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The extent of bound or unbound United Nations security council by law
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Journal of Legal, Ethical and Regulatory Issues Volume 24, Special Issue 4, 2021
THE EXTENT OF BOUND OR UNBOUND UNITED
NATIONS SECURITY COUNCIL BY LAW
Ahmad Mohammad El-Refaie, Applied Science Private University
Abedalrzag Aldalbeeh, Al-Balqa Applied University
Ahmad Alsharqawi, Applied Science Private University
ABSTRACT
With a view to discussing the extent to which the view “[t]he Security Council is
unbound by law” that is agreeable on the basis of the available evidence considered, this
research will begin by first looking to provide an understanding of what the United Nations
Security Council (UNSC) is and what it does in practice in the context of the development of
international law in this area. Allied to this, along with considering the way in which the
UNSC operates internationally, there is also a need for this research to look to show an
understanding of the criticisms to have been levelled against the organization. This is because
it is arguable that it is the law itself that applies to the way in which the Council operates that
is arguably the biggest problem for it going forward in view of the fact that it is somewhat
flawed as a result of the position of its permanent member states. In addition, there is also a
need for this research to provide an analysis of as to whether and how the UNSC could be
reformed with a view to improving in the context of the development of international law in
this regard. Finally, there is a need to conclude with a summary of the key points to have been
derived from this research analysis with regard to the validity of the aforementioned view that
“[t]he Security Council is unbound by law”.
Keywords: United Nation Security Council, United Nation, International Law, UNSC,
International Organisation.
INTRODUCTION
The Security Council bears the primary responsibility for the maintenance of
international peace and security. The Security Council has 15 members, and each member has
one vote. Under the United Nations Charter, all member states are obligated to comply with
council decisions. The Security Council takes the lead in identifying a threat to peace or an act of
aggression. It calls on the parties to the conflict to settle the dispute by peaceful means and
recommends methods of accommodation or terms of the settlement. In some cases, the Security
Council can resort to imposing sanctions or even authorize the use of force to maintain or restore
international peace and security.
In this study, we deal with the conditions that the UN Security Council must adhere to in
issuing its decisions, In order to give it the character of legitimacy, we also address the reference
competent to examine the extent of legitimacy these decisions are based on the important
position, the UN Security Council occupies in international relations. The Security Council has
broad powers under the provisions of the United Nations Charter, especially with regard to
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Citation Information: El-Refaie, A.M., Aldalbeeh, A., & Alsharqawi, A. (2021). The extent of bound or unbound United Nations
security council by law. Journal of Legal, Ethical and Regulatory Issues, 24(S4), 1-7
Journal of Legal, Ethical and Regulatory Issues Volume 24, Special Issue 4, 2021
conservation of International peace and security, and it carries out the tasks entrusted to it
through the decisions it issues in this regard Concerned, and he must adhere to the conditions
necessary for issuing decisions so that they are consistent with texts The Charter and Norms of
Public International Law. The Security Council may issue some of those decisions without
observing the required conditions, the matter that marks them Illegality.
Whereas it is impossible to rely on the Security Council to correct its decisions tainted
with illegality in effect the principle says: No one can be both an opponent and an arbiter, so it is
imperative to find a reference the authority to consider these decisions to monitor their
legitimacy.
With a view to discussing the extent to which the view “The Security Council is unbound
by law” that is agreeable on the basis of the available evidence considered, this research will
begin by first looking to provide an understanding of what the United Nations Security Council
(UNSC) is and what it does in practice in the context of the development of international law in
this area. Allied to this, along with considering the way in which the UNSC operates
internationally, there is also a need for this research to look to show an understanding of the
criticisms to have been levelled against the organisation. This is because it is arguable that it is
the law itself that applies to the way in which the Council operates that is arguably the biggest
problem for it going forward in view of the fact that it is somewhat flawed as a result of the
position of its permanent member states. In addition, there is also a need for this research to
provide an analysis of as to whether and how the UNSC could be reformed with a view to
improving in the context of the development of international law in this regard. Finally, there is a
need to conclude with a summary of the key points to have been derived from this research
analysis with regard to the validity of the aforementioned view that “[t]he Security Council is
unbound by law”.
