The UN Security Council and the International Rule of Law

Abstract

This article considers the relationship between international law and the UN Security Council. The practical power of the Council is constituted at the intersection of its legal framing, its political legitimacy, and the interests of powerful states. This sometimes means the Council has less power than is assigned to it by the UN Charter, but it often means that it has more. It is clear that the Council sits within the international legal system, the legal limits on its action are interpreted in light of prior Council practice, and thus the meaning of ‘compliance’ and ‘violation’ of the Charter changes over time. Some transgressions of the Charter are understood as informal amendments to it; others are seen as threats to international peace and security that impel enforcement action. This ambiguity in the law and practice of the United Nations is inherent in the idea of the ‘international rule of law’. The Council straddles the unstable boundary between international law and politics, both undermining and reinforcing the distinction between them. The UN Security Council is the most powerful international organization in the history of the interstate system. Its permanent five members together account for over 60% of global military spending and their political influence is comparably dominant. In addition, the UN Charter increases their power by giving the Council preeminent legal authority over international security affairs. 1 Stockholm International Peace Research Institute, SIPRI Yearbook 2012 (Oxford: Oxford University Press, 2012). VC Journal of Zhejiang University (Humanities and Social Sciences) (2013). Published by Oxford University Press on behalf of The Institute of Modern International Relations, Tsinghua University. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This paper was first published in Chinese in Journal of Zhejiang University (Humanities and Social Sciences), 2013 Vol. 43 (5): 70-81. The Journal of Zhejiang University (Humanities and Social Sciences) has generously granted OUP the non-exclusive right to publish, use and sublicence the article in English and other languages (except Chinese) The Chinese Journal of International Politics, 2014, 1–19 doi: 10.1093/cjip/pot015