notice of withdrawal, including « a statement of the extraordinary events it regards as having jeopardized its supreme interests » shall be given to the Security Council three months in advance. There are no indications on how the Security Council is supposed to react, nor is there any mention of the possible consequences of the Council’s reaction. On one occasion only a state withdrew from the NPT in application of article X; the Council failed to respond and the withdrawal happened de facto.
2. The UN Charter and the powers of the General Assembly
Several authors have argued that the issue of nuclear and general armaments regulation had slipped out of the UN’s control and shifted to external organizations15. I found this view to be partly correct: the UN Charter is indeed rather weak on disarmament, and most agreements on the issue were concluded out of its quarters. However, what these authors seem to overlook is that the UN institutions have proved important, if not central, in the concrete reality of arms control law, not only as a forum for the creation and negotiation of treaties, but first and foremost as an enforcement authority.
To take the example of the NPT: while the treaty certainly is an overall success, it does not provide an executive organ except for the IAEA, the powers of which are very limited. These limitations, along with the fact that the UN Charter does not make any distinction between different types of weapons, led the UN organs to play an enforcement role and fill the regime’s gaps in virtue of their general competence in the field of armaments regulation16.
Even further, a look at the law and history of nuclear non-proliferation gives the impression that the UN organs did not only fill unforeseen gaps of specialized institutions like the IAEA: it leads to think that those specialized institutions were actually meant to develop in relationship with the UN bodies. For instance, the rather indefinite mentions of the General Assembly and the Security Council in the NPT and the IAEA Statute (see point II.1 of this essay for examples), inviting them in the regime while leaving them a complete flexibility, or
15 Simma, Bruno et al. The Charter of the United Nations: a Commentary. Third edition. Oxford,
United Kingdom: Oxford University Press, 2012, p. 870.
16 Joyner, Daniel H. “Non-Proliferation Law and the United Nations System: The U.N. Political
Bodies.” International Law and the Proliferation of Weapons of Mass Destruction. Oxford University Press, 2009, p. 159.
simply the absence of a strong enforcement body in such a delicate issue, seem to have been implicitly designed in order to leave room for their involvement.
Nevertheless, the UN Charter does not put much of an emphasis on disarmament. In contrast, its predecessor the Covenant of the League of Nations17 considered the reduction of armaments as an imperative for international peace, as is demonstrated in its article 818. As Daniel H. Joyner put it, after the disillusionment of World War II the UN « moved away from a reliance on disarmament as a means to ensure international peace and towards a broader concept of arms control within a collective security system, of which the maintenance of national armaments, particularly by major powers, was a necessary part19 ». The nuclear weapon states’ non-compliance with their disarmament obligation is an illustration of this shift of mentality.
The subject of armament is mentioned three times in the Charter. The first is in article 11(1), stating: « The General Assembly may consider the general principles of co-operation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments, and may make recommendations with regard to such principles to the Members or to the Security Council or to both. » This should be read in the light of article 10, which allows the General Assembly to discuss any matters related to the Charter or to any organ provided by it: what article 11(1) does is insisting on a few specific subjects on which it calls for the General Assembly’s particular attention. In fact, the first ever General Assembly Resolution was the creation, in virtue of article 11(1), of an Atomic Energy Commission (AEC). The Assembly has taken a few other nuclear disarmament-related initiatives throughout its history, namely: three « Special Sessions » of the General Assembly which were held from 1978 to 1988 with little to no results20; and the United Nations Disarmament Commission, which was created in 1952 and resurrected in 1978. The latter remains the main global deliberative and negotiating forum when it comes to disarmament, and has links with the UN without being under its authority.
17 https://avalon.law.yale.edu/20th_century/leagcov.asp
18 Simma, Bruno et al. The Charter of the United Nations: a Commentary. Third edition. Oxford,
United Kingdom: Oxford University Press, 2012, p. 494.
19 Joyner Daniel H. “Non-Proliferation Law and the United Nations System: Resolution 1540 and the
Limits of the Power of the Security Council.” Leiden Journal of International Law 20.2 (2007), p. 492.
20 Joyner, Daniel H. “Non-Proliferation Law and the United Nations System: The U.N. Political
Bodies.” International Law and the Proliferation of Weapons of Mass Destruction. Oxford University Press, 2009, p. 169-170.
However, apart from these achievements the overall results of article 11(1) have been « relatively modest21 ». Mentions of article 11(1) in GA Resolutions have been numerous but
inefficient, and arguably « diluted the significance and influence » of the General Assembly in the area. Interestingly, the principles of sovereign equality and state consent might have constituted the main obstacles in the creation of a comprehensive nuclear weapons regulation system within the General Assembly. Indeed, according to Joyner, the failure of article 11(1) is primarily due to the « difficulty in achieving consensus, or even majority agreement » among all member states22.
