The Constitutionalization of the UN Security System

The considerable activism displayed by the Security Council over the last years and its dynamic application of the powers under Chapter VII of the UN Charter recently have inspired concern for the institutional balance within the United Nations and the quest for justiciable restraints upon the Council. Such concern underlines a constitutional approach to the United Nations framework: the Charter is conceived as a kind of constitution for the community of states with the International Court of Justice as the ultimate guardian of its legality vis-a-vis the Council. Such a constitutional approach should be viewed with caution. The scrutiny of mandatory Council resolutions by the International Court of Justice must be confined to legal defects that release Member States from compliance; that is, to defects that render the resolution null and void. Such a qualification by the Court, always declaratory in character, is justified only when the Council has manifestly exceeded its powers under the Charter or violated peremptory norms of public international law