That was the first major step towards having the Security Council legislate for the rest of the United Nations’ membership.Footnote 1
Press conference by Security Council president, 2 April 2004
With 14 votes in favour, the United Nations Security Council (UNSC) passed Resolution 2728, which demanded an immediate ceasefire in Gaza.Footnote 2 Despite the clear wording of “demand” indicating the binding force of operative paragraph (OP) 1,Footnote 3 the binding force of this resolution has been called into question by the United States.Footnote 4 The tragedy in Gaza not only “tests the conscience of humankind and the credibility of the Security Council”, but also, more importantly, the bindingness of UNSC resolutions.Footnote 5
This is not the first time when the binding force of UNSC resolution and the authority of the UNSC are called into question. History has seen expansions of the content in UNSC resolutions in the past decades – first settling disputes over “peace and security”, then peacekeeping, denouncing domestic policies or even setting up tribunals. These expansions have often been met with concerns regarding their legitimacy, or even accusations of ultra vires.Footnote 6 However, has the UNSC effectively expanded its role to encompass “legislation”? The UNSC would not typically be associated with “legislative power” if the United Nations (UN) were to be illustrated as a “world government” with three branches of power, as the UNSC was conceived as the “executive branch”.Footnote 7 Nevertheless, the adoption of Resolutions 1373 and 1540, where “abstract and permanent” obligations were imposed on all Member States, generated increasing concern about the existence of such a power.Footnote 8 Should the UNSC be granted the power to produce similar “legislations”? Moreover, should these resolutions be also recognized as a direct source of “international law”, creating new norms and obligations for Member States? If not, are they still binding on Member States?
The article will proceed in four parts. In the first part, the article will introduce the definition of “legislative” resolutions, examine certain resolutions and practices of the UNSC from which an intent to legislate for the entire international community can be inferred. In the second part, more opinions and evidence supporting the proposition that the UNSC “can legislate” will be examined. The third part will then focus on recent practices by the UNSC, revealing that the UNSC has largely refrained from “legislative” activities. Part IV will further address the arguments against the existence of a “legislative” UNSC in contemporary international relations, especially the fact that the UNSC has learned its lessons from the objection by Member States in previous “legislative” attempts. Finally, the fifth part will address the questions posed in the introduction: current practices cannot manifest the presence of a “legislative power”, and the “legislative” resolutions, while still binding due to force majeure or regarded as acts détournement de pouvoir, should not be considered as “source of law”.
I. The Resolutions at the centre of controversies
A. What are “legislative” Resolutions?
Numerous scholars have discussed the “legislative nature” of the UNSC resolutions. However, it is necessary to define “international legislation” before further discussing the ideas supporting the “legislative power” of the UNSC.
Historically, the term “international legislation” is the fruit of hegemony and dominance. It can be defined as “both the process and the product of the conscious effort to make additions to, and changes in, the law of nations”, often referring to contributions to the international law by superpower conferences.Footnote 9 By inferring a division of “legislators” and “law abiders”, this concept was a Eurocentric one reflecting an international system of Great Power predominance, where occasional congresses were held by leading powers creating norms for the rest of the world.Footnote 10 Unlike the traditional evolution and transformation of international norms and customs, international legislation is completed in a formalized and organized way;Footnote 11 the history of the nineteenth century witnessed how multiple states assemble, negotiate, achieve consensus, and agree on common interpretation or enforcement mechanisms in international conferences or “Congresses”.Footnote 12
As that system collapsed in the trenches of Verdun, a new and contemporary form of “international legislation” was born. Modern theory seems to be treating its members equally and replaced the congresses with international organizations or conferences. Some scholars categorized modern theories of international law-making into three types: treaty-analogy, theory of delegation, and theory of legislation,Footnote 13 all invented to accommodate the rapid development of binding materials of international organizations. In the radical form, the United Nations General Assembly (UNGA) itself is an international parliament, where the act of resolution results in binding law.Footnote 14
Another possible definition of the UNSC’s “legislative power” arises from the regional mandate missions, especially state-building efforts by international administrations. In such missions, regulatory actions are taken by the UN mandate to reestablish local legal order.Footnote 15 However, such “legislative acts” are not part of this article, which aims to discuss whether the UNSC can “legislate” for “international society”, instead of individuals or local municipalities.
Having summarized the history and theories of “international legislation”, some common elements could be extracted to define “legislative” resolutions by the UNSC. First, “legislative” resolutions must possess binding force, create abstract obligation binding all nations (ad unum omnes) with no temporal or territorial limits, and acquire the consent of Member States through an international congress or due process of legislation. Moreover, they should not be specifically related to a particular situation or a special case, and lack explicit or implicit time limitation. After the fulfilment of the requirements listed above, they constitute substantially binding rules of international law, especially if monitoring mechanisms are set up in accordance with these instruments.Footnote 16
B. The early attempts of the UNSC to “legislate”: Resolutions 1373 and 1540
Resolutions 1373 and 1540 are central to the debate surrounding the UNSC “legislation”. Resolution 1373, in its OP 1–3, addresses threats to international peace and security caused by terrorist acts, prohibiting and preventing terrorist acts, and imposing compulsory obligations of cutting off financial or other forms of support to terrorist groups. Some Member States regard it as one of the most historically significant resolutions.Footnote 17 Notably, the obligations defined in Resolution 1373 closely mirror the provisions in the International Convention for the Suppression of the Financing of Terrorism (“Financing Terrorism Convention”), which was not yet in force when the resolution was adopted. According to the 1373 Committee, the resolution did not create obligations for states, but rather implemented measures in existing provisions.Footnote 18
While the UNSC unintentionally opened the door for its “legislative power” in Resolution 1373,Footnote 19 Resolution 1540 became an intended attempt to expand its mandate. Resolution 1540 was about the Weapons of Mass Destruction (WMD), stipulating the obligations to refrain from supporting and to prevent the proliferation of WMD in OP 1–3. Evidence from press conferences by the president and drafting process all indicated an expectation of the UNSC to grow into an international legislative organ, so as to tackle the growing threat of WMD. Moreover, to obtain the legitimacy of such a “legislation”, the UNSC literally invited “all” states in the course of drafting, as “those who are bound should be heard”.Footnote 20
As a result, unlike the unanimous support for Resolution 1373, Resolution 1540 encountered significant debate during its drafting, not regarding its content, but the way it was adopted. Such “legislative attempt” was recognized as ultra vires by numerous Member States, primarily developing states holding non-alignment foreign policy.Footnote 21 Meanwhile, the sponsors (notably the five permanent members of the UNSC)Footnote 22 largely ignoredFootnote 23 or blurred the “legislative” nature of the resolution.Footnote 24
Finally, both resolutions are intrinsically “legislative”. By using the phrase “Decides that all States shall …”, both resolutions included compulsory regulations aimed at addressing general issues of global importance, without any specific geographical boundaries, in a uniform and comprehensive manner.Footnote 25 Notably, both resolutions are written in “treaty languages”; unlike previous resolutions written in vague language without any further explanation in terms and clauses, the two resolutions were drafted in “neutral and generic language”, with Resolution 1540 even providing definitions for terminologies in the footnotes of pre-ambulatory paragraphs.Footnote 26 Meanwhile, it was implemented like a “resolution” rather than a “treaty”, as the approaches vary substantially among Member States.Footnote 27 This fact, as discussed in part IV, may largely influence the judgement over the “legal” nature of the resolutions.
C. A de facto amendment to treaty law: Resolution 1422
Another potential practice of the UNSC attempting to alter existing norms may be found in Resolution 1422. Despite the seeming legitimacy derived from Article 16 of the Rome Statute, the resolution deviated from the purpose of the Statute.Footnote 28 In Resolution 1422, the UNSC deferred the investigation or prosecution by the International Criminal Court (ICC) against acts or omissions relating to UN operations, a “general” deferral of ongoing investigations or prosecutions in OP 1. However, the prevailing interpretation is that deferrals by the UNSC in Article 16 should apply to “investigation with respect to both a situation and/or an individual”, or “prosecution with respect to a specific person”,Footnote 29 not a “general” one. Combined with Article 103, the UNSC thus altered an article in the Rome Statute.Footnote 30
Unsurprisingly, Member States reacted largely negatively to Resolution 1422. Several ICC Member States viewed it as a substantial amendment to the Rome Statute and an arrogation of power.Footnote 31 Even fiercer opposition was voiced during the open meeting on 10 July 10, where the resolution was deemed ultra vires Footnote 32 and illegitimate.Footnote 33 Despite the opposition by the ICC members outside the UNSC, the resolution passed with 15 votes in favour.Footnote 34
D. Other resolutions creating new norms of international law
Apart from the creation or amendment of existing international norms and obligations discussed above, there are other instances where the UNSC was regarded as “law-making”. The establishment of various institutions or sub-organs such as the Compensation Committee in Resolutions 687 and 692, or the two ad-hoc international criminal tribunals in Resolutions 827 and 955, were unforeseen in prior international practices and not explicitly authorized by the Charter of the United Nations (the Charter). Consequently, they were regarded as a “creation” of new international rules.Footnote 35 Also, giving definition in an elaborative language, for example in Resolution 1269, was seen as “legislating”. Some thematic resolutions reaffirming international obligations for all Member States, though with no binding force, were also considered to be “legislative”.Footnote 36 However, given the absence of “abstract and binding” obligations created by the UNSC in these cases, such practices might be considered as creating precedents or accumulating state practices to form customary rule, rather than constituting acts of “legislation”.
II. Proposed sources of the “legislative power” of the UNSC
A. “Legislative power” from the Charter provisions
While the previous part focused on the practices addressing the alleged “legislative” power of the UNSC, this part moves to theoretical insights justifying such “legislative” actions.
Some scholars attribute the “legislative power” to Chapter VII of the Charter. Chapter VII does not explicitly limit the range of compulsory measures the UNSC can adopt and grants the UNSC considerable discretion in addressing threats to international peace and society. As “all states” were concerned in the mission of the UNSC according to Article 2 of the Charter, the argument follows that “legislative actions” tackling threats to international peace and security, included in the measures not involving the use of force under Article 41, are plausible.Footnote 37 A more scrutinized reading of the Charter provisions must be conducted to contradict this proposition.
First, a restrictive interpretation of Chapter VII powers is warranted by the travaux préparatoires of the Charter. Indeed, the ambiguity in Article 41, upon which the “legislative power” of the UNSC relies, was intended by the drafters during the Dumbarton Oaks meeting. A proposal for a graduated and detailed list of applicable measures was rejected in favour of a non-exhaustive enumeration to avoid “inappropriately limit[ing]” the authority of the UNSC.Footnote 38 However, despite reassurances from the Soviet Union that “the UNSC should be granted full confidence”, still, small and medium-sized powers expressed the concern that they were giving carte blanche to the UNSC,Footnote 39 which should also be taken into consideration in the interpretation in present days. While room for expansion of the UNSC’s mandate was left, the expansion must be reviewed cautiously.
Moreover, such expansive interpretation contradicts the established principles of international organizations law and practices of the UN. International law rejects the expansion of an organization’s powers through a re-interpretation of its founding instruments,Footnote 40 and the interpretation of provisions concerning the discretion of an organization must be limited to what the contracting parties agreed upon.Footnote 41 In the case of the UNSC, the question arises whether such an expansive interpretation was intended by Member States. Similar questions were presented when the UNSC attempted to expand its power to peacekeepingFootnote 42 and setting up ad hoc tribunals,Footnote 43 and in these prior circumstances, Member States consented to an expansive interpretation of Chapter VII. For instance, the international community’s consent for the competence regarding ad hoc tribunals is evidenced by the UNGA’s approval for International Criminal Tribunal of Yugoslavia (ICTY) judge elections as well as Rwanda’s request for the establishment of the International Criminal Tribunal of Rwanda (ICTR).Footnote 44 However, with regard to the “legislative” power, rejections from Member States were present. The majority of Member States believed that “Chapter VII of the Charter only envisaged action with respect to a particular situation”,Footnote 45 which clearly excludes “legislative” activities beyond temporal or geographical scope. Added together with the widespread opposition to the “legislative” resolutions expressed by member states during open meetings, an interpretation of Chapter VII encompassing the legislative power clearly exceeds the expectations of a “quasi-judicial” organ and is thus inappropriate.Footnote 46
Finally, nor can a progressive interpretation of the Charter justify the “legislative” resolutions. Some commentators believed that the tacit agreement and the repeated practices by Member States are regarded as an implied authorization to the UNSC.Footnote 47 However, it should be stressed that any such “implied authorization” must be limited to those that are “necessary” to the exercise of powers expressly granted to the organization. Under conditions where no impelling reasons indicating a self-evident necessity of the inclusion of legislative powers, such as fundamental changes to the UN system or the emergence of some devastating threat to international peace and security, has been present, no permanent expansion of power by the international organ could be justified.Footnote 48 As a result, the sole reason that the UNGA was not able to timely respond to the threat of terrorism could not stand as the justification for the UNSC to become a long-standing “legislative power”.Footnote 49 Moreover, no explicit agreement by Member States and “implied authorization” could be found during the 4950th meeting, where a significant majority of member states voiced objections to the expansion.Footnote 50 Even such a consent was present during the process of adoption in Resolution 1540, according to the observations in Part III, the Member States did not maintain the consent that the UNSC could still act as a legislative organ.
B. “Prevailing positions” of resolutions over treaties
Another argument supporting the “legislative power” of the UNSC rests on Article 103 and the Lockerbie case. It is asserted that the UNSC resolution may have prevailing effect over existing international treaties, which enables the UNSC to alter the provisions of any international treaty as it wishes, as what occurred in Resolution 1422.Footnote 51
Article 103 does not support such a reading. Indeed, Article 103 stipulates that the obligations imposed by the UNSC “shall prevail” when in conflict with the obligations arising from other treaties. However, the term “prevail” does not necessarily stand for an ultimate change in the effect of the treaty obligation. No wording in Article 103 defines the treaty obligation as void, voidable, suspended, or unenforceable.Footnote 52 In fact, in the draft articles of the Charter, the conflicting treaty obligations were not “prevailed”, but “superseded” by the Charter obligations; it was later proposed that the automatic abrogation of existing treaty obligations by the Charter was “inadvisable”.Footnote 53 A similar opinion was summarized by the International Law Commission (ILC), which stated that the treaty obligations are “set aside” when in conflict with UN obligations.Footnote 54 Thus, Article 103 should be seen as a “conflict rule” instead of “rule of legal effect”, and UNSC resolutions cannot ultimately deprive the treaty provision of any effect (“void”), but rather “the effect ceases to exist” (“suspended” or “unenforceable”).Footnote 55 Thus, instead of “changing” the law, the UNSC resolutions were actually “suspending” the effect of a legal provision.
C. The UNSC as a “legislative branch” in a “world government”
Innovative theories have also been put forward to justify the “legislative actions” of the UNSC, with “constitutionalism” emerging as perhaps the most influential one. Some invoked Kant’s concept of law and legal institutions in The Metaphysics of Morals to draw parallels between international law-making in the UNSC and the domestic parliament.Footnote 56 Some even called for a “Coke moment”, urging actions to curb the expansion of power of the UNSC, arguing that it should not simultaneously act as the executive, legislature, and judiciary.Footnote 57
While constitutional approaches have gained traction in contemporary international law, the ideal of a global constitution remains distant. The separation of each of the bodies of the United Nations in the Charter bears some resemblance to that within a domestic jurisdiction in a constitution.Footnote 58 However, no such strict sense of “division of power” or “hierarchy arrangements” can be found in the UN today; the municipal-law concepts of separation of powers “are not applicable to the relations among international institutions for the settlement of disputes”.Footnote 59 Furthermore, as will be discussed in the next part, even if the international community were to be a system working under a united constitution, the UNSC would be better described as the “executive and police” branch rather than the “legislative” one.Footnote 60 The ability to “legislate” clearly violates the constitutional principle of division of power. Finally, rarely do most states, or “delegates” of states, participate in the process of resolution-making of the UNSC, as required by Kant in the domestic parliament.Footnote 61 Overall, expecting the UNSC to become a global parliament is simply a too far-fetched analogy.
III. The step too far: practices of the UNSC in the past two decades
The previous section demonstrated that arguments supporting a legislative role for the UNSC fail to withstand doctrinal and theoretical scrutiny. To further challenge this perspective, the following section will move beyond abstract debates and examine the practices of UNSC resolutions and draft resolutions. This part will examine how the UNSC addresses similar circumstances to those presented in Resolutions 1373 and 1540 – specifically, its responses to international crises and emerging developments in international law. The UNSC has largely refrained from acting as a global legislator, which does not only stem from “objective inability” to legislate due to the divergences among major powers, but more significantly, from its “subjective unwillingness” to legislate resulting from the lessons learned in its past attempts to establish broadly applicable norms.
A. The outcome of earliest “legislations”: the implementation of Resolutions 1373 and 1540
Many commentators have focused on the wording and interpretation of Resolutions 1373 and 1540,Footnote 62 while few have discussed about their implementation compared with typical “international legislation”. Generally, the implementation of an international legislation requires “universal”, binding international obligations and clear-cut legal boundaries – the defining feature of modern legalism.Footnote 63 In contrast, Resolutions 1373 and 1540 were implemented on a case-by-case basis, prioritizing “capacity building” rather than “obligation imposing”,Footnote 64 adopting a problem-specificFootnote 65 and non-confrontational approach that differs significantly from conventional international law.Footnote 66
This approach contrasts sharply with the roles of international institutions created after the conclusion of treaties, which are generally mandated the power of strict supervision and monitoring to achieve specific goals.Footnote 67 For Resolution 1373, the Counter-Terrorism Committee (CTC) was established not only to oversee obligation enforcement but also to “offer encouragement, advice and guidance to States” on the implementation.Footnote 68 The 1540 Committee, similarly, enabled the Member States to choose from a range of approaches, from border control measures to provision of funding or transportation, any one of which could be adopted to “fulfil” obligations under Resolution 1540.Footnote 69 Moreover, the 1540 Committee emphasized a gradual “evolvement” or “expansion” of obligations as the capacity of Member States grew,Footnote 70 and focused on “empowering” Member States to fulfil their obligations by international workshops, meetings, and events.Footnote 71 Such assistance stressed “differentiation” in the “tailor-made” approaches to fulfil the obligations, acknowledging the different situations and priorities of Member States.Footnote 72
In conclusion, though these resolutions may have imposed obligations in a manner resembling legislation, they were not implemented as legislation.
B. No changes to existing customary norms: Resolutions 2178 and 2396
After a period of inactivity regarding the “legislative attempts”, the UNSC unanimously adopted another resolution adopting the “legislative” language in 2014, namely Resolution 2178. Similar to its “legislative” predecessors, the resolution was adopted with unanimous agreement,Footnote 73 as a response to the urgent threat of terrorist activities, particularly the Foreign Terrorist Fighters (FTFs) of Islamic State in Iraq and Syria.Footnote 74 In Resolution 2178, the UNSC again applied language of “Decides that member states shall …”, offering detailed guidelines to implement the obligations under Resolution 1373.Footnote 75 Resolution 2396 further elaborated on guidelines in Resolution 2178 about monitoring the activities of FTFs.Footnote 76 Resolutions 2178 and 2396 seemed to represent instances where the UNSC, having acquired a “legislative power”, repeatedly exercised the power in face of the threat of international terrorism.Footnote 77
Such a proposition must be rejected based on the content of the resolutions. A comparison of the provisions of Resolution 2178 with existing treaty and customary obligations suggests that the resolution majorly reiterated instead of created new obligations for Member States.Footnote 78 Most obligations outlined in Resolution 2178 had been proposed by the Global Counterterrorism Forum shortly before their inclusion in the resolution,Footnote 79 and such measures had already been adopted by multiple Member States.Footnote 80 For example, prevention and suppression of supports for, or transportation of FTFs in OP 5, was a reiteration of OP 2(a) and (g) of Resolution 1373; likewise, the obligation to penalize travelling as, or funding and facilitating FTF in OP 6 was also part of the obligation in OP 2(e) and (f) in Resolution 1373 and Articles 4 and 5 of the Financing Terrorism Convention.Footnote 81 The border control measures stipulated in OP 2 and 8, seemingly a novel binding obligations on Member States, were also repeatedly emphasized in previous UNSC ResolutionsFootnote 82 and widely accepted as part of The United Nations Global Counter-Terrorism Strategy.Footnote 83
Similarly, Resolution 2396 complements Resolution 2178 in strengthening the existing international obligations regarding FTF. The requirement to acquire and share passenger information in OP 11 and 12Footnote 84 was part of joint recommendations of international organizations,Footnote 85 which had become compulsory years before the adoption of the Resolution.Footnote 86 Likewise, the obligation to establish watchlists, databases, or biometric data systems in OP 13 and 15, though regarded as “new and costly obligations” by some Member States,Footnote 87 were also stipulated in previous UN Resolutions,Footnote 88 international initiatives,Footnote 89 and in OP 8 of Resolution 2178. Therefore, the wide sponsorship of these initiatives and the codification of existing general practices all indicated that Resolutions 2178 and 2396 simply reiterated existing obligations, adopting “timely and effective coercive measures … in accordance with international law” instead of new obligations for Member States.Footnote 90
Finally, Resolution 2178 marks a different process of “law-making” compared with Resolution 1422 or 1540, though all of them are allegedly based on existing international norms. The extensive sponsorship and participation in Resolution 2178 suggest a “treaty-making” process, where states agree upon collective measures, in contrast to “legislative” action in Resolutions 1422 and 1540, where a few “legislators” altered existing international norms and imposed obligations on the broader community. Unlike the controversial adoption of Resolutions 1422 and 1540, Resolution 2178 acquired wide sponsorship indicating far greater consent.Footnote 91 Moreover, it was heads of statesFootnote 92 or ministers of foreign affairs that attended the 7272nd meeting,Footnote 93 resembling a treaty-adopting conference more than a typical UNSC session. Therefore, instead of proving the “law-making” power of the UNSC, Resolution 2178 indicated a rather high threshold for validating Member States’ consent to be bound and the legitimacy of “universal obligations for all member states”. It is the consent expressed by the states, instead of the will of the UNSC by itself, that made the “legislation” possible.
C. Failed “legislative” response to international crises: Resolutions 2532 and 2565
Resolution 1373, the first known “legislative” attempt by the UNSC, was adopted in a special condition. It was a collective response to an international crisis in peace and security, namely an unprecedented threat of terrorism. However, such instances of “general and abstract” binding obligations by the UNSC remain rare in other moments of crises over the past decade.Footnote 94
The COVID-19 pandemic presented a recent test. The global situation in early 2020, marked by widespread fear stemming from “bio-terrorism” as “individuals are intimidated or terrorized about their survival on the earth”, bore some resemblance to the 9/11 attack prior to the enactment of Resolution 1373.Footnote 95 Under such circumstances, the international community all expected the UNSC to take measures to pull back hostilities and encourage cooperation among Member States to control the pandemic.Footnote 96 Had the UNSC possessed a clear and undisputed power to legislate, a resolution imposing universal and binding legal obligations could have been an ideal solution in face of a certain disease “threatening international peace and security”.Footnote 97 Such a resolution could have been presumed legitimate and legally binding,Footnote 98 and, most notably, could have encouraged instant and timely action by Member States.Footnote 99 Moreover, had the UNSC responded to the Secretary General’s appeals by means of “international treaty-making” or “international legislation”, it “could have compelled warring parties and given momentum to peace talks … at the very least, a powerful symbolic gesture and support for the multilateral management of the COVID-19 pandemic crisis”.Footnote 100
However, this time, the UNSC failed to “stand the test”. Resolution 2532, the first UNSC Resolution addressing the COVID-19 pandemic, was not produced until months after the Secretary General’s initial appeals for peace, a sharp contrast to its swift action on Ebola.Footnote 101 Moreover, given the long term of preparation and discussion, the UNSC failed to reach any agreement on the compulsory measures to be taken, as it only “demanded”, or “called upon”, rather than “decided” a legally binding obligation for all states in an armed conflict to ceasefire in OP 1-2 of Resolution 2177. Nor did the follow-up resolution on this agenda, Resolution 2565, mention any forcible obligations, as it only “called for” strengthening multilateral approaches, national vaccination plans or promoting research and capacity-building in OP 1, 9, and 12, while failing to take forcible actions to foster an overall solution. Overall, the UNSC failed to take any “legislative” or otherwise binding measures in what could be referred to as a “Suez moment”.
First and foremost, the international atmosphere, particularly the disagreement among the permanent members, was to blame.Footnote 102 The United States, as the major actor in previous “legislative” Resolutions,Footnote 103 had abandoned the position of global leadership, and instead made COVID-19 a “blame game” with China. As a result, as the Trump administration “stymied any multilateral response at the G-7, G-20, United Nations, and WHO”, the UNSC again failed to progress towards “international legislator” in the absence of its most active sponsor.Footnote 104
Moreover, the experience of the pandemic also highlighted the built-in inequity as a factor impeding the development of a legislative UNSC. The veto power of permanent members, “designed to transform a wartime alliance into a big power oligarchy”, ensured the durability of the UNSC while hindering its efficiency.Footnote 105 Moreover, such disagreement often stems from ideological, geopolitical, and national interests, instead of the principles of the UN or the mission of the UNSC.Footnote 106 As a result, as members prioritize their national interests over collective interests when voting in the UNSC,Footnote 107 repeated vetoes prevented the UNSC from acting under Chapter VII to counteract apartheid or colonialism throughout the Cold War, creating a paralysis of the UNSC though it also kept the great powers committed to the UN system.Footnote 108
This innovative “legislative power” further complicates the power struggles in the UNSC. Legislation, unlike ordinary Chapter VII actions adopted on a case-by-case basis, are not “temporal sanctions” but “lasting capacities”, regarding “abstract obligation” that applies in all circumstances and therefore puts more national interest into play.Footnote 109 Therefore, with the recurrence of a bipolar structure within the UNSC, it would be even harder to allow the permanent members to reach a common ground on imposing legislative obligations and therefore restricting themselves. Just think of that: for decades, the permanent members have been striving to keep the “purposes of the United Nations” from restricting their abilities and hampering their interests. How can they authorize the UNSC with “legislative power” and put more of their interests at stake?Footnote 110
D. No further steps when in need of development: Draft Resolutions 2024/302 and 2024/383
Resolution 1540, a creation of international obligations concerning WMDs, also stirred debates regarding the “legislative” power of the UNSC. As aforementioned, while the UNSC was not tasked with developing international law, it nonetheless sought to “close a gap in international law”.Footnote 111 Two decades later, with the rapid weaponization of outer space, the UNSC was presented a similar opportunity to act:Footnote 112 the international community was calling for “a legally binding instrument on the prevention of an arms race in outer space”.Footnote 113
Initial attempts to restrict state actions in outer space in the history of the UNSC, namely Draft Resolutions 2024/302 and 2024/383, were introduced amid underlying geopolitical tensions. Sponsored by 65 states and supported by 13 UNSC Member States, Draft Resolution 2024/302 reaffirmed existing instruments of outer space law, emphasized the need for further legal regulations, and urged the peaceful use of outer space.Footnote 114 The subsequently amended Draft Resolution 2024/383, backed by Russia and China, incorporated new provisions calling for negotiations on binding legal instruments and a total prohibition on the deployment of weapons in outer space.Footnote 115 The draft resolutions reflected two divergent approaches to outer space arms control: the United States’ preference for non-binding mechanismsFootnote 116 versus the treaty-based legally binding approach (PPWT) advocated by Russia and China.Footnote 117 The division was further evidenced by OP 8 of Draft Resolution 2023/383, which called for the prevention of “the placement of weapons in outer space” as well as the “threat or use of force in outer space”,Footnote 118 applying almost identical language in Article 2 of PPWTFootnote 119 and Amendment 2024/323 previously rejected by the Western Bloc.Footnote 120
Consequently, both draft resolutions ultimately failed due to disagreement between permanent members. Despite their non-binding nature, Russia vetoed Draft Resolution 2024/302,Footnote 121 while Draft Resolution 2024/383 was rejected by seven members.Footnote 122 The meeting intended to advance the disarmament efforts ultimately devolved into a “blame game” between two permanent members.Footnote 123
However, the divergence among permanent members is not the sole reason for the UNSC’s hesitance to engage in legislative activities. Unlike Resolution 1540, these draft resolutions avoided binding obligations and precise wordings, or definitions to key terminologies. Rather than softening the proposal given the expected objections from the adversary,Footnote 124 the sponsors’ decision to adopt such an approach was more likely to have stemmed from an acknowledgement of the UNSC’s inability to “legislate” for the international community. According to the Member States, the “legally binding” obligations on weapons in outer space are yet to be “developed” in the future rather than directly stipulated by the UNSC.Footnote 125 As emphasized by the representative of Russian Federation, the UNSC shall not “introduce new restrictions that have not been previously envisaged anywhere, including in the Outer Space Treaty”, as “the Security Council is not the place to do that”.Footnote 126 Having learned their lessons in Resolution 1540, both sides, regardless of their respective positions, refrained from introducing novel obligations into international law, focusing instead on debating plausible approaches within the existing international law.
In conclusion, a “legislative” UNSC is neither legitimate nor plausible in the current international environment, as states can no longer reach consensus on the “legislative” measures, and they can no longer maintain the position that the UNSC should and could act as a legislative organ.
IV. A “legislating” UNSC is rendered unacceptable
As revealed in the practices in Part III, the UNSC has largely avoided acting as a global legislator in the past decades, even though the situations facing the UNSC were nothing different with the crises at the start of this century. The following section will therefore turn to a more theoretical analysis, namely the legal, political and doctrinal restrictions that prevent the UNSC from becoming an “international legislator”.
A. The UNSC was not intended to be a “global legislator”
The travaux préparatories of the UN Charter indicated that the UNSC was intended to become an executive, rather than a legislative organ.Footnote 127 The representative of the United Kingdom characterized the function of the UNSC using an analogy of “the policeman or the gendarme”, emphasizing that the exercise of power by the UNSC should be “in conformity with justice”.Footnote 128 The opinion was echoed by the representatives of Panama and Uruguay, that the UNSC, as the policeman of international society, should be subordinate to the international law.Footnote 129 The representative of the United States further described the UNSC in dispute-settlement as a “jury”,Footnote 130 requiring that the “discretionary power” of the UNSCFootnote 131 must be limited by international law, especially the jus cogens.Footnote 132 Therefore, as noted by the rapporteur, when exercising the power assigned to the UNSC, “there was no intention … to let this notion of justice and international law lose any of its weight and strength as an over-ruling arm of the whole Charter”.Footnote 133
Further practices also referred to the opinion over the relationship between the UNSC and existing international law. Opinions of International Court of Justice (ICJ) judges all indicated that instead of being an organ unbound by law, the UNSC is required to “respect for the obligations arising from treaties and other sources of international law”.Footnote 134 The European Court of Justice also stated that the UNSC “presupposes the existence of mandatory principles of international law”, and “must observe the fundamental peremptory provisions”.Footnote 135 The ICTY adopted a similar position, holding that, though the UNSC may “deviate from customary law”, it remains bound by, and therefore unable to amend, norms of international law.Footnote 136 These examples all pointed to the UNSC’s inability to alter existing legal norms, unless under a fundamental change of circumstances.