The second disarmament-related article of the Charter is article 26, which we will discuss more at length in the second part of this essay. It reads as follows: « In order to promote the establishment and maintenance of international peace and security with the least diversion for armaments of the world's human and economic resources, the Security Council shall be responsible for formulating (…) plans to be submitted to the Members of the United Nations for the establishment of a system for the regulation of armaments ». This article manages to find a realistic and satisfactory balance between the equality and sovereignty of all UN states on one side, and the undeniable effectiveness of the smaller and pragmatic Security Council on the other. It aims to exploit this effectiveness while remedying to its inherent lack of democratic representation by leaving the final choice up to the sovereign consent of each state. It thus combines the advantages of both the Council and the General Assembly, leaving the latter the actual power of decision.
The third and last mention of disarmament is the article 47(1) – less relevant to our conceptual research – which establishes a Military Staff Committee « to advise and assist the Security Council on all questions relating to the Security Council's military requirements for the maintenance of international peace and security, the employment and command of forces placed at its disposal, the regulation of armaments, and possible disarmament ».
While the subject is not consensual23, I argue that the UN Charter was designed so as to leave
21 Idem, p. 171.
22 Joyner, Daniel H. “Non-Proliferation Law and the United Nations System: The U.N. Political
Bodies.” International Law and the Proliferation of Weapons of Mass Destruction. Oxford University Press, 2009, p. 172.
23 D. S. Paraschiv, Reflections regarding Sanctions Stipulated in the International Treaties Concerning
Disarmament, 2013 AGORA Int'l J. Jurid. Sci. 143 (2013), p. 144; James D. Fry, Dionysian Disarmament: Security Council WMD Coercive Disarmament Measures and Their Legal Implications, 29 Mich. J. Int'l L. 197 (2008), p. 212.
the leading role in disarmament-related decision-making to the General Assembly: article 11(1) specifically insists on making it its competence (in addition to its general competence in virtue of article 10), and article 26 gives its member states the final choice. In spite of this, partly because of the difficulty to conciliate the sovereignties and individual interests of all 193 member states in such a sensitive matter, it has failed to take the lead and establish a multilateral nuclear disarmament regime.
Regional treaties and the Security Council benefitted from this failure. However, it would be exaggerated to assume that the General Assembly has been completely useless. Indeed, its unique design makes it an ideal forum for international discussions and negotiations. It played an indispensable part in the making of the most important nuclear non-proliferation treaties to date, including the NPT. But it has little actual role once these texts come into force.
3. The CTBT24
Signed in 1996 and ratified since by 168 states out of 184 signatories, the Comprehensive Nuclear-Test-Ban Treaty aims to oppose nuclear weapons not by prohibiting them as such, but by ruling out nuclear explosions. In spite of the broad enthusiasm it generated in the international community, the CTBT has not yet entered into force because of the failure to ratify it by certain predetermined states whose ratifications were required, among which China and the United States (both members of the P-5).
4. The TPNW25
The Treaty on the Prohibition of Nuclear Weapons is the most recent international treaty on nuclear weapons control. It is also the first treaty aiming directly at the elimination and liquidation of all nuclear weapons. It was first signed in 2017, and already counts 23 ratifications out of 90 signatories.
Like the CTBT, it has not yet entered into force. Unlike the CTBT, it was openly disregarded by all nuclear weapon states. All five voted against negotiations, with Russia and the United States even explicitly opposing the project. Of course, in virtue of state consent no state is obligated to join any treaty; and there certainly are legitimate objections to the TPNW26.
24
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVI-4&chapter=26&clang=_en
25
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVI-9&chapter=26&clang=_en
However, such a blunt refusal by all P-5 states of the very idea of negotiations without any alternative proposal seems problematic their NPT obligation « to pursue negotiations in good faith ». Interestingly enough, the only nuclear weapons possessing state to vote in favor of negotiations was North Korea.
5. Nuclear weapons free zones
Article VII of the NPT underlines « the right of any group of States to conclude regional treaties in order to assure the total absence of nuclear weapons in their respective territories ». Such regional agreements establish « nuclear weapons free zones » (NWFZ). Today there are eight such zones, which can be divided in two categories: three protecting international areas (namely the Antarctica, the outer Space and the seabed), and five banning nuclear weapons directly from the territory of the state parties (in Latin America and Caribbean, the South Pacific, South-East Asia, Central Asia and Africa). 115 states worldwide are parties to this latter kind of NWFZ. Those states already being non-nuclear weapon states parties to the NPT, one could argue that NWFZ merely insist on preexisting obligations more than they create new ones. Still, any collective effort towards nuclear disarmament can contribute to an overall change.
6. Customary international law
The most notable exception to the principle of state consent is customary international law, which does not necessitate express consent to become binding. In its Advisory Opinion on the
Legality of the Threat or Use of Nuclear Weapons, the ICJ came to the conclusion that,
although they did represent a « deep concern » for the international community, it could not see any evidence that the use or threat of nuclear weapons was in itself forbidden by customary international law (that is, not more specifically than any use of armed force). Of course, this can only lead to the conclusion that the use of nuclear weapons is not prohibited as such under customary international law. But the Court’s precise statement is more ambiguous: it « cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake »27. This wording is revealing of the ICJ’s neutrality and shyness on the issue, which we will discuss further in the third part of this 60:1, 129-152, DOI: 10.1080/00396338.2018.1427371.
