This book is a timely contribution to the growing concerns over the power and limits of the Security Council under international law. It offers a positivist account of the Council’s work in practice, ranging from its legal nature to the use of force or not, together with the contribution of the Council to the development of the international law of peace and security, including controversial practices such as humanitarian interventions.
The book does not deal with issues such as legitimacy, fairness, and accountability because, as the authors claim, these are often used by critics as vague and undefined terms. Further, the authors maintained that the UN Charter is a treaty between States, and not the constitution of the international community, and cautioned readers not to draw domestic law analogies to understand the Council’s practices. On the question of the binding nature of Security Council Resolutions (SCRs), they identified three elements, namely: determination by the Council under article 39; evidence of chapter VII SCRs; and “decision” within the meaning of article 25. They argued that the clearest cases include all three elements. However, constructive ambiguity is often the price of compromise between State Parties.
Additionally, the authors quite beautifully summarised the arguments for and against the limits on the powers of the Council, and recognised Charter-based limitations as well as jus cogens norms, only to conclude later, hastily in my view, that the Council should act responsibly on its own. They assert, however, referring to the work of the International Law Commission, that only a handful of norms are truly jus cogens. This includes, in particular, the prohibition of torture and slavery, but excludes any general category of human rights. With respect to the chapter VII measures not involving the use of force, the authors examined articles 40 and 41 at length, and argued that the capacity of the Council to adopt a binding (often innovative) resolution remains unchallenged. The authors then examined the controversial justifications of humanitarian intervention and the responsibility to protect, and suggested that the Council could take such enforcement action to protect populations on a case-by-case basis. Such cases could include but are not limited to genocide, war crimes, ethnic cleansing, and crimes against humanity, although ultimately, the authors are doubtful that the Council would actually do so.
With respect to the International Court of Justice, it was specified that it remains underutilised by the Council, despite the various points of interaction envisaged in the Charter. The book ends by highlighting the contribution of the Council to the development of international law. In earlier writings, Wood argued that “it is misleading to suggest that the Council act as a legislature as opposed to imposing obligations on States in connection with particular situations or disputes”. However, in this book, he maintains that it was – in the 1990s – the Council’s practice and not a statement of legal constraints on the Council, and more recent
“adoption of ‘legislative’ resolutions marked a new development...Such a decision of the Council may also be termed ‘legislation’. The question is not whether the Council can legislate – it can and regularly does – but whether it is empowered to do so in a general way to address a global phenomenon, unrelated to any specific situation or dispute.” (pp. 11–14).
In sum, this monograph provides invaluable guidance on the Council and is a must-read for researchers as well as practitioners.
Competing interests
The author declares none.