論文(Article)

The practices of the UN Security Council under Chapter VII of the UN Charter have indicated its changing character since 1990s and provoked a controversy on how and where the Security Council is in the international legal order. In addition, it has constantly been questioned what, if any, are the limits to the possible evolving mechanism embedded in the Security Council as one of the organs of an international organization. Traditionally, activities and functions of international organizations have been evaluated from the point of a dichotomy between the effectiveness and expansion of powers of international organizations, on the one hand, and state sovereignty of member states, on the other. This dichotomy, however, seems to show its limitation as an analytical framework in current international society. This article, at first, revisits the Lockerbie incident and reconfirms the issues posed there in order to seek a perspective so that we could re-evaluate the Security Council’s Chapter VII activities.

Then, this article moves forward into the general issue on the law of international organizations; the concept of "constitution" and the "constitutionalism" discourse. Particularly, the thesis suggested by Jan Klabbers ―"Constitutionalism Lite"― is focused on as a basic plan for our attempt to seek this perspective. In conclusion, this article tries to take a "constitutional approach" as its perspective based on the dichoto my between "functionalism" and "constitutionalism". Although this article will take a central position between both dichotomies, constitutionalism will receive more emphasis overall. One of the reasons for this approach is that constitutionalism as a domestic analogy cannot be fully applicable to the current international society. In spite of this presupposition, constitutionalism in international organizations will be largely suggestive when we reconsider the Chapter VII powers and its legal control mechanism, and furthermore, the position of the UