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The Impact of Security Council Decisions on Dispute Settlement Procedures
Derek Bowett 1
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The essential aim of the Special Rapporteur's Draft Articles for Part III2 on the settlement of disputes arising in connection with counter-measures is to ensure that clear restrictions on the taking of counter-measures3 are agreed and met. This is to be achieved by affording to the States involved in the counter-measures the right to submit any resulting dispute to conciliation or, failing settlement by conciliation, to arbitration, or, failing settlement by arbitration, to the International Court of Justice.
The question to be considered in this paper is how the intervention of the Security Council will affect this system for allocating responsibility. For, in principle, the Security Council could either authorize counter-measures or prohibit counter-measures. In either case the question will arise whether such a decision by the Council will be regarded as conclusive of the legality, or illegality, of the measures taken. There is an apparent illogicality in making the right of a State to take counter-measures subject to carefully-formulated conditions, but leaving the Security Council free to authorize institutionalized counter-measures, subject to no such conditions. It is this illogicality which has seemingly worried the Special Rapporteur.
The question had, of course, been anticipated in Riphagen's earlier drafts, although not limited to situations of counter-measures and peaceful settlement.4 Article 4 of Part Two5 provides as follows:
The legal consequences of an internationally wrongful act of a State set out in the provisions of the present part are subject, as appropriate, to the provisions and procedures of the Charter of the United Nations relating to the maintenance of international peace and security.
This seemingly innocuous provision is not only obscure, for its consequences are unclear, but it may in the event by singularly ill-founded. Broadly speaking, there are two possible situations: a Security Council decision is either irrebuttable, or rebuttable. The merits, or demerits, of these alternatives need to be examined separately.
I. The Two Possible Views of the Effect of Security Council Decisions
A. Security Council Decisions are Conclusive and Irrebuttable as Regards the Measures Approved or Condemned by Those Decisions
This `solution' has its attractions. Certainly in the domain of international peace and security the Council has been endowed with `primary responsibility' (Article 24(1) of the Charter) and all members agree to `accept and carry out the decisions of the Security Council...' (Article 25). It would be difficult for the Council to discharge its responsibilities if members were free to challenge those decisions and decline to implement them. Moreover, in the kind of situation covered by Chapter VII, and in which binding decisions are made, it is unlikely that there will be time for suspension of compliance whilst verification of the correctness of the Council's decision is made by some third party: speed of compliance may be essential.
On the other hand, the solution has some decidedly unattractive features. A Member State is entitled to assume that in taking any decision the Security Council will uphold international law and safeguard the legal rights of States.6 The Preamble to the Charter recited the intention `to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained'. Article 1(1) states the purpose of settling disputes `in conformity with the principles of justice and international law', and Article 24(2) commits the Council to discharging its duties in accordance with that purpose. In Article 36(3) the Council is exhorted to encourage States to refer legal disputes to the Court, so that the clear implication is that legal disputes are not the business of the Council. Indeed, the power to order provisional measures under Article 40 is `without prejudice to the rights, claims or position of the parties concerned'. And the obligation of members to accept the Council's decisions under Article 25 is limited to decisions `in accordance with the present Charter'.
In practice, however, the apparent expectation that the Council will function under the Rule of Law is not reinforced by the normal legal safeguards one would expect to find surrounding the exercise of executive powers in a democratic, constitutional system.7 There is no judicial review of Council decisions and no provision for third-party settlement of disputes between the Council and a member. The Council could agree to arbitration with a member, but has never yet done so, and even the power to request an Advisory opinion has been used only once8 by the Council in nearly fifty years. The kind of recourse to a Commission of Jurists, which was seen in the days of the League of Nations9 has never been used by the Security Council. Even more disturbing, the Council frequently fails to indicate the constitutional basis - i.e. the Charter provision - on which it acts, and discussions of legal rights or constitutionality are becoming more and more rare.10
In these circumstances, therefore, it would be surprising if members were to agree that any Council decision is conclusive as to that member's legal rights. Nor are the objections listed above met by simply asserting that the Council is a political - not a judicial - body. That is no doubt true. All the more reason, therefore, why it should not be assumed that the Council disposes of questions of legal right with finality.
