7　国連憲章第7章に残された課題―――冷戦後の安全保障理事会の実行を中心として

抄録

It is planned to resume the discussion on the Security Council reform at the General Assembly this year. However, an important issue that has remained from the creation of the United Nations is not going to be among its agenda: the all-powerful authority of the Security Council under Chapter VII and the total absence of checking measure on its practice. This article focuses on the contradiction between the “rule of law” in the United Nations legal order and the “rule by law” based on the accumulated practices by the Security Council in the Post-Cold War era.

One of the serious problems is the violation of Article 2(4) of the UN Charter the practices of the authorization on the use of force under Chapter VII poses. Chapter VII is the institution in which the Security Council makes authoritative decision on both legality and legitimacy of the use of force. However, through the accumulation of the practices, certain states have come to consider Chapter VII as mere formal requisite. Such fact can be regarded as the “rule by law”, in which only a limited group of states can justify the armed intervention with the authorization from the Security Council.

The other problem is the discrepancy between the enforcement measures and the development within the United Nations legal order. In recent years, the United Nations developed deeper concerns with international human rights law and humanitarian law. Under such circumstances, the comprehensive embargo on Iraq or the measures for anti-terrorism are criticized as the violation of fundamental human rights of the innocent civilians. This means the practices of such enforcement measures are regarded as the “rule by law”, in which the Security Council executes enforcement of law for the security at the cost of the fundamental human rights.

The shared issue in these “rule by law” is the lack of the review system on the authority of the Security Council under the Chapter VII. Therefore, it is to construct an alternative system to the centralized system, to balance the authority of the Security Council.