Abstract: The paper first demonstrates that the members of the United Nations Security Council are under a legal duty, both under the Charter and under general principles of international law, to carry their Charter obligations in good faith. The paper then proceeds to identify a selected set of situations in which the Council might violate this legal obligation, namely when determining a "threat to the peace", when selecting measures to respond to such a threat and when deciding when the threat has ended. The paper then proceeds to review apparent violations by Council members of their duty of good faith and demonstrates that due to the inherent nature and composition of the Council, its good faith cannot be presumed. Due to this fact and to the lack of effective political and legal restraint, the situation may arise whereby the Council itself or its decisions would represent a threat to international peace and security. In order to prevent this from occurring a number of responses are suggested.
The Security Council’s Obligations of Good Faith
By Elias Davidsson
(originally published in Florida Journal of International Law, Vol..XV, No. 4 (Summer 2003), pp.541-573)
II. The relevance of good faith with regard to the ability of the Security Council to fulfil its mandate
III. How can the good faith of the U.N. Security Council be assessed ?
A. What could constitute a “threat to the peace? ?
1. The concept of “State of Necessity? in justification of countermeasures
2. Application of the concept of “Necessity? to the U.N. Security Council
B. Good faith and the choice of responses to a “threat to the peace?
C. Ending previously imposed coercive measures and good faith
IV. Evidence of U.N. Security Council breaches of good faith in determining (or failing to determine) threats to the peace
V. Can the U.N. Security Council be generally presumed to act in good faith?
A. Arguments for the presumption of good faith
1. A general presumption of good faith
2. States? general acquiescence to U.N. Security Council decisions
B. Arguments against the presumption of good faith
C. A pattern of mendacity, hypocrisy and recklessness
1. Politically motivated action and inaction
2. Securing votes by bribes and threats
3. Undermining the principles and purposes of the United Nations
IV. Concluding remarks
The primary responsibility of the U.N. Security Council, as stipulated in Article 24 of the U.N. Charter, is to ensure international peace and security. It does so, inter alia, by determining whether there exists any threat to the peace, breach of the peace or act of aggression and by deciding how to respond to such situations. Article 2 (2) of the U.N. Charter requires all member States, “in order to ensure to all of them the rights and benefits resulting from membership, [to] fulfil in good faith the obligations assumed by them in accordance with the present Charter.”[]
The obligation of good faith is a general principle of international law.[] According to Article 26 of the Vienna Convention on the Law of Treaties (Vienna Convention), ?[e]very treaty in force . . . must be performed by [its Parties] in good faith”.[] The U.N. Charter is a treaty. Its members must therefore fulfill their treaty obligations in good faith, including when acting within organs established by that treaty.
The principle of good faith has a long history and is related to the theory of abuse of rights (abus de droit). Cheng discusses in detail the nature of the theory of abuse of rights (breach of good faith) under the headings (A) The Malicious Exercise of a Right; (B) The Fictitious Exercise of a Right; (C) Interdependence of Rights and Obligation; and (D) Abuse of Discretion[]. A related area of municipal law is that of the abuse of discretionary rights, applicable mostly to executive, administrative and judicial bodies.
A public authority that repeatedly fails to act in good faith undermines its own legitimacy[]. David D. Caron writes: “Broadly speaking, a perception of illegitimacy might be said to affect the effectiveness of an institution in two ways: First, it might undercut the perceived legitimacy of the rules that emanate from the institution. Second, it might threaten the future effectiveness of the institution.[]. It is a known fact that political bodies, such as governments, are prone to abuse their discretionary powers. Government abuse can be contained through periodic elections and through constitutional courts or appeals mechanisms. No such mechanism exists with regard to the Security Council and its decisions. In Derek Bowett’s words: ?[T]he apparent expectation that the Council will function under the Rule of Law is not reinforced by the normal legal safeguards one would expect to find surrounding the exercise of executive powers in a democratic, constitutional system . . . Even more disturbing, the Council frequently fails to indicate the constitutional basis – i.e. the Charter provision – on which it acts.” [] This circumstance alone provides a compelling reason for subjecting the Council to the test of good faith. Caron reviews various issues regarding allegations of illegitimate Council decisions, including “circumstances that underpin two broad perceptions of illegitimacy regarding the collective authority of the Security Council? []. He refers to the perception of dominance of the Council by a few states and the perception of unfairness surrounding the veto. In the present article we present further grounds for questioning the legitimacy of the Security Council and its decisions.
II. The relevance of good faith with regard to the ability of the Council to fulfil its mandate
The breach of good faith by the Council or its members, by and in itself, does not give rise to international liability, neither that of the United Nations nor of those members states who may breach their duty of good faith. However, subjecting the decisions of the Security Council to the test of good faith may be relevant for states who are loath to pursue Council decisions they consider as ultra vires. Should wide segments of popular opinion around the world reach the conclusion that the Security Council, as presently composed, cannot be presumed to act in good faith, this conclusion could have significant, or even revolutionary, consequences.