27 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226,
essay.
7. Conclusion
In theory, the nuclear weapons regime in international law is generally respectful of the principles of state sovereignty. While equality is subject to some accommodation through the nuclear weapon states versus non-nuclear weapon states distinction, this inequality is legitimate in a Westphalian perspective since it is based on the free consent of all parties. As for the principle of state consent, it does not suffer any limitation. This inevitably entails that states who do not want to submit themselves to safeguards and obligations in this area do not have to. Interestingly enough, such states are rare. The NPT is among the treaties that went closest to universal ratification, with 190 state parties. The vast majority of states worldwide have not only refrained from developing nuclear weapons, but also voluntarily given away their right to do so. Nonetheless, there are exceptions, which have proven low in number but high in danger. Should the situation become threatening in any of the five states that are not parties to the NPT, the consent-based regime is bound to remain powerless. In such cases the Security Council would be the only organ able to take action.
II. Activities of the Security Council 1. Purposes and powers
a. General purpose
Chapter V (duly named: The Security Council) lays down the basic rules regarding the functions and powers of the Security Council. Article 24 states its purpose, which is « primary responsibility for the maintenance of international peace and security » on behalf of States and « in accordance with the Purposes and Principles of the United Nations ». Article 25 adds that « the Members of the United Nations agree to accept and carry out the decisions of the Security Council ». Especially if read in combination with Article 103 (which establishes the prevalence of obligations under the UN Charter over any other obligation of a state), article 25 gives the Council a considerable authority: by joining the UN, member states agree to give up a part of their sovereignty to the benefit of the Council, which can later take decisions that are binding upon them without their consent.
Mentions of the Security Council are rare in the specific regime of nuclear arms control. In fact, it is only cited three times in the NPT and the IAEA Statute combined:
(i) Article X of the NPT, which we already mentioned, establishes that parties who want to withdraw from the NPT must give notice of their withdrawal decision to all other parties, as well as to the Security Council;
(ii) Article III, paragraph B.4 of the IAEA Statute says that the IAEA shall submit annual reports on its activities to the General Assembly and, « when appropriate », to the Security Council, adding: « if in connection with the activities of the Agency there should arise questions that are within the competence of the Security Council, the Agency shall notify the Security Council, as the organ bearing the main responsibility for the maintenance of international peace and security, and may also take the measures open to it under this Statute, including those provided in paragraph C of article XII »;
(iii) Finally, under article XII, paragraph C of the IAEA Statute, if a state does not comply to its obligations, such non-compliance shall be reported to all parties, as well as to the Security Council and General Assembly.
These functions are sporadic to say the least. Furthermore, it is noteworthy that none of these articles give the Security Council any guidelines as to how it is actually supposed to act or respond. It does not even mention any expected or desirable outcome to its reaction. About the Council’s precise responsibility under article XII.C, Chesterman writes it is up to it to decide on a case-by-case basis28. This conclusion seems to be extendable to the two other articles. Indeed, none of them actually grants any effective power to the Council. Instead, they seem to « invite » the Council in scenarios in which drafters foresaw a possible weakness of the IAEA and NPT regime, as if to encourage the IAEA to seek its support in difficult situations. The Council would then have to choose a suitable course of action in virtue of its general powers. This would explain why the Security Council, despite its restrained and undefined role, has become central in the execution and the implementation of non-proliferation law. It does not draw its powers from the text of the Treaties, but rather from a combination of their deficiencies and of its own general powers. These flow directly from the UN Charter.
28 Chesterman S., Johnstone I., Malone D., Law and Practice of the United Nations (2nd ed.). Oxford
c. The Security Council’s powers in UN Charter
When it comes to armaments problems, the Charter offers the Security Council two possible procedures relating to two distinct types of situations: one for general cases, and one for cases of threat to the peace, breach of peace or act of aggression.
The former is article 26, already mentioned in Part I, which can be found among the Security Council’s general powers: « In order to promote the establishment and maintenance of international peace and security with the least diversion for armaments of the world's human and economic resources, the Security Council shall be responsible for formulating (…) plans to be submitted to the Members of the United Nations for the establishment of a system for the regulation of armaments. » At the risk of repeating myself, I view Article 26 as a perfect achievement of the UN Charter’s purposes and principles. The final decision is left to the consent of member States, in virtue of their sovereignty and equality. But the Charter foresees that only little results could be achieved through a reunion of 193 state representatives talking together in one room filled with hidden intentions and mutual mistrust. Because of the distance and objectivity required to discuss matters of such vital importance, the Security Council appears as the perfectly designed institution to make proposals: not only is its area of expertise precisely the maintenance of international peace and security, it is also a reduced and down-to-earth organ composed of the most influential states as well as ten others, supposed to represent the international community29. Article 26 manages, at least in theory, to
conciliate principles and pragmatism, the sovereign consent of each state with the effectiveness of the Security Council.