This line of reasoning faces the difficulty that, in the Lockerbie case,11 the ICJ took a different view. The Court said:
Whereas both Libya and the United States, as Members of the United Nations, are obliged to accept and carry out the decisions of the Security Council in accordance with Article 25 of the Charter; whereas the Court ... considers that prima facie this obligation extends to the decision contained in resolution 748 (1992); and whereas, in accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail over their obligations under any other international agreement...12
It is true that this reasoning is confined to the supremacy of a Council decision over inconsistent treaty rights or obligations, because Article 103 is concerned solely with compatibility between Charter obligations and obligations `under any other international agreement'. Accordingly, the reasoning would not apply where a member relied on its rights under general international law.13 The issue, uncomplicated by Article 103, would be the straightforward one of whether the Court would allow a Security Council decision to prevail over the legal rights of a State under general international law.
But even in relation to Article 103 the Court's reasoning is unconvincing. It involves the following propositions.
(i) By virtue of Article 103, a Charter obligation prevails over any other inconsistent treaty provision. (Correct).
(ii) Under Article 25 members have an obligation to accept Security Council decisions. (Correct).
(iii) Therefore a Security Council decision prevails over any other inconsistent treaty right or obligation. (Incorrect).
The last step in the Court's reasoning is that it equates a Council decision with a Charter treaty obligation, and that is incorrect.14 A Council decision is not a treaty obligation. The obligation to comply may be, but the decision per se is not.
In fact, the Court's reasoning is disturbing in its possibilities. A member's Charter obligations are set out, as treaty obligations, in the Charter provisions. They are there for all to see, and every Member State has ratified them. But who knows what the Council may decide? Are members to be treated as having accepted, in advance, whatever decisions the Council might make, so that such decisions have the very same force as the Charter provisions themselves? It may be doubted whether States ratifying the Charter ever believed they were granting to the Council a blank cheque to modify their legal rights. On the Court's reasoning quite radical changes to a member's obligations could be effected by Council decisions, without any formal amendment of the Charter. This is why the last phrase of Article 25 - `in accordance with the present Charter' - is so important.15 The Council decisions are binding only in so far as they are in accordance with the Charter. They may spell out, or particularize, the obligations of members that arise from the Charter. But they may not create totally new obligations that have no basis in the Charter, for the Council is an executive organ, not a legislature. In short, the Council does not have a blank cheque.
To take an extreme example, it is possible that the surest way to restore international peace and security, in a situation created by the aggression of a powerful State A, would be for the Council to agree that A should have what it covets, namely part of the territory of a weaker State B. But could the Council decide, with binding effect, that B must transfer the territory to A in the interests of restoring peace? Instinctively, one would reply in the negative, and, clearly, the simple recital of the binding effect of Council decisions under Article 25 would provide no kind of satisfactory answer.
B. Security Council Decisions are prima facie to be Presumed Valid and Binding, but their Binding Force may be Rebutted on Proof that they are ultra vires or Contrary to the UN Charter
There is some judicial support for the view that the acts of the Council enjoy only a prima facie validity, a presumption of legality that can be challenged in the final analysis. In the Expenses case16 the Court said:
... when the Organisation takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organisation.
Similar language was used in the Namibia case,17 and in the Lockerbie case18 the Court said:
... the Court ... considers that prima facie this obligation [i.e. Article 25] extends to the decision contained in resolution 748 (1992)...
Thus, despite the Court's apparent acceptance of the binding force of Security Council resolution 748 (1992) there is some evidence that, at the merits stage, the Court might reserve the right to question its validity.
It is important that this position should be maintained, and that the Court - or for that matter any other competent judicial body - should not regard itself as precluded from questioning the validity of a Council resolution in so far as it affects the legal rights of States. If this is right, two questions arise: on what grounds would review be proper and by whom should the review be made?
1 CBE, Q.C., F.B.A. Emeritus Whewell Professor of
International Law in the University of Cambridge; Member of the International
Law Commission.