RESULT AND DISCUSSION
What is the UNSC and How did it Come into Being?
Much like the rest of the UN in its entirety, following World War II the UNSC was
created to address the League of Nations’ failure to maintain peace and security between
countries internationally. However, at least to begin with, the UNSC was ostensibly restricted by
the divide between the then USSR and US during the course of the Cold War; although it is also
to be noted that the Council did provide for the authorisation of interventions in different
scenarios including the Korean War (Hanny, 2008).Consequently, it was only as a result of the
USSR’s collapse that there was an increase in the peacekeeping efforts to have been perpetrated
by the UNSC in array of missions throughout Africa and the Middle East in the ensuing years
(Hanny, 2008).
The UNSC is recognised as one of the United Nations’ (UN’s) five principal organs that
provides for the maintenance of peace and security internationally along with accepting new UN
members and providing for the approval of any variations to the UN Charter 1945 (Lowe et al.,
2008). By way of illustration, the UNSC provided for the establishment of peacekeeping
operations and international sanctions along with military actions authorisation by being the only
body of the UN capable of issuing binding resolutions upon its Member States (Lowe et al.,
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Citation Information: El-Refaie, A.M., Aldalbeeh, A., & Alsharqawi, A. (2021). The extent of bound or unbound United Nations
security council by law. Journal of Legal, Ethical and Regulatory Issues, 24(S4), 1-7
Journal of Legal, Ethical and Regulatory Issues Volume 24, Special Issue 4, 2021
2008). Typically, UN peacekeeping forces that the member states themselves provide voluntarily
and are independently funded outside of the overall budget of the UN provide for the
enforcement of resolutions of the Security Council. For example, it is to be noted that as of 2015
there were more than 106,000 peacekeeping troops and 18,000 civilians involved in
peacekeeping operations and special political missions around the world as a mark of the
significance of the UNSC in the context of maintaining peace and security internationally.
Allied to this, there is also a need to recognise the fact that there are currently fifteen
countries that are members of the UNSC of which five (i.e. the US, Russia, China, France and
the UK) are permanent members that are able to provide for the veto of any Security Council
resolution itself that is especially substantive (Bosco, 2009). The Security Council resolutions to
have been affected in this regard include those pertaining to new countries admission as
additional member states whilst the other ten countries are non-permanent members regionally
elected for two-year terms (Bosco, 2009). In addition, there is also a need to recognise the fact
that the presidency of the UNSC monthly rotates between its member states. Critics of the
council often describe it as an undemocratic international body, and argue it fails its principal
task, mainly because of the veto power of the permanent members (Bosco, 2009).
It is actually the role of the UN with regard to the achievement of collective security that
the UN Charter 1945 defines that serves to authorise the Council to act with regard to a number
of different matters of international concern (Fomerand, 2009). These matters have been
ostensibly recognised as including: (1) investigating threats to international peace; (2)
recommending means for bringing about a dispute’s peaceful resolution; (3) calling upon other
member states to interrupt relationships economically along with different means of
communication; (4) providing for diplomatic relations severance; and/or (5) the enforcement of
decisions (Fomerand, 2009). Moreover, although the UNSC provides for the recommendation of
new UN member states and the new Secretary-General to the General Assembly, traditionally the
Council interpreted its own mandate as being to deal with the matter of security militarily.