The latter source is Chapter VII, which gives the Council extraordinary prerogatives for cases in which international peace and security would be directly threatened. Article 39 says: « The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security ». Should the case arise, the next articles respectively empower it to take provisional measures, measures not involving the use of armed forces, and (if « article 41 would be inadequate or have proved to be inadequate ») measures involving the use of armed forces. Although Chapter VII does not specifically aim at armaments, it makes little doubt that a crisis in this area would easily qualify as a threat to the peace.
All arguments lead to the conclusion that the primary source of the Security Council’s armaments-related powers should be article 26, at least in peace time. Chapter VII on the other hand should be an exceptional remedy to a concrete and existing or imminent threat to peace, breach of peace or act of aggression, making the use of article 26 impossible or inadequate30. This can be supported among others by the following arguments:
- Chapter V lays the general foundations and powers of the Council while Chapter VII only creates additional powers for specific situations, and exceptions are interpreted narrowly;
- Article 26 especially addresses disarmament, making it a lex specialis, whereas Chapter VII encompasses an indefinite range of subjects and measures;
- An unlimited use of Chapter VII would deprive article 26 of its effect, while the opposite is not true; …
Yet the Security Council chose to make an overly extensive use of Chapter VII at the expense of article 26. In a typically functionalist fashion, it disregards the rules when it is not the most effective way to achieve its goal.
2. Resolution 1172: India, Pakistan and the CTBT
India and Pakistan are among the rare states to have always carefully stayed away from the NPT and the CTBT. They have not shown a more open mind towards the TPNW. In 1998, after increasing tension, they conducted nuclear tests. The Security Council responded with Resolution 1172, passed under Chapter VII of the Charter. In this Resolution, the Council « demands that India and Pakistan refrain from further nuclear tests and in this context calls upon all States not to carry out any nuclear weapon test explosion or any other nuclear explosion in accordance with the provisions of the Comprehensive Nuclear Test Ban Treaty » (paragraph 3). In paragraph 7 the Council « calls upon India and Pakistan immediately to stop their nuclear weapon development programmes, to refrain from weaponization or from the deployment of nuclear weapons, to cease development of ballistic missiles capable of delivering nuclear weapons and any further production of fissile material for nuclear weapons, to confirm their policies not to export equipment, materials or technology that could contribute to weapons of mass destruction or missiles capable of delivering them and to
30 Simma, Bruno et al. The Charter of the United Nations: a Commentary. Third edition. Oxford,
undertake appropriate commitments in that regard ». Later, it « urges India and Pakistan, and all other States that have not yet done so, to become Parties to the Treaty on the Non-Proliferation of Nuclear Weapons and to the Comprehensive Nuclear Test Ban Treaty without delay and without conditions » (paragraph 13).
It is not contested here that the nuclear tests did constitute a sufficient threat to peace so as to trigger the application of Chapter VII. However, the Council did more than merely finding a concrete solution to an urgent threat: it imposed a set of new, abstract and temporally indefinite obligations upon India and Pakistan, in a field in which state consent is supposed to be the only source of obligations. One should bear in mind the teachings of the ICJ’s Advisory
Opinion on the Legality of the Threat or Use of Nuclear Weapons (the absence of
« comprehensive and universal prohibition of the threat or use of nuclear weapons as such31 ») and the Nicaragua case (the necessity of state consent in order to limit armaments), as well as the fact that India and Pakistan were parties to neither to the NPT nor the CTBT. In such conditions, one could hardly defend that they were in breach of any of their obligations under international law32. In Resolution 1172, what the Council did is imposing on states parts of treaties by which they had legitimately chosen not to be bound.
This failure to take sovereignty and equality into account in the face of nuclear danger was to grow rapidly into a general trend in the Council’s Resolutions. In the words of James D. Fry, « Resolution 1172 requires all States to comply with Article I of the CTBT. This language marks the beginning of a universalism movement for disarmament and arms control law, where all States – even non-parties to disarmament and arms control treaties – have had disarmament and arms control obligations placed on them by the Security Council.33 » In a way, the Council actually began to embrace the role of a remedy to the disadvantages of state consent, a safeguard against sovereign equality.
3. Resolution 1540: the culmination of the Security Council’s « quasi-legislative » powers
In addition to applying to different situations, the Council’s powers under article 26 and Chapter VII are also of a different nature: the former is legislative, the latter is executive.
31 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226,
paragraph 105.
32 James D. Fry, Dionysian Disarmament: Security Council WMD Coercive Disarmament Measures
and Their Legal Implications, 29 Mich. J. Int'l L. 197 (2008), p. 261.
Indeed, formulating plans to be submitted to member states (article 26) would merely constitute an elaborate treaty-making method. As for Chapter VII, I argue that legislative measures are out of its scope. This is a logical consequence of its rationale, which is to find an adequate solution in the face of an imminent threat. Furthermore, article 2(7) of the UN Charter (on Principles) says: « Nothing contained in the present Charter shall authorize 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 Vll. » (I add the emphasis.) Article 2(7) indicates that the use of Chapter VII should be limited to enforcement measures, especially when intervening in matters of domestic jurisdiction – such as armaments. Therefore, those measures should be concrete, specific, temporary, responsive and ad hoc. More than ever, « the Council does not ‘legislate’: it enforces Charter obligations »34.
The evolution of the Council’s use of Chapter VII reflects the evolution of its own perception of its role and powers. Its shift starts with the end of the Cold War. It was finally possible for the P-5 to agree on certain matters (including nuclear issues, which were difficult to deal with while the P-5 was divided, especially considering that they all had a right of veto). No longer as polarized and conflicted as it had been for decades, the Security Council could begin to take to another level its role of authority regarding world peace and security: it was no longer limited to safeguarding the status quo in the face of direct danger. This led to situations in which it assumed what is referred to as « quasi-legislative » functions: the use of its enforcement powers in order to legislate. Critiques over the Security Council’s new “imperial” and “hegemonic” decision-making have since arisen and increased among scholars35, and those critiques are generally aimed at certain specific resolutions. C.H. Powell
pointed out four criteria of such « quasi-legislative » resolutions: « that the Council be acting unilaterally when it purports to legislate; that it intend its norms to be mandatory (by which the use of Chapter VII of the UN Charter is generally implied); that the norms in the legislative resolution be general; and that these norms be new. »36 He also limits his study to « those resolutions by which the Council purports unilaterally to create general norms of law
34 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), p. 80.
35 Johnstone, I. “Legislation and Adjudication in the Un Security Council: Bringing down the
Deliberative Deficit.” The American Journal of International Law 102.2 (2008), p. 275.
36 Powell, C. H. “A Fullerian Analysis of Security Council Legislation.” International Organizations
binding on all states, irrespective of their consent ». According to him (in 2011), the Security Council had only produced two such resolutions37.
The first was Resolution 1373, passed under Chapter VII in response to the terrorist attacks of September 2001. According to Kent Roach, « on September 28, 2001, all fifteen members of the Security Council approved of the momentous resolution in a five minute evening meeting. No country explained why they voted for the Resolution and no country outside the 15 state Security Council was consulted. Although the Security Council acted as a world legislator by proclaiming general, binding and permanent obligations on states, it functioned with the secrecy and efficiency associated with executive action. »3839 The resolution contained a wide range of obligatory measures to be taken by all states in order to prevent terrorist acts in the future. Although most of these measures already existed in certain treaties, « the effect of the resolution is to make those obligations binding on all states, including those that did not sign or ratify the conventions » 40.
In 2004, once again under Chapter VII, the Security Council passed Resolution 1540. Through it, the Council « decides that all States shall » not only refrain from or proceed to certain behaviors, but also shall « adopt and enact appropriate effective laws » and executive measures related to the non-proliferation of chemical, biological and nuclear weapons. No less than its effects, its causes are abstract. The threats to the peace invoked to justify the use of Chapter VII were the « proliferation of nuclear, chemical and biological weapons, as well as their means of delivery », and « the threat of illicit trafficking in nuclear, chemical, or biological weapons and their means of delivery, and related materials, which adds a new dimension to the issue of proliferation of such weapons ».
One question that arises is that of the threshold of concrete danger required for international peace to be threatened. Since a nuclear war would undoubtedly be a disaster for the very existence of humankind, does the mere existence of nuclear energy suffice to establish a threat to the peace and consequently trigger the applicability of Chapter VII? For Bernard Martenczuck, the Council is « the guardian of the minimum conditions of peaceful
37 Idem.
38 K. Roach, The 9/11 Effect: Comparative Counter Terrorism (Cambridge University Press, 2011),
Chapter 2.
39 Powell, C. H. “A Fullerian Analysis of Security Council Legislation.” International Organizations
Law Review 8.1 (2011), p. 224.
40 Chesterman S., Johnstone I., Malone D., Law and Practice of the United Nations (2nd ed.). Oxford
coexistence in the international community; it is not a world government charged with the establishment of ‘world optimum order’. » It follows in his view that a threat to the peace should be an event that « considerably increases the likelihood of an international armed conflict in the short or medium term41 ». I argue that the threats invoked by the Council in Resolution 1540 did not reach the intensity threshold of article 39.
In addition to being doubtful on a legal basis, the Council’s inclusive interpretation of Chapter VII could lead to a loss of integrity for the whole UN Charter (including Chapter VII, ironically). Indeed, an unlimited and uncontrolled use of Chapter VII would render most of the Charter obsolete or at least optional (since the Council could simply use Chapter VII to circumvent any difficulty). And it could be fatal for the Charter’s credibility to be undermined by its own institutions. All law only exists as long as it is respected, but it is especially so in international law: it is easier to enforce the law upon national individuals than on international organizations and sovereign states.