2 A/CN.4/453/Add.1 12 May 1993 and 28 May 1993.
3 See Third Report, A/CN.4/440, 19 July 1991 and Add. 1, 19 July
1991; also Fourth Report, A/CN.4/444/Add. 1, 25 May 1992.
4 There could be many situations in which, as a justification for a
prima facie unlawful act, and as a `circumstance precluding
wrongfulness', a State might invoke the authorization of the Security Council
for that act. Or, conversely, where a State condemned by the Council as an
`aggressor' might be thought to be precluded from invoking the right of
self-defence before a tribunal.
5 Provisionally adopted by the ILC in 1983. The present Rapporteur
had indicated that, in his view, this draft article may need re-examination.
See Report of the ILC on the work of the 44th Session, 1992. G.A.O.R., 47th
Sess., Suppl. No. 10 (A/47/10), 91-93.
6 See Bedjaoui, `Du contrôle de légalité des
actes du Conseil de Sécurité', Nouveaux itinéraires en
droit: Hommage à François Rigaux (1993) 69-110 who develops a
detailed argument (at 82-89) in support of this view, rejecting Kelsen's view
that the Council creates law for members. See H. Kelsen, The Law of the
United Nations: A critical analysis of its fundamental problems (1950)
294-5. Also, of the same view as Bedjaoui see P.M. Dupuy, Droit
international public (1992) 127.
7 As Bedjaoui points out ibid., at 72-75, during the Cold War the
Soviets and the Western Powers, by their antagonism, provided a form of
political check against the potential excesses of the other. But the political
checks and balances produced by the Cold War are now much weakened by the
collapse of the USSR, and it is not yet clear whether China will replace the
USSR in its role of habitual opponent of the West. Nor is there any virtue in
opposition to the West as such. The issue is the constitutional propriety of
the action.
8 Advisory opinion on the Legal Consequences for States of the
Continued Presence of South Africa in Namibia (S.W. Africa) Notwithstanding SC
Res. 276 (1970), ICJ Reports (1971) 12 (hereafter referred to as the
Namibia case).
9 See, for example, the League Council's use of a Commission of
Jurists in the Corfu Incident of 1923: League of Nations Official
Journal (1924) 523-527; and in the Aaland Isles dispute of 1920: League
of Nations Official Journal, Special Suppl. No. 3 (1921) 17-19.
10 Reisman, `The Constitutional Crisis in the United Nations' 89
AJIL (1993) 83-100, points out that, today, the USA meets privately with
France and the UK to agree policy; then with all five permanent members
before the formal Council meeting. So the crucial decisions are often
taken prior to the meetings of the Council, rather than emerging from debate in
the Council, and in consequence the official records reveal little of the real
discussions on constitutionality.
11 Case concerning Questions of Interpretation and Application of
the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie
(Libya v. USA), ICJ Reports (1992) 114 (hereafter referred to as
Libya v. USA).
13 Judge Oda's Declaration ibid., at 129 to 131 viewed Libya's rights
as arising under general international law not the Montreal Convention. He
would nevertheless have declined Libya's request because of the `mismatch'
between the object of Libya's Application and the rights to be
protected.
14 See Combaceau, Le pouvoir de sanction de l'ONU (1974) 293
who would limit the operation of Article 103 to resolving a conflict between
two equal norms (two treaties) and not extend it to a conflict between two
unequal norms (a treaty and a resolution). See also Sorel `Les ordonances de la
Cour internationale de justice du 14 April 1992...' 97 RGDIP (1993) 689,
at 714-715.
15 See the dissenting Opinion of Fitzmaurice in the Namibia
case, supra note 7, at paras. 112-113.
16 Certain Expenses of the United Nations, ICJ Reports (1962)
151, at 168 (hereafter referred to as the Expenses case).
17 Namibia case, supra note 7, at para.
20.
18 Libya v. USA, supra note 10 at para. 42. Note also
that, in his Separate Opinion at 140, Judge Shahabudeen said `The validity of
the resolution ... has, at this stage, to be presumed...'
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