Moreover, nearly all past practices of the UNSC reveal that the exercise of Chapter VII powers should be on a “case-by-case” basis. Regarding the peacekeeping operations, the UNSC has consistently responded to situations on a “case-by-case” basis,Footnote 137 and no binding thresholds, or “legislative” benchmarks, have been established beyond the vague “factors” to be taken into account.Footnote 138 Similarly, regarding the UNSC’s role in its “responsibility to protect”, the collective action by the UNSC under Chapter VII must be “on a case-by-case basis”.Footnote 139 Indeed, there is plentiful practice when the UNSC authorized individual Member States to intervene into mass atrocities.Footnote 140 Nevertheless, no “legislations” establishing a right or threshold to intervene has been enacted; the furthest existing attempt within this sphere has been limited to a “general and positive pledge” to support the UNSC intervention.Footnote 141 Therefore, even in areas where agreement has largely been reached, and the necessity of “international legislations” is called for, the UNSC refrained from taking coercive actions setting benchmarks for further operations. As a result, the interpretation of the Charter regarding the power of the UNSC should not contradict these subsequent practices, which limits it to the discretion on a “case-by-case” basis.Footnote 142
In conclusion, as Gerald Fitzmaurice pointed out, “it was to keep the peace, not to change the world order, that the Security Council was set up”.Footnote 143
B. What will a “legislating” UNSC bring us?
The UNSC has long been troubled by “democratic deficit”. It is the decisions of merely 15 Member States – more precisely, the consent of the five permanent members – that wield significant influence over international peace and security.Footnote 144 History has witnessed numerous examples of how the interests of hegemons have been transferred into the “will” of international organs, effectively acting as a “rubber stamp” for collective legitimation:Footnote 145 from the veto of the draft resolution denouncing aggression in NicaraguaFootnote 146 to the bargaining behind the agreement over Resolution 678 supporting the use of “all necessary means” to enforce peace between Iraq and Kuwait,Footnote 147 voting within the UNSC has often been regarded as “the products of expressions of loyalty to the patron”,Footnote 148 involving a conscious violation of due process.Footnote 149
Such deficit would be further exacerbated if the UNSC were to claim itself as the “legislative organ”. Even if the “legislative resolutions” could be adopted under a seemingly legitimate procedure of “those who are bound should be heard”,Footnote 150 the resulting rules would likely favour powerful states, and the obligations imposed on the international obligations would be based on the consent of hegemons, instead of the consent of the states themselves. Moreover, the vague language of resolutions often allows the hegemons to expansively interpret the clauses in favour of their interests, reading the “implied authorization” into the text to justify their interventions.Footnote 151 Thus, empowering the UNSC the “legislative power” could potentially lead to a revitalization of hegemonic international law, enabling hegemons to foster legal changes more rapidly, and finally forming “instant customs” by resorting to the UNSC resolutions.Footnote 152
A final consequence may be that the power of the UNSC could not be curbed or balanced by other international organs. In domestic law, there are procedures for determining the validity of administrative acts. However, no analogous procedure exists in the UN.Footnote 153 The UNSC lacks any formal review mechanism,Footnote 154 even by the ICJ.Footnote 155 Such a situation was deliberately created to ensure that the exercise of duty by the UNSC will not be unduly limited by the international law, though it is still bound by “principles of international law”.Footnote 156 The international community would be forced to wait for the UNSC to correct its own mistake, suffering severer consequences from the wrongful acts taken by a “legislative” UNSC.
As a result, vesting the UNSC with the power of legislation would place the international community in danger, as a body capable of creating international rules without the consent, or even a right to vote of Member States, will be created.
C. Will the international community tolerate a “legislative” UNSC?
A further challenge facing a “legislative” UNSC stems from the prevailing international atmosphere. The expansion of powers of the UNSC’s powers was facilitated by the cooperative post–Cold War international relations,Footnote 157 a period marked by optimistic pronouncements of “the end of history”, a “pacific union” that would last forever.Footnote 158 Such an expansion is rendered impossible under the tense international relations today;Footnote 159 moreover, based on the discussion in Part III, the UNSC itself has abandoned “legislation” as part of its mandate.Footnote 160 Thus, even if the past resolutions are regarded as exercises of the “legislative power”, such a proposition must be regarded as the UNSC used to be able to legislate, implying that such a power is no longer in force. In fact, the very idea of “legislation” is misleading, as it presupposes the existence of an international government and an international constitution with an explicit division of powers and can eliminate the divergence between Member States. The international community, however, has gradually drifted away from such illusory expectation: the UN Charter does show some resemblance to the Constitution of the United States,Footnote 161 while the construction of the UN organs shall not be simply analogized to the domestic tripartite division of power.Footnote 162
V. Reinterpreting the legal nature of existing “legislative” resolutions
A. The “legislative” resolutions are not formal sources of law
Clearly, Article 38 of the ICJ Statute does not explicitly include “resolutions of the UNSC” or resolutions of any other international organs. However, the absence of the UNSC resolutions from Article 38 alone cannot definitively exclude them from “sources of international law”: not all “sources” of law, either formal sources of law with binding force or material sources, were exhaustively enumerated in Article 38; nor did Article 38 include only formal sources of international law.Footnote 163 As the international law evolves, more and more sources have been incorporated into the coverage of Article 38(1),Footnote 164 which may even include the declarations of illegality by the UNSC.Footnote 165 Overall, the ICJ Statute “is a 1920 draft and not always well-suited to international law today”,Footnote 166 and existing sources of law “cannot easily be placed into the categories of treaty and customary law, at least as these terms have been applied traditionally”.Footnote 167
The centre of the debate lies in the definition of international law. Decades of scholarship have yet to yield consensus on the fundament of international law.Footnote 168 It is no simple matter to draw a clear distinction between the non-legal and the legal, between what does not constitute an international norm and what does.Footnote 169 Thus, a more promising way might start from the opposite, namely, “what is not international law”. Sources of international law, regardless of their forms, should always bear some inherent traits; a certain material may create a set of “binding obligations”, but may still fail to become a “source of law” if it fails to exhibit any of the traits.Footnote 170
One essential trait of international law may be “voluntariness”. This principle can be traced back to the early days of international law, where “the rules of law binding upon States therefore emanate from their own free will”.Footnote 171 The tradition persists today, as “modern international law is rooted in acceptance by states which constitute the system”,Footnote 172 and “without absent voluntarism, international law would no longer be performing its functions”.Footnote 173
Another important nature is the “legitimacy” of the sources. Legitimacy requires that the rules should be rooted in established practices or an “extra-behavioural value structure”.Footnote 174 International organizations have largely changed the way lawyers perceive the “legitimacy” of newly created legal rules:Footnote 175 a “legitimate” creation of legal norm by international organs should ensure that the outcomes are sufficiently reflective of their viewpoints, and the authority of the prescribers of such norms.Footnote 176 Without legitimacy, even widely obeyed edicts, such as orders from a gangster, lack legal character.Footnote 177
The obligations set in the UNSC resolutions are not “voluntary” enough to be regarded as part of international law. For the international obligations by other international organs, a member state may challenge their legal irrelevance, or assert the inapplicability of such obligations for the irregularity or ultra vires character,Footnote 178 making these obligations closer to the general “voluntary” obligations in traditional sources of international law. Even if the wide acceptance of an international organization’s resolution may constitute evidence of customary international law,Footnote 179 a state may still “escape” the binding force of a customary rule by becoming a persistent objector. However, no such flexible “voluntariness” could be found in UNSC resolutions. To ensure the essential functions and powers under the Charter, the resolution has binding force even for “those members of the Security Council which voted against it and those Members of the United Nations who are not members of the Council”.Footnote 180 Indeed, Member States voluntarily accepted obligations to “carry out the decisions of the Security Council” in Article 25 of the Charter, but they may not voluntarily accept those obligations set in the UNSC resolutions. This is analogous to ICJ decisions, as the parties “voluntarily accept” the binding force of the judgments under Article 58 of the Statute though at least one of the parties may disagree with the obligations. Since the decisions of the ICJ are not part of sources of international law, neither should be the decisions of the UNSC.
