What is the key question/problem to be addressed by the dissertation?

How does the Security Council determine a position as a threat, or breach of

the peace, or act of aggression?

Why is this an interesting and/or important question to address?

The mere determining of an act as a threat to international peace and security

or an act of aggression paves the way for Chapter VII of the UN Charter.
Indeed, promulgating resolution under VII will grants the Security Council the
right to use of force under the defendant state and; hence, the right of the
defendant state in territorial integrity and political independence as enshrined
under Article 2 (4) will be derogated1.

Thus, it is necessary to consider the rationale the Security Council follows

when determining a situation. This necessity was highlighted in a specific
legal argument that introduced by Judge Shahabuddeen in Lockerbie case 2.
In a separate opinion, the judge stated that as the rules of Security Council
derogates the legal rights of states, it is of legal necessity to identify whether
there is any limitation upon the Security Council powers to characterise a
situation as one vindicating the promulgating of decision importing such
consequences.

What are the main answers that have been (or could be) given to this
question/problem?

According to the official site of the Security Council, Article 39 of the UN

Charter indicates that Security Council shall identify whether a situation does
or does not constitute a threat to peace, beach of peace or an act of
regression.

Regarding acts that constitute threats to international peace and security, the
situation might arouse from inside state, or among states and these situations

1
Article 2 (4) of the UN Charter states that ‘All Members shall refrain in their international relations from
the threat or use of force against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the Purpose of the United Nations’.
2
Lockerbie Case (Questions of Interpretation and Application of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) (Request for the
Indication of provisional Measures) [ 94 ILR 478] p.498
have “a regional or sub-regional repercussion” 3. Moreover, the Security
Council determines that “potential or generic threats” constitute threats to
international peace and security4.

However, this study will argue that there is lack of clarity regarding identifying
the point at which a specific act has a regional or sub-regional repercussion.
Furthermore, this study will argue that the list of potential or generic threats is
neither immaculate nor exhaustive. As such, it includes; inter alia, terrorist
activities, the terrorist acts, the proliferation of weapons of mass destruction
as well as the proliferation of light weapons 5. This allows Security Council to
have the absolute power to determine the potentiality of an act to be a threat
without the ability of the defendant state to question its discretion.

Regarding a situation that breaches or gives rising to breach of the peace, the
Security Council referred that this case arouses in “the use of armed force”.
Nevertheless, this study will argue that there is lack of clarity regarding the
definition of acts that constitute threat to peace 6.

Regarding the act of regression7, there are very few cases; the Security
Council considered committing this act by a state against another state.

Are there any ethical issues raised by this question/problem?

No, this topic is legal topic and the data will be collected from journals and
books.

What assumptions and stipulations will you make when constructing

your arguments?
3
United Nation Security Council: available on: http://www.un.org/en/sc/about/faq.shtml accessed on 29
Feb. 2016
4
ibid
5
ibid
6
the Security Council (54)1948 resolution about Middle East War was promulgated because the acts
constitutes a threat to peace. See Malcolm N Shaw, International Law (6th edn, Cambridge University
Press, New York 2008) 1237
7
Article 1 of the General Assembly Resolution 3314 (XXIX) defines the act of regression as “use of
armed forces by a state against sovereignty, territorial integrity, or political independence of another
state, or in any other manner inconsistent with the United Nation Charter”
 - I will assume that national interest of states derogate the legal rules. That
is to say, the political exigencies determine the nature of a situation
rather than the legal rationale.
- I will consider the Westphalian orientation which considers states as
equal sovereign entities and those international persons are committing
to non-intervention principle.

Scope of the dissertation

1- This dissertation considers the legal issues regarding the ways in which
Security Council determine a situation rather than examining reforming
Security Council.

2- Analysing Articles 1(1), 2(7), 24, 25, 39 and 103 of the UN Charter

3- Examining various resolutions that have been promulgated by Security

Council about acts that represent threats or breaches to international peace
and security or acts of aggression such as the Security Council resolution 751
(1992), Security Council resolution 788 (1992), and the Security Council
resolution 1070 (1996).

Research Methods

This study will depend on primary data resources such as the UN Charter,
Security Council Resolutions, and the decisions of General Assembly,
International Court of Justice. Moreover, it will depend on various primary
resources of international law as enshrined in Article 38 of the statute of
international court of justice. Furthermore, this study will consider secondary
resources such as books and journals published in well-known journals.

Discussion and Analysis

This study will follow an argumentative logic analysis when examining the
development in the rationale of the Security Council when determining
specific action. As such, this study will consider resolutions of Security Council
before and after the cessation of the cold war. Furthermore, it will compare
and contrast amongst resolutions about actions that have occurred after cold
war.

Outline of the proposed structure of the dissertation

1. Introduction
2. Chapter Two

This chapter will briefly introduce different organs in the UN and then expand
in explaining the role and structure of Security Council and how it works and
promulgates its resolutions. After that, this dissertation will consider a number
of resolutions about actions, which endanger international peace and security.

2.1. A review about the UN System

2.2. The Security Council
2.3. Composition and working methods
2.4. Analysing the role of the SC
2.5. The measures regarding Chapter VII
2.5.1 Use the force measures
2.5.2 Measures without use of force.