Regarding Westphalian principles, it has been pointed out that « the Council [had] sought to compensate for the move away from consent-based law-making through broader participation and an emphasis on reaching unanimity in the adoption of the resolution », in order to « give a more concrete meaning to the Charter’s principle of sovereign equality »42. But if maintaining sovereign equality really was the goal of the Council, one wonders: why did it not use article 26?
An inherent vice of article 26 and Chapter VII lies in their absolute trust in the Security Council’s respect for the Charter. Chapter VII allows it to act both as the only authority both to establish the existence of a threat or breach, and as the one to react to it. In such conditions, the Council’s functionalist approach is easily understandable, considering the practical difficulties of creating consensus among member states through the path of article 26. As Daniel H. Joyner put it: « After all, why go through a lengthy process entailing consideration in the General Assembly, recommendation to the Security Council, further consideration in the Council, then recommendation to member states for enactment through a treaty that will in the end probably only be adopted by states not of serious proliferation concern, when alternatively the Council may consider the issue in the first instance and instantiate the
41 Martenczuk, B. (1999). The Security Council, the International Court and Judicial Review: What
Lessons from Lockerbie? European Journal of International Law, 10(3), p. 544.
42 Simma, Bruno et al. The Charter of the United Nations: a Commentary. Third edition. Oxford,
obligations through its own authority, in the process making the obligations universal? » 43
Quite unsurprisingly, article 26 remained dead letter. Hans-Joachim Schütz, in accordance with most authors44, explains the failure of article 26 by « the lack of unity among the major powers. »45. I argue that Resolution 1540 demonstrates a completely different reality: a unity among major powers in their intention to assume the role of an international legislator through an extensive use of Chapter VII. This interpretation may seem excessive, still what other explanation is there to the creation of such assertive Resolutions? If there really was a lack of unity, could they have been passed in spite of the P-5’s right of veto?
4. North Korea
I already mentioned the NPT’s withdrawal procedure under article X, and its three months notice to address the Security Council. In 1993, North Korea launched the procedure but abandoned it after 89 out of the 90 days needed for the withdrawal to be effective. In 2003, it renewed the process. As we said, there is no indication in article X as to how the Security Council is supposed to react, or what it is empowered to do. As it turns out, it didn’t respond at all. More precisely, it « failed to take any action because of disagreements among the P5, notably China and the United States. »46. The procedure succeeded de facto and North Korea
became the first and only state to have withdrawn from the NPT.
In 2006 and 2009 North Korea conducted nuclear tests, to which the Security Council responded respectively with Resolutions 1718 and 1874. Those two Resolutions have a fairly similar content: after expressing concern at « the challenge such a test constitutes to the Treaty on the Non-Proliferation of Nuclear Weapons » (preamble) the Security Council « demands that the DPRK immediately retract its announcement of withdrawal from the Treaty on the Non-Proliferation of Nuclear Weapons » (paragraph 3 of Resolution 1718) and « that the DPRK return to the Treaty on the Non-Proliferation of Nuclear Weapons and International Atomic Energy Agency (IAEA) safeguards, and underlines the need for all States Parties to the Treaty on the Non-Proliferation of Nuclear Weapons to continue to
43 Joyner, Daniel H. “Non-Proliferation Law and the United Nations System: Resolution 1540 and the
Limits of the Power of the Security Council.” Leiden Journal of International Law 20.2 (2007), p. 514.
44 Simma, Bruno et al. The Charter of the United Nations: a Commentary. Third edition. Oxford,
United Kingdom: Oxford University Press, 2012, p. 495.
45 Idem, p. 869.
46 Lodgaard, Sverre. Nuclear Disarmament and Non-Proliferation Towards a Nuclear-Weapon Free
comply with their Treaty obligations » (paragraph 4), and « decides that the DPRK shall abandon all nuclear weapons and existing nuclear programmes in a complete, verifiable and irreversible manner, shall act strictly in accordance with the obligations applicable to parties under the Treaty on the Non-Proliferation of Nuclear Weapons and the terms and conditions of its [IAEA] Safeguards Agreement (…) and shall provide the IAEA transparency measures extending beyond these requirements, including such access to individuals, documentation, equipments and facilities as may be required and deemed necessary by the IAEA » (paragraph 6). Paragraph 26 of Resolution 1874 mandates a « Panel of Experts » to help the Council in the implementation of Resolution 1718 for « an initial period of one year ». This mandate was repeatedly extended (Resolution 2464 recently extended it until April 202047).
It is striking that the Council, throughout the Resolution, insists on treating North Korea as though it was still a party to the NPT. Such a peculiar denial can only lead to consternation. The withdrawal was indeed conducted through the legal path (article X), not to mention that the Council failed to react when it was given a chance. This deliberate choice to overlook North Korea’s lawful decision to withdraw from the NPT in order to impose obligations upon it is one more example of the Council’s disregard for formalities.