“Legitimacy” poses an even greater challenge. To ensure the legitimacy of the “international legislation” in international organs, the process of law-making should be “as transparent as it appears to be” so that “the interests and wills of states are better served”.Footnote 181 However, the undemocratic and unrepresentative structure of the UNSCFootnote 182 indicates that it generally adopts resolutions reflecting a “structural bias in favour of the major powers”.Footnote 183 Some even claimed that the UNSC could not even meet “the basic standard of legitimacy”,Footnote 184 as its resolutions fail to conform to the fundamental requirement of procedural legitimacy including democracy, transparency, and accountability,Footnote 185 and are inconsistent in applying legal norms.Footnote 186 Furthermore, as previously discussed in part III of this article, Member States do not generally regard the UNSC as empowered with the “authority” to legislate or reinstate international law.
As a result, the UNSC, though capable of defining the “desired law”, cannot transform it into “established law”.Footnote 187 The resolutions themselves are not “international law”; they can be an “order to all”, but still, they are not “sources of law”.
Instead of regarding the UNSC resolutions as “sources” in Article 38(1) or the statute, they should be viewed as “evidence” of international law in Article 38(2). Long has the ICJ recognized the applicability of resolutions as “evidence of the international custom”Footnote 188 or subsidiary means to identify international rules and principles.Footnote 189 The ILC Draft articles further reinforce this view, stating that the practices of international organizations within their competence should be “functionally equivalent to the powers exercised by states”, and therefore “contribute to the formation or expression” of customs.Footnote 190
In conclusion, these “legislative resolutions” do not per se form formal sources of international law. Rather, they serve as evidence of the formation of new international norms. For Resolution 1373, the UNSC accelerated the formation of international customs by effectively compelling every state into implementing the obligations under existing counter-terrorism treaties.Footnote 191 For Resolution 1540, it promoted the membership of major WMD treaties, and by requiring countries to report on capacity-building activities, the UNSC fostered the potential for WMD regulations to become customary norms.Footnote 192
B. The validity of the “legislative” resolutions
Despite the presumption of legality afforded to resolutions of international organizations, significant questions arise regarding the validity and legal effect of the UNSC’s “legislative” resolutions. Indeed, resolution of international organizations shall be presumed as legal before proved ultra vires. However, the UNSC is not mandated by Member States a function to legislate, and the UNSC was, indeed, taking actions “irregular as a matter of that internal structure”.Footnote 193 Therefore, it seems that they should thus be regarded as ultra vires. The domestic law concept of a “voidable” ultra vires act is not analogous to international organizations,Footnote 194 and the UNSC resolutions may be declared void ab initio, whose incompliance incurs no international liability at all.Footnote 195 Notably, nullifying the UNSC resolutions risks disproportionate legal effect and grave consequences, warranting caution in declaring the illegality of such actions.Footnote 196
It should first be noted that the notion “bodies and third parties may be bound by acts ultra vires” does not apply to the UNSC resolutions.Footnote 197 The former notion was adopted by the ICJ, due to its inability to review the decisions of other UN organs and the limited binding force of an advisory opinion.Footnote 198 As a result, Certain Expenses sidestepped the problem of ultra vires acts of UNGA missions, and it is thus not analogous to the UNSC resolutions.
Similarly, nor may the “partially binding” approach to the acts ultra vires be applied to “legislative” resolutions.Footnote 199 Utile non debet per inutile pitari applies only when the provisions in question can be treated separately from the rest of the text.Footnote 200 However, the paragraphs deemed ultra vires namely, those establishing abstract and binding obligations for member states - were the essential and deliberate condition for the “legislative” resolutions to take effect. Thus, declaring these resolutions “partially binding” would make them devoid of purpose.
Moreover, invoking “necessity” to expand the UNSC’s mandate is insufficient to justify the binding force of “legislative” resolutions. Judge Bustamante, in assessing the legality of the intervention by the UNGA into the mandate of the UNSC, interpreted these practices in a manner that is not conflicting with the Charter provisions. Instead of regarding such activities as upsetting the “spheres of competence” set in the Charter, the UNSC “returned the mandate” back to the UNGA “by virtue of a case of force majeure”Footnote 201 – a term subsequently defined as “necessity” in the ILC Draft Articles.Footnote 202 However, the threshold for “necessity” is exceptionally high, requiring that it must be “the only means” to safeguard against a grave and imminent peril to the essential interest.Footnote 203 Just as argued in Part II, a directly “legislative” resolution was not the only course of action for the UNSC. Furthermore, the UN itself acknowledged that it “has not as yet encountered a situation of ‘necessity’” as of 2011.Footnote 204 Consequently, necessity is not a valid ground precluding the unlawfulness of the “legislative” resolutions.
