UC Berkeley

Classical international law has as its foundation State consent. Based on an examination of the evolution, powers of, and limits to the Security Council, the instant paper challenges this view. It begins by outlining the development of the Security Council from its inception at Dumbarton Oaks to its present form (i.e., an entity exercising executive, legislative, and judicial functions). Then, it considers the question of legality. That is, are there any endogenous (i.e., Charter based) or exogenous (i.e., international law based) limits to the powers of the Security Council? Contrary to the orthodox view on the subject, it is contended that a proper application of the law of treaties renders it clear that the Security Council, when acting in its Chapter VII capacity, is unconstrained by law—even ius cogens norms. Further support for this argument is found on the fact that no tribunal—not even the International Court of Justice—may quash, erga omnes, Security Council’s acts. The resulting portrait depicts the Security Council as a Hobbesian Leviathan—an entity holding amorphous powers, unconstrained by law, and unaccountable for its actions. Its sole telos is the maintenance of international peace and security, and it holds the power to do whatever it deems it necessary to accomplish this desideratum. The closing question, then, is what is the Security Council? Surely, it is not—nor claims to be—a State. It also does not fit the international organizations model. All international organizations—even the mighty European Union—abide by the principle of consent. That is, they exercise their powers to the extent that their member States allow it. In contrast, lies the Security Council, which is capable of binding members and non-members, State and non-State actors. Here the paper departs, once again, from convention. It argues that given these unique characteristics, the Security Council should be considered not as an organ of the United Nations but as an autonomous actor related to, but distinct from, the Organization. Lacking any other taxonomical alternatives, and based on the writings of Jean Bodin, it contends that the Security Council should be classified as a sui generis entity holding sovereign powers over matters of international peace and security. A sine qua non for this argument is a reconceptualization of sovereignty from territorial to areal. The latter being characterized by two entities (i.e., States and the Security Council) holding concurrent absolute and perpetual powers over discrete spheres. It follows from the foregoing that no longer are international obligations based solely on States’ consent as the Security Council may override it; our understanding of international law should be revised to account for this finding.