3. Chapter Three
3.1. Determination of specific situation

This chapter will highlight various resolutions provided by the Security Council
when determining the legality of an act perpetrated by certain state actors or
non-state actors. These decisions include; inter alia, the Security Council
(54)1948 resolution about Middle East War, resolution (1368) 2001 and
resolution 1373 (2001) regarding terrorist activities after 11 September 2001,
and resolution 1540 (2004) regarding nuclear activities.

3.2. The relationship between Security Council and International

Court of Justice
- Herzegovina v. Yugoslavia Case
 - Lockerbie Case

Conclusion

Literature Review

Article 24 of the United Nation Charter endows the Security Council a primary
responsibility to maintain international peace and security. Furthermore, the
decisions of Security Council bind all member states as enshrined by Article
25 of the UN Charter. Moreover, Article 39 of the UN grants the Security
Council the right to examine a situation and determine whether, or not, this
situation represents a threat or breach to international peace and security or
an act of aggression. As such, the Council judges whether a situation is or is
not in compatible with Article 1(1) of the UN Charter 8. However, it is worth
noting that the Security Council is not permitted to interfere with issues which
are “essentially within the domestic jurisdiction of any state” as mentioned in
Article 2(7) of the UN Charter.

Accordingly, it is necessary to characteristically examine when an act is

considered within the domestic jurisdiction and; accordingly, beyond the
responsibility of the Security Council.

Indeed, the legal importance of this study increases within the facts that since
the end of cold war, it can be noticed, in a number of decisions, the rapidly
increasing range of activity by the Security Council in determining whether an
act represents a threat or breach to international peace and security or an act
of aggression.

For example, regarding Somalia, the Security Council resolution 751 (1992)
considered that “obstacles being created to the distribution of humanitarian

8
Article 1(1) of the UN Charter states that “The Purposes of the United Nations are: To maintain
international peace and security, and to that end: to take effective collective measures for the prevention
and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of
the peace, and to bring about by peaceful means, and in conformity with the principles of justice and
international law, adjustment or settlement of international disputes or situations which might lead to a
breach of the peace”.
assistance” constitute a threat to international peace. Also, in Liberia, the
Security Council resolution 788 (1992) indicated that the deteriorating
situation in the “civil war” is regarded as a threat to international peace and
security. In addition, regarding the Security Council resolution 1070 (1996),
the council went a further step when considering the acts of “international
terrorism” as acts that endanger international peace and security. Regarding
the matter of terrorism, the Security Council considers the failure of Sudan in
extraditing suspects, who attempted to assassinate Egyptian president
Muhammad Hosni Mubarak, to Ethiopia as a threat to international peace and
security.

In the face of the extended interpretation of the Council for what considers, or
not considers, a threat to international peace, in Lockerbie Case, Libya
envisaged the compatibility of the Security Council resolutions with the roles
of international law. In details, Libya considered that the Council resolution
748 (1992) contradicts with the norms of international law which mentioned in
the 1971 Montreal Convention9. However, the ICJ asserted that, according to
Article 103 of the UN Charter, the 748 (1992) derogates the 1971 Montreal
Convention10. Hence, Libya should apply the 748 (1992) resolution as duly
mentioned in Article 25 of the UN Charter.

Timetable

TASK TIME
Chapter 1 and March/2016
Feedback on Chapter 1
Chapter 2 Feedback on April/2016
Chapter 2
Introduction and May/2016
Summary

9
The 1971 Montreal Convention gives a state the right to aut dedere aut judicare. See, 1971
Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, data of adoption 23
September 1971, entered into force 26 January 1973. 974 UNTS 177 / [1973] ATS 24 / 10 ILM 1151.
See also, Michael Plachta, “The Lockerbie Case: the Rule of Security Council in Enforcing the Principle
aut dedere aut judicare” 2001 12 (1) EJIL 125-140
10
Article 103 of the UN Charter states that “In the event of a conflict between the obligations of the
Members of the United Nations under the present Charter and their obligations under any other
international agreement, their obligations under the present Charter shall prevail”.
And Feed Introduction
and Summary
Feedback on the whole June/2016
dissertation

List of resolutions and treaties

UNSC Res 54 (7 July 1948) UN Doc S/RES/54

The 1971 Montreal Convention gives a state the right to aut dedere aut
judicare. See, 1971 Convention for the Suppression of Unlawful Acts Against
the Safety of Civil Aviation, data of adoption 23 September 1971, entered into
force 26 January 1973. 974 UNTS 177 / [1973] ATS 24 / 10 ILM 1151.

1974 Consensus Definition of Aggression (UNGA) Resolution 3314 (XXIX)

UNSC Res 751(24 April 1992) UN Doc S/RES/751

UNSC Res 1368 (12 September 2001) UN Doc S/RES/1368

UNSC Res 1373 (28 September 2001) UN Doc S/RES/1373

List of Cases
Lockerbie Case (Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan
Arab Jamahiriya v. United Kingdom) (Request for the Indication of provisional
Measures) [94 ILR 478] p.498

Application of the Convention on the Prevention and Punishment of the Crime

of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ
Reports,1993, 95 ILR

Bibliography

Shaw M, International Law (6th edn, Cambridge University Press, New York
2008)

Plachta M, ‘The Lockerbie Case: the Rule of Security Council in Enforcing the
Principle aut dedere aut judicare’ 2001 12 (1) EJIL