Thus, a new concept is required to justify the legal effect of “legislative” resolutions. A middle ground must be found between total ultra vires and total intra vires; while the drafters’ original aims were circumvented, no explicit violation of certain Charter provisions occurred. Such a middle ground is characterized as détournement de pouvoir. Détournement de pouvoir, in its classical definition, was an act exercised by an organ or agent “for a purpose other than that for which its powers have been conferred”.Footnote 205 Unlike excès de pouvoir or ultra vires, which describes acts whose author lacks competence or is explicitly prohibited from doing so,Footnote 206 détournement de pouvoir involves no violation of statutory provisions, but is applied to describe an abuse of discretionary power.Footnote 207
The idea of détournement de pouvoir has long been rooted within the discretionary acts by states in international law. It is well established that states shall take actions with good faith and in accordance with public interest of international community,Footnote 208 which was later known as the prohibition against abuse of right.Footnote 209 Under such circumstances, exercising freedom conferred upon states in a manner that is outside its initial purposes, or détournement de pouvoir by states, was repeatedly recognized just as in domestic law.Footnote 210 One notable example, though not directly pointed out by the ICJ, was in the Corfu Channel case: the British Fleet exercised the right of innocent passage to test Albania’s attitude;Footnote 211 such acts should be regarded as wrongful, though no pecuniary penalty was imposed on the United Kingdom.Footnote 212 Other examples recognized as détournement de pouvoir may include the German disposal of properties until the moment of actual transfer of sovereignty in Polish Upper Silesia,Footnote 213 and the French control cordon which was actually a customs barrier under the guise in Case of the Free Zones.Footnote 214 In both cases, the rights in question were exercised against their purposes in international instruments, and reflecting the recognition of acts détournement de pouvoir in international law.Footnote 215 Finally, the reasoning of Arbitral Tribunal in Walter Fletcher Simth Claim also regarded Cuban expropriation of the claimant’s property, though within the discretionary power of states, was not “in good faith, for the purpose of public utility”, and thus was declared inappropriate.Footnote 216
While an abuse of right by a state can constitute détournement de pouvoir, the same logic applies analogously to the exercise of the rights by international organizations. For example, the Treaty establishing the European Coal and Steel Community endowed the Court of Justice of the Community to review acts that are détournement de pouvoir,Footnote 217 as long as such acts are not inspired by a Community interest.Footnote 218 Moreover, the major obstacles to the recognition of détournement de pouvoir in state actions, namely, the freedom of states is not analogous to the power of administrative organs, does not exist with regard to international organizations,Footnote 219 as the law of international organizations precisely call for a limited exercise of their functions.Footnote 220 Namely, the need for “order and legality” is more keenly felt in international relations than domestic administrative institutions, and that arbitrariness of international institutions can have infinitely more disastrous effects on the community than in national societies.Footnote 221 Thus, the discretion of international organizations must be limited within the statutory provisions and purposes of the institution, which justifies the applicability of détournement de pouvoir.Footnote 222
As a result, the abolition of posts with the object of removing individual officers by the Administration of the United Nations, outside the objectives of the United Nations, could constitute acts détournement de pouvoir.Footnote 223
“Legislative” resolutions by the UNSC fall under the category of détournement de pouvoir. The discretionary power of the UNSC to adopt resolutions was limited by the “purposes and principles of the United Nations”, as stated in Article 24 of the Charter; thus, resolutions adopted not in violation of Chapter VII of the Charter, while inconsistent with such purposes, can be referred to as resolutions détournement de pouvoir.Footnote 224 With respect to the “legislative” resolutions, though the UNSC was never designed as a legislative organ, nor were there any explicit prohibitions to “legislative” actions adopted by the UNSC;Footnote 225 the adoption of “legislative” activities, as a result, seemed to be within the boundary of discretion mandated to the UNSC. However, such resolutions were adopted, as aforementioned, in an attempt to expand the mandate of the UNSC, in a manner that was never foreseen by the founders of the United Nations.
Some final strikes should be added to address the effect of these “legislative” resolutions. Acts détournement de pouvoir, though the legal consequence of which were never fully discussed,Footnote 226 are less likely to incur severe consequences of total nullity like ultra vires ones. Indeed, détournement de pouvoir may give rise to the annulment of the act, but actions can also be initiated to seek damages to compensate for the harm, rather than directly declaring the act void ab initio.Footnote 227 Moreover, acts détournement de pouvoir could be justified if “a decisive reason” would be available.Footnote 228 As reflected in the examples above, not all acts détournement de pouvoir, either by states or organizations, were declared void ab initio; neither the wrongful use of immunity passage by the United Kingdom, nor the custom barriers by France, was called into question. As a result, the validity of acts détournement de pouvoir was at a middle ground between total nullity and total validity; their effect must be decided on a case-by-case basis.
Thus, even if the UNSC enjoys no “power to legislate”, the existing “legislative resolutions”, as acts détournement de pouvoir, could still be regarded valid and binding. Rightful reasons justifying the effect of “legislative” resolutions were indeed present: the Resolution 1373 was in a “state of emergency” right after the terrorist strike in 9/11; Resolutions 1540, 2178, and 2396 were adopted to coordinate the threat to international peace and security imposed by WMD and FTF. Moreover, compared with an ultra vires indicating a totally block to the “legislative” power, détournement de pouvoir would allow the UNSC to evolve into a global “legislator” in the future without substantial amendment to the Charter, provided Member States collectively endorse such discretion. As a result, by resorting to détournement de pouvoir, the awkward scenario of Member States calling the UNSC resolutions in question, suspecting them as ultra vires, as shown in the Kadi case,Footnote 229 could be avoided.
VI. Concluding remarks
The international lawyers expected the rise of a “legislative” UNSC, claiming that “the door has been opened” and “the first step was taken”.Footnote 230 However, growing tensions within the UNSC, combined with the waning confidence of the international community in a “benevolent legislator”, have shattered the optimistic prediction. While the “legislative” resolutions retain their binding effect on Member States, they have not been successfully incorporated into a “source” of international law. This is also as revealed by the practices of the UNSC in recent years.
These unsuccessful “legislative attempts”, rejected on both legal and political grounds, underscore the significance of “state consent” in the law of international organizations, even after decades of institutional development. Both the unwillingness to legislate by Member States within the UNSC and the political disorder outside the UNSC contributed to this outcome.
First, the Charter itself presented as a constraint on the development of the UNSC. The UNSC was not authorized by the Charter to take legislative actions in the Charter, either in Chapter VII or in Article 103. After all, the UNSC was restricted within the mandate agreed upon in the Charter – being an interpreter and enforcer of international law, rather than the creator of international norms.
Moreover, the endeavour to transform the UNSC into a legislative power failed due to the collective unwillingness of states. The international community at large rejected a “legislative” UNSC since the beginning of such a development. In the recent decade, having recognized the reluctance from member states outside the UNSC, the controllers of the UNSC themselves also refrained from adopting legislative actions. The structure of the UNSC, especially the distribution of power among permanent members, further amplified such disagreement and contributed to the stagnation of any legislative ambitions. As a result, recent practices revealed that the UNSC refrained from developing into an “international legislator”.
Finally, the “step too far” that the UNSC attempted to take provides a valuable lesson, not only for the UNSC itself but for broader reform efforts within international organizations that seek to expand their powers in an increasingly interconnected world. The tug-of-war between Member States and international organizations, evident since the earliest advisory opinions of the Permanent Court of International Justice,Footnote 231 will continue to shape the future of international governance. This tension underscores the limitations on institutional ambition in the absence of broad-based consent and legitimacy, as well as the influence of powerful states.
Acknowledgements
The author would like to thank Associate Professor XU Xiaobing for his instruction, and the reviewers for their comments.
Funding statement
None.
Competing interests
The author declares none.
WANG Sijie is a bachelor student at Koguan School of Law, Shanghai Jiao Tong University.