The Role of the UNSC in International Law
The UN Charter 1945 at Chapter VI provides that the UNSC can “investigate any dispute,
or any situation which might lead to international friction or give rise to a dispute” (Deplano,
2015). Then, dependent upon the Council’s findings in this regard, they could “recommend
appropriate procedures or methods of adjustment” where it is believed that the particular
situation under consideration could provide for the endangering of the maintenance of peace and
security internationally (Deplano, 2015). However, usually, such recommendations are not
deemed to be binding in view of the fact that they do not have a sufficient mechanism of
enforcement (Fomerand, 2009). That this has proved to be the case in practice is despite the fact
that Chapter VI resolution are still largely considered to be “directives by the Security Council
and differ only in that they do not have the same stringent enforcement options” which have been
taken to include military force (Zunes, 2004).
Nevertheless, the UN Charter 1945 at Chapter VII provides the UNSC with significantly
wider power to be able to determine the measures to be completed in those circumstances which
involve “threats to the peace, breaches of the peace, or acts of aggression” (Deplano, 2015).
Therefore, this effectively means that, in such circumstances, the options available to the Council
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Citation Information: El-Refaie, A.M., Aldalbeeh, A., & Alsharqawi, A. (2021). The extent of bound or unbound United Nations
security council by law. Journal of Legal, Ethical and Regulatory Issues, 24(S4), 1-7
Journal of Legal, Ethical and Regulatory Issues Volume 24, Special Issue 4, 2021
are not considered to be limited to the making of recommendations since they can act, for
example, through military force “to maintain or restore international peace and security”.
With this in mind, Chapter VII of the UN Charter 1945 provided the basis at law for the armed
action to have been taken by the UN in instances including Kuwait and Iraq in 1991 and Libya in 2011
(Kennedy, 2006). This is because all of the decisions that are reached under Chapter VII of the Charter
are considered to be binding upon member states of the UN through the work of the Security Council
(Fomerand, 2009).
It is also to be noted that, in the spring of 2006, UNSC Resolutions 1674 and 1706
reaffirmed member states responsibility to protect populations from genocide, war crimes, ethnic
cleansing and crimes against humanity (Mikulaschek, 2010). These two Security Council
resolutions commit the organisation to protect civilians during the course of an armed conflict
from the aforementioned mass atrocity crimes (Mikulaschek, 2010). There is also a need to
recognise the fact that the UNSC has the authority under the Rome Statute of the International
Criminal Court 1998 to refer cases to the Court where it would otherwise be without the
jurisdiction to act (Statute, 1998; Article13). This power was actually exercised for the first time
by the Council in the early spring of 2005 when “the situation prevailing in Darfur since 1st July
2002” was referred to the Court which was important because it would have otherwise lacked
jurisdiction in view of the fact Sudan is not a party to the Statute (Wadhams, 2005).
At the same time, however, the UN Charter 1945 at Article 27 provides the decisions of
the UNSC regarding all substantive issues need nine member states to cast their vote in the
affirmative (Alsharqawi et al., 2021) with the caveat that a permanent member state’s negative
vote prevents a specific proposal from being adopted even where the required votes have been
received (Fasulo, 2004). Moreover, all of the Council’s five permanent members need to actively
concur with a view to either amending the UN Charter 1945 or recommending a new member
state (Fomerand, 2009). Nevertheless, it is still to be noted that procedural matters may not be
voted to avoid having to discuss a particular issue along with particular decisions specifically
related to permanent member states (Fasulo, 2004). However, most vetoes by permanent member
states of the UNSC are not utilised in the context of fundamental situations pertaining to the
maintenance of international security but for, for example, blocking a member state’s admission
(Fasulo, 2004).