III. How can the good faith of the Council be assessed?
The Security Council possesses a wide margin of discretion to determine when collective action for the maintenance of peace is necessary. Using the terminology introduced by Cheng, we say that the Council possesses certain rights, such as to characterize circumstances as threatening international peace and security, to select measures in response to such circumstances and to implement or order member states to implement such measures.
There are numerous occasions in which the Council might abuse such rights. First, abuse may arise when it determines the existence of a threat to the peace, breach of the peace, or act of aggression or fails to do so. Secondly, the selection and design of responses to the threat or breach of the peace may result in abuse. Thirdly, the Council may abuse its discretion when it reviews measures it already imposed.
The Security Council would thus not be acting in good faith if it were to fraudulently characterize a situation as a threat to international peace and security, which by any reasonable standard does not constitute such a threat. States wielding their veto power, or threatening to do so, would equally breach their obligations of good faith, if by such conduct they prevent the Council from responding effectively to serious threats to, or breaches of, the peace. When selecting responses to threats to, or breaches of, the peace, the Council would abuse its discretionary rights, were it to select measures unlikely to restore the peace, or fail to end such measures it has already adopted when it has become obvious that they are not effective to restore the peace.
The Security Council has often been rightly criticized for pursuing double standards. The preamble of the U.N. Charter includes, however, the pledge of U.N. members to "reaffirm faith . . . in the equal rights . . . of nations large and small".[] Article 2(1) of the U.N. Charter also places a duty upon both the United Nations (and its organs) and its members to act in accordance with the “principle of the sovereign equality of all its Members."[] This obligation extends to all purposes of the U.N. Charter (enumerated under Article 1), including action for the maintenance of international peace and security.[] Should the Council only respond to breaches committed by small or weak nations and fail to act when powerful nations commit similar or even more serious breaches, it would not fulfil its duty to act in good faith with respect to the principle of the sovereign equality of all U.N. members.
A. What Could Constitute a “Threat to the Peace”?
Under the provisions of the U.N. Charter, the Security Council is entitled to initiate collective enforcement measures when having determined either one of three situations: The threat to the peace, a breach of the peace, or an act of aggression. While the U.N. General Assembly adopted in 1974 a definition of “aggression”,[] its use is not binding on the Council. Moreover, the Council has “never made a determination that a given situation or use of force by any State constituted an act of aggression”.[] The Council, in order to retain the highest degree of discretion in responding to such acts, designates even blatant acts of aggression as “breaches of the peace”.[] In spite of distinguishing between aggression and a breach of the peace in its terminology, the Council has responded to various breaches of the peace in a similar manner as if they were acts of aggression, particularly by designating the guilty party.[]
Of interest here is the third elusive situation that may be invoked by the Council to trigger enforcement action ? threats to the peace. There exists no definition what this expression actually means. Most observers, including those who have identified legal limits to U.N. enforcement action, consider that the Council possesses unlimited discretion to determine what constitutes a threat to the peace.[] Few, if any, have questioned this unlimited discretion.[]
Indeed, a plain reading of the U.N. Charter provides little if any criteria to be used in gauging the existence of a threat to the peace. No provisions of the U.N. Charter place an explicit limit on what could conceivably constitute a threat to the peace. Theoretically, any situation, circumstance or act, by a single person or by a whole nation, could be determined as a threat to the peace. According to a textual reading of the U.N. Charter, the Council would be entitled to do nothing even in the face of the most blatant violation of a member state’s sovereignty or of its territorial integrity, as a threat to the peace; conversely, it would also be entitled to designate legitimate or even trivial conduct by states or individuals as such a threat to international peace and security.
1. The Concept of ‘State of Necessity" in Justification of Countermeasures
When carrying out its primary responsibility for the maintenance of international peace and security, the Council is acting in lieu of member States. States are entitled to use force against, or engage in unfriendly conduct towards, other states in cases of necessity. The plea of necessity must not be contrived. Cheng lists several rules that can be deduced from case law regarding the plea of necessity:
1. When the existence of a State is in peril, the necessity of self-preservation may be a good defence for certain acts which would otherwise be unlawful . . .
2. [T]he proprietary rights of others . . . may be disregarded in case of an irresistible and absolute necessity.
3. This necessity must be “absolute? in that the very existence of the State is in peril
4. This necessity must be “irresistible? in that all legitimate means of self-preservation have been exhausted and proved to be of no avail.
5. This necessity must be actual and not merely apprehended.[]
The judgement of the International Court of Justice (ICJ) regarding the Case Concerning the Gabc