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Elena Ganyushkina

Summing Up 70 Years of the United Nations: Differences on Whether the UN Security Council Has Legislative Powers

2016. Vol. 11. No. 3. P. 169–190 [issue contents]
For 70 years the United Nations has not fully clarified what kind of decision constitutes a resolution made by its Security Council (UNSC) under Chapter VII of the UN Charter. When is a resolution legitimate and when does it extend beyond the UNSC’s mandate? Can a resolution be mandatory as well as supplementary, or can it change the norms of international law, which operate outside the UN. The vast majority of resolutions are intended to solve a specific situation that threatens international peace and security. Russian and foreign scholars refer to the same documents and decisions of international judicial bodies, but interpret them differently. In this article the author analyzes arguments about the existence of the UNSC’s legislative powers, using a comparative analysis formulated for this purpose. Obligations arising from article 25 of the Charter apply only to UNSC decisions adopted for implementing or controlling existing norms of international law and not newly formulated norms. Article 103 is intended for obligations under the UNCharter, and not for acts made pursuant to basic documents. The Charter does not allow the UNSC to make decisions that require acts and at the same time add or modify international law. The UNSC can create subsidiary bodies that extend the scope of discussions related to threats to peace and security, but cannot change the limits of the use of enforcement measures under articles 41 and 42. The Counter-Terrorism Committee, created by Resolution 1373 (2001), supports UN members’ sovereign efforts to prevent terrorism and the 1540 Committee helps members prevent the trafficking of nuclear material and the use of nuclear, chemical or biological weapons. There is no evidence of any customary rule of international law based on UNSC decisions. The author refutes the claim that Resolutions 1373 (2001) and 1540 (2004) support the universal agreement associated with the Counter-Terrorism Committee or the 1540 Committee. The only undisputed basis for the UNSC making normative decisions is article 43, which grants the power to make international treaties. However, in practice the UNSC does not use this provision.The author concludes that the best way to clarify the UNSC’s true legal position, limits and the basis of its activities under Chapter VII to determine the principles and criteria that guide its authority, which allow it to grant permission for the use of force, is to hold a special session of the UN General Assembly.
Citation: Ganyushkina E. (2016) Summing Up 70 Years of the United Nations: Differences on Whether the UN Security Council Has Legislative Powers. International Organisations Research Journal, vol. 11, no 3, pp. 169-190 (in Russian). DOI: 10.17323/1996-7845-2016-03-169.
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