Criticisms of the Role of the UNSC in International Law
It is arguably the power of veto for the UNSC’s permanent member states that is one of
the most significant problems with the operation of the Council because it was effectively forced
upon the smaller countries through a threat that there would otherwise not be any UN (Wilcox,
1945). One of the earliest vetoes was made by the then Soviet Commissar, Andrei Vishinsky
who blocked a resolution regarding French forces withdrawal from their Syrian and Lebanese
colonies in early 1946 that created the standard it was possible for permanent members to utilise
the veto regarding issues beyond simply war and peace (Bosco, 2009). In the ensuing years, the
USSR proceeded to veto the admission of a number of different countries as UN member states
for at least a number of years. Furthermore, both France and the UK utilised the power of veto to
provide for the avoidance of the UNSC’s condemnation of their behaviour during the Suez Crisis
of 1956 (Bosco, 2009). Moreover, the US carried out their first veto in 1970 when they blocked
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Citation Information: El-Refaie, A.M., Aldalbeeh, A., & Alsharqawi, A. (2021). The extent of bound or unbound United Nations
security council by law. Journal of Legal, Ethical and Regulatory Issues, 24(S4), 1-7
Journal of Legal, Ethical and Regulatory Issues Volume 24, Special Issue 4, 2021
action on the part of the General Assembly in what was then Southern Rhodesia before then
proceeding to block an array of further resolutions it deemed to be anti-Israel whilst also looking
to safeguard its interests in other countries including Korea and Panama (Bosco, 2009). Finally,
it is also to be noted that the UNSC’s permanent members have also previously vetoed potential
Secretary-General Candidates in the past (Kennedy, 2006).
However, there is also a need to recognise the fact that the UNSC’s critics have often
described it as being a somewhat undemocratic international body which means that it serves to
fail to fulfil its principal task largely in view of permanent member states power of veto (Grieger,
2013). When looking to consider the existence of the Security Council to date, it is to be noted
that “glaring failures had not only accompanied the UN's many achievements, they
overshadowed them” as with the ethnic massacres in Rwanda and Bosnia in recent years largely
due to a lack of reliable military resource (Kennedy, 2006). This was despite the fact that the UN
had been found to have been successful in two out of every three of its peacekeeping efforts to
date along with bringing about fewer wars, genocides and human rights abuses since the Cold
War’s conclusion (Dobbins et al., 2005). Such a view is supported the fact that it would seem
that the UNSC’s five permanent members effectively established an exclusive nuclear club
which dealt with both their political and strategic interests like looking to protect oil-rich Kuwait
in 1991 (Rajan, 2006).
Both the relevance and effectiveness of the UNSC has also been queried due to a lack of
real consequences for a resolution of the Council’s violation for those countries (Deni, 2007). By
way of illustration, in the midst of the crisis that arose in Darfur, elements of the government of
Sudan permitted the Janjaweed militias to killing thousands of the civilian population (Deni,
2007). In addition, the Security Council was criticised for failing to resolve the Arab-Israeli
conflict due to the council failing to “to show leadership and abdicating its responsibilities”
whilst somewhat contradictorily also being criticised for devoting an excessive time to its
resolution (Fomerand, 2009). The perception of the Security Council is also not helped by the
fact that the UN Charter 1945 provides it with all three powers of the legislative, executive, and
judiciary because this led to the Council being criticised for having an “illogical, unjust and
completely undemocratic structure and mechanism” (Fasulo, 2004).
The Potential Reform of the Role of the UNSC in International Law
In view of the fact that evaluations of the effectiveness of the UNSC’s role in the context
of applicable international law has proved to be somewhat mixed, there have some significant
calls for the reformation of the organisation that even predates the first meeting of the 1946;
although there is also a lack of consensus regarding how its structure needs to be changed
(Grieger, 2013). However, whilst it is arguable that everyone may be in agreement “that the
present structure [of the UNSC] is flawed” on the basis of the analysis to have been completed
during the course of this research, the “consensus on how to fix it remains out of reach”
(Kennedy, 2006). Some academics that are working in this area have argued that a lot of the
problems with the UNSC may be resolved by increasing how many permanent members of the
UNSC there are with the strongest demands for permanent seats coming from Brazil, India,
Germany and Japan (Zunes, 2004).
