Reflections on the Lawmaking Powers of the Security Council - Quis Custodiet Consilium Securitatis?

Abstract

It is now generally accepted that the UN Security Council is capable of acting in a legislative capacity, and may lay down rules of a general character, directed at all states, for a non-defined period. By entering the field of legislative activity, the Security Council has effectively been added alongside traditional forms of international law-making such as treaty making and the development of customary international law. Yet there has been little discussion about the relationship between its legislative power and these traditional forms of international law-making. The potential for the Security Council to override, modify, or extend the scope of existing international law is immense. The first part of this contribution discusses the relationship between the UNSC’s legislative powers and other forms of international law. The second part examines the potential legal limits to this power. The Council’s foray into ‘legislating’ in a way that modifies existing international law creates new challenges and calls for a re-examination of this debate. The final part examines the potential role of the International Court of Justice (ICJ), as the “principal judicial organ of the United Nations” in regulating the relationship between the Council and other parts of international law. While most of the debate in this field has focused on the potential of ‘judicial review’ of Security Council resolutions, we argue that such a role has no basis in the Charter either explicitly or implicitly. The Court may nevertheless play a role in defining the potential limits of Security Council law-making.