Paragraph 6 sets an important precedent: the Council imposes the entire NPT upon a non-party, totally undermining not only article X (thus the very treaty it is imposing) but also the ICJ’s jurisprudence and the general principles of the UN in the process. It even imposes more than the entire NPT: it also deprives North Korea of its right of withdrawal under article X (since, unlike the NPT, the obligations rising from a Resolution don’t include a withdrawal procedure), and of its right to peaceful nuclear research under article IV48. Daniel H. Joyner notes: « In its NPT-related decisions concerning North Korea, therefore, the Security Council has determined that it has the authority to contravene a state's decision to withdraw from the obligations of treaties, according to those treaties' explicitly stated rights of withdrawal (…) By asserting its power over the consent of states to be bound by international law (…) [it] appears to consider itself unbound by the fundamental rules and principles of international law and the sovereign character of the member states of the United Nations, and empowered to do anything it deems expedient to bring about international peace and security. In short, it
47 UN Doc. S/Res/2464 (2019), paragraph 1.
48 Lodgaard, Sverre. Nuclear Disarmament and Non-Proliferation Towards a Nuclear-Weapon Free
appears to consider itself a legal hegemon49 ».
As I already said, North Korea is the only possessor of nuclear weapons to have voted in favor of negotiations in regard with the recent TPNW. This could be seen as a final success of the Security Council to pull North Korea back in the right path. More convincingly it can be regarded as a will from North Korea to regulate its nuclear weapons out of the despotic authority of the Security Council. If this second view is accurate, it would be an illustration of the doom of functionalists: by discrediting the rules according to which they are supposed to act, they eventually end up discrediting themselves. The Council’s conduct entails an inherent threat: that, tired of the Council’s hegemonic behavior and the P5’s hypocrisy, other states would decide to withdraw from the NPT and seek to negotiate in another and less disrespectful platform, leaving the Security Council to reign supreme on a deserted playground.
5. Article VI of the NPT
In Resolution 984 bearing « Security assurances against the use of nuclear weapons to non-nuclear-weapon States that are Parties to the Treaty on the Non-Proliferation of Nuclear Weapons », the Council seems to have accidentally misplaced an meaningful sentence among a series of empty pledges: in paragraph 8, it « urges all States, as provided for in Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons, to pursue negotiations in good faith on effective measures relating to nuclear disarmament and on a treaty on general and complete disarmament under strict and effective international control which remains a universal goal ». Later, like some others, Resolution 1540 « encourag[es] all Member States to implement fully the disarmament treaties and agreements to which they are party50 ». More recently, paragraph 5 of Resolution 1887 reiterates and « calls upon the Parties to the NPT, pursuant to Article VI of the Treaty, to undertake to pursue negotiations in good faith on effective measures relating to nuclear arms reduction and disarmament, and on a Treaty on general and complete disarmament under strict and effective international control, and calls on all other States to join in this endeavour ». The Security Council’s position is unequivocal: complete nuclear disarmament is and remains a universal goal. Logically, this position is approved by all five nuclear weapon states, since they are the P-5 states and none of them has used its veto power against the quoted Resolutions. Once again, the P-5 as Council members
49 Daniel H. Joyner, The Security Council as a Legal Hegemon, 43 Geo. J. Int'l L. 225 (2012), p. 251. 50 UN Doc. S/Res/1540 (2004), preamble.
should not be mixed up with the P-5 in their national capacities. But it is undeniable that the design of the Council would make it a perfect forum to discuss the issue – this was perfectly understood by the Charter’s drafters themselves, as is attested by article 26. Furthermore, the P-5 themselves sometimes acknowledged that their national possession of nuclear weapons could sometimes be relevant in relation with their international responsibility: Resolution 255 for instance mentions « the Security Council, and above all its nuclear-weapon State permanent members ».
In spite of this apparent consensus among the P-5, as far as I could find there has never been an actual application of article VI by the Security Council, nor has it ever initiated or served as a forum for disarmament treaties, or even for disarmament propositions in virtue of article 26 of the UN Charter. Article VI has not been much more productive out of the Council, in spite of many concrete measures proposed by scholars and activists51. As was discussed earlier, all five nuclear weapon states have ignored recent initiatives in the field of nuclear disarmament, most remarkably at the occasion of the TPNW. Overall, the P-5 states are going further and further away from trying to meet their disarmament obligations, so much so that David A. Koplow concluded an article on the subject by affirming that « if the route to efficacious enforcement has to run through the veto in the Security Council, then there simply will be no Zero Treaty »52. One explanation for this outcome is the « nuclear deterrence » policy: P-5 states perceive their own nuclear weapons as safeguards for international security and as deterrents for other states to develop nuclear weapons for themselves. In this perception, the nuclear weapon states’ disregard of their own obligations for the sake of international peace could be seen as one more example of its functionalist approach. But one important difference should be stressed between nuclear deterrence and other functionalist conducts of the Council: by disrespecting article VI, the P-5 states extended their Council-like behavior to their national obligations. Furthermore, they enjoy a factual impunity for their repeated breaches of article VI, since the only organ that could take sanctions is the Council itself. This extension of their peace-keeping authority as members of the Council to their purely national activities might dramatically increase inequality and frustration among states.