The reason for this is that whilst India and Brazil have been recognised as being two of
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Citation Information: El-Refaie, A.M., Aldalbeeh, A., & Alsharqawi, A. (2021). The extent of bound or unbound United Nations
security council by law. Journal of Legal, Ethical and Regulatory Issues, 24(S4), 1-7
Journal of Legal, Ethical and Regulatory Issues Volume 24, Special Issue 4, 2021
the most significant contributors of troops to the peace-keeping missions that the UN have
mandated to date, Germany and Japan are actually the second and third biggest funders of the
organisation itself which should surely see them given greater power within the auspices of the
UNSC as it stands (Grieger, 2013). Nevertheless, this was not the only proposal for reform with
the Italian government leading a movement including South Korea, Canada, Indonesia, Spain,
Pakistan, Mexico, Turkey, Colombia and Argentina to change the composition of the UNSC to
reflect the needs and interests of other less powerful countries based in the world today (Grieger,
2013). This movement looked to actively oppose any potential expansion of the number of
permanent member states of the UN through a group referred to as Uniting for Consensus
(Grieger, 2013). Then, with a view to effectively regulating the work of the organisation as a
whole, it was considered that there was a need to provide for the establishment of a new semi-
permanent ‘seat’ category with a broad variety of options from abolition to limitation of vetoes
application only to issues under Chapter VII of the UN Charter 1945 (Grieger, 2013). It is also to
be noted that, at the behest of the former UN Secretary-General Kofi Anan, a team of advisers
were specifically asked to formulate a series of recommendations for the UN’s reform by the
start of 2005 (Grieger, 2013). One of the most significant measures to have been proposed by
this team was to increase the UNSC’s permanent membership to ten with the additional five
including Brazil, India, Germany and Japan along with one country from Africa or the Middle
East (Fomerand, 2009).
However, in view of the original five permanent members of the UNSC each holding
their own individual right of veto, they announced their somewhat similar positions regarding the
potential for the reform of the Security Council going forward to benefit the interests of other
smaller countries (Bosco, 2009). By way of illustration, the US government served to give their
unequivocal support to Japan’s claim for permanent membership of the Council along with also
lending their support to India as well as an additional small number of non-permanent member
states (Bosco, 2009). Similarly, both France and the UK have ostensibly looked to support the
accession of Brazil, India, Germany and Japan to become permanent member states along with a
greater UNSC presence for African countries which China has also supported along with the
greater representation of developing countries whilst also still opposing the membership of
Japan.
CONCLUSION
To conclude, it would seem to be clear from the analysis to have been completed during
the course of this research that, as opposed to the idea that “The Security Council is unbound by
law”, the reality is that it is the law that applies (Alsharqawi et al., 2020) in this area that serves
to cause a lot of the problems in this area. This is because it is arguable that, for too long, the five
permanent member states of the UNSC have exploited the way in which the Council operates
within the confines of the law to support their own specific interests as opposed (Alsharqawi &
Younes, 2020) to those of the organisation as a whole along with those other countries that they
are meant to help. However, despite the problems to have been recognised in this regard, it is
arguable that any efforts at reform are going to prove to be somewhat complex to put into
practice. Such a view is founded upon the fact that it is the way in which the UNSC currently
operates that will serve to stop any significant reforms from being completed to aid the
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Citation Information: El-Refaie, A.M., Aldalbeeh, A., & Alsharqawi, A. (2021). The extent of bound or unbound United Nations
security council by law. Journal of Legal, Ethical and Regulatory Issues, 24(S4), 1-7
Journal of Legal, Ethical and Regulatory Issues Volume 24, Special Issue 4, 2021
functionality of the organisation and remove the apparent element of bias on the part of the
permanent member states in the context of the law as it has developed at the international level to
date.
ACKNOWLEDGMENT
The authors would like to thanks Applied Science Private University and Prince AL
Hussein Ben Abdullah 2 Academy for Civil Protection Al- Balqa Applied University for its
supports of this research.
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Citation Information: El-Refaie, A.M., Aldalbeeh, A., & Alsharqawi, A. (2021). The extent of bound or unbound United Nations
security council by law. Journal of Legal, Ethical and Regulatory Issues, 24(S4), 1-7
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