Commentary: Judith A. Miller

• Author: Judith A. Miller
• Pages: 107

Sn several instances during this colloquium scholars have alluded to UN Security Council Resolutions as having the impact 'as law.' I'm not sure that I would be willing to accord the Security Council such overarching authority. I certainly agree that the member States of the United Nations, in Article 24 of the Charter, conferred on the Security Council the primary responsibility for the maintenance of international peace and security, and agreed that the Security Council, in carrying out its responsibility, acts on their behalf. Furthermore, member States agreed, in Article 25, to accept and carry out the decisions of the Security Council in accordance with the Charter. In Chapter VI of the Charter the member States conferred on the Security Council the authority and responsibility to inquire into disputes which may endanger international peace and security, and to investigate those disputes and recommend measures with a view towards pacific settlement. Member States also conferred on the Security Council in Chapter VII the responsibility to determine the existence of a breach of the peace or act of aggression, make recommendations, and decide what measures shall be taken pursuant to Articles 41 and 42 of the Charter, which we all know involve non-forcible and forcible measures to maintain or restore international peace and security.

The international security paradigm established by the Charter, in my view, is an international mutual security agreement, in which sovereign States members of the UN have by mutual agreement conferred on the UN Security Council certain responsibilities for the maintenance and restoration of international peace and security, and have agreed to abide by the decisions of the Security Council in this respect. I do not read the Charter, however, as conferring law-making authority on the UN Security Council. In my view, neither the UN Security Council nor the UN General Assembly commands the authority or the responsibility to establish rules of law applicable to the international community or to any particular State. The Security Council, of course, may by its decisions reinforce applicable principles of international law, and may even advance developing principles of international law.

Each dispute or threat to international peace and security addressed by the Security Council is unique, having its own factual basis. UN Security Council decisions in respect to those factual situations must of necessity be tailored to the factual situation at hand. Because of this, and because decisions of the Security Council often do not reach out and touch all members of the international community, the resolutions of the Security Council do not and should not establish principles of international law applicable to all members of the international community. I think it is a stretch, and a dangerous one at that, to read into the UN Charter authority and...