51 Dunworth, T. ‘Pursuing “effective measures” relating to nuclear disarmament: Ways of making a
legal obligation a reality’, International Review of the Red Cross (2015), 97 (899), 601–619.
52 David A. Koplow, You're Gonna Need a Bigger Boat: Alternatives to the UN Security Council for
Whether or not they are generally favorable to its activities, many authors seem to agree on the fact that the non-application of article VI constitutes a major weakness of the Security Council’s nuclear weapons policies. Even the most enthusiastic scholars deplore the lack of concrete disarmament measures in its resolutions53. Here again, the P-5 states’ attitude might discard the integrity of the Security Council and of the NPT regime altogether54. More and more, their failure to comply with their own obligation is used by other state parties as an excuse not to comply with theirs. Certain scholars even go further than foreseeing a simple loss of credibility: according to them the absence of reciprocity in the Council’s activities entails the end of any obligation for other states to obey the rules55.
III. Limitations to the Security Council’s powers 1. Constitutional limits: the UN Charter
Although the Council acting under Chapter VII is not bound by general international law56, it remains limited in its powers by the constitutional framework that is the Charter57. In the words of the ICTY: « The Security Council is an organ of an international organization, it remains established by a treaty which serves as a constitutional framework for that organization. The Security Council is thus subjected to certain constitutional limitations, however broad its powers under the constitution may be. Those powers cannot, in any case, go beyond the limits of the jurisdiction of the organization at large, not to mention other specific limitations or those which may derive from the internal division of power within the organization. In any case, neither the text nor the spirit of the Charter conceives of the Security Council as legibus solutus (unbound by law).58 »
This is consistent with wordings of the Charter itself. Namely, articles 24 and 25 (laying the general functions and powers of the Council) provide inter alia that « The Security Council shall act in accordance with the Purposes and Principles of the United Nations », and that « Members of the United Nations agree to accept and carry out the decisions of the Security
53 Bimal N. Patel, Security Council Resolution 1540 and Non-Proliferation of Weapons of Mass
Destruction, 11 Afr. Y.B. Int'l L. 301 (2003), p. 308.
54 Ford, Christopher A. “DEBATING DISARMAMENT: Interpreting Article VI of the Treaty on the
Non-Proliferation of Nuclear Weapons.” The Nonproliferation Review 14.3 (2007), p. 401.
55 Powell, C. H. “A Fullerian Analysis of Security Council Legislation.” International Organizations
Law Review 8.1 (2011), p. 222.
56 Martenczuk, B. (1999). The Security Council, the International Court and Judicial Review: What
Lessons from Lockerbie? European Journal of International Law, 10(3), p. 546
57 Idem, p. 539
58 Prosecutor v. Dusko Tadic ́, Appeals Chamber Decision on the Tadic ́ Jurisdictional Motion, Case
Council in accordance with the present Charter ». Although the interpretation of this last quotation is controversial, it does seem to imply that, should « the decisions of the Security Council » not be « in accordance with the present Charter », member states would not be obligated to « accept and carry [them] out ». It is also widely accepted that article 103 (prevalence of the UN Charter’s obligations) does not cover ultra vires uses of Chapter VII59. We have so far reviewed many potential breaches of article 2 of the UN Charter, more precisely the principle of sovereign equality. However, violation of Principles can often be difficult to prove. A claim against the Council would be stronger if it could demonstrate a clear non-compliance a substantive and unambiguous rule of the UN Charter. In such cases the decision would be ultra vires and would arguably not be binding on member states. The best example would be the aforementioned Resolution 1540, through which the Council imposed legislative obligations on all states for an unlimited duration in the field of nuclear weapons. In an article entitled Resolution 1540 and the Limits of the Power of the Security
Council, Daniel H. Joyner arrives at the conclusion that Resolution 1540 is actually not
legally binding on member states. According to him, in its making the Council breached not only the Principles of the UN (article 2(1)) but also the more concrete articles 11(1) and 26, which organize its powers in relation with those of the General Assembly. I would add to the list article 2(7), which limits Chapter VII to enforcement measures in particular when dealing with matters of domestic jurisdiction. These violations would make the Resolution an ultra
vires decision. Consequently, member states are under no obligation to comply to it.
Even if this assertion is accurate on a legal basis, it would be very difficult to follow its consequences in practice, if only because refusing to comply with Resolution 1540 would in all likelihood concretely amount to an actual threat to the peace. Broadly speaking, a breach of Resolution 1540 is, of course, politically undesirable.
2. Judicial control over the Council’s decisions
Yet, the fact that Resolution 1540 is morally right does not make it lawful, and just because the rules it lays should be respected does not mean that the international community should stand idly and silently by the new ultra vires habits of the Security Council. The rule of law – that is, the respect of the law by the institutions themselves – is a legitimate goal in and of
59 Simma, Bruno et al. The Charter of the United Nations: a Commentary. Third edition. Oxford,
