CYIL vol. 14 (2023)

CYIL 14 (2023) THE UNTOUCHABLE: IS THE UN SECURITY COUNCIL BOUND BY INTERNATIONAL LAW? Needless to add that the Security Council is absolutely free to decide whether a situation represents, or not, a threat to international peace and security. The Security Council is neither under any legal obligation to decide whether a given situation falls within the terms of Article 39 (there is no “ legal duty to make such determinations ”), 73 nor is the Council obliged to proceed to any enforcement action after making such a determination. Nevertheless, the Security Council must determine that a threat to the peace, breach of the peace, or act of aggression occurred before it can take enforcement action under relevant provisions of the Chapter VII. 74 “ Although, the Council rarely invokes specific articles of the Charter, including Article 39, in its decision or recommendations, it has always based enforcement measures of the terms of that provision. Without [such] a determination … the Council cannot take enforcement measures under Chapter VII of the Charter ”. 75 Being so broad, final, and non-reviewable, the discretionary power under Article 39 is dangerously tempting to be misused, since its language could refer “ virtually anything, depending on how one defines ’peace and security’ ” 76 As Professor Dupuy reminds us, [i]n recent practice, the striking fact is that the Security Council did not deem it necessary to demonstrate or justify the effective existence of a threat to the international peace including in some situations in which it was not necessarily self-evident that such a threat did exist at the international scale and he recalls the situation in Somalia. 77 A further example is the case of a terrorist attack on the Pan Am Flight 103 over the Scottish town of Lockerbie in December 1988 when the Security Council made a determination under Article 39 in Resolution 748 (1992) 78 claiming that “ the failure by the Libyan Government to demonstrate by concrete actions its renunciation of terrorism and in particular its continued failure to respond fully and effectively to the requests in resolution 731 (1992) constitutes a threat to international peace and security ”. 79 According to Professor Dupuy, Resolution 748 “ does not demonstrate in which respect the alleged conduct of Libya in the Lockerbie context creates a real threat to international peace ,” 80 73 Gill, supra note 65 , p. 40. 74 “While a determination of the SC is a prerequisite for a decision of further measures under Chapter VII, this is not to say that the determination in a Resolution must also be made with express reference to Art. 39. In the early practice this Article or even Chapter VII were expressly mentioned only in a few resolutions of the SC in which determinations were made which might possibly fall within the scope of application of Art. 39.” (examples follow). FROWEIN, J., On Article 39 in: Simma, supra note 7 , p. 613, MN 26. 75 Gill, supra note 71 , p. 39. 76 Lobel & Ratner, supra note 69 , p. 126 (specifically referring to UN Security Council resolution 678). 77 Such was, in particular, the case with regard to the situation prevailing in Somalia in December 1994, when Security Counci Resolution 794 (UN Doc. SC/RES/794 (1992) of 3 December 1992) was adopted. The humanitarian crisis left no doubt. But its cross-border effects were not discernible at least at first view. Dupuy, supra note 40 , p. 26. 78 UN Doc. SC/RES/748 of 31 March 1992. By this resolution, the Security Council imposed universal mandatory commercial and diplomatic sanctions against Libya for not complying with previous Resolution 731. 79 UN Doc. SC/RES/748 of 31 March 1992, preamble. See also , AUST, A. Lockerbie: The Other Case, 49 ICLQ, April 2000, p. 278. 80 Dupuy, supra note 40 , p. 26. Also , “[S]erious doubts may arise over the part of the resolution [748] which considered the failure to extradite Libyan citizens as a threat to the peace, … It is questionable whether the failure to extradite two criminals may, according to general opinion, be considered a threat to the peace. … a State which detains a person presumed responsible for acts of terrorism is free to choose between extradition to other States for punishment or to prosecution and trial before its own judicial authorities (the aut dedere aut judicare principle)” – Conforti, supra note 60 , p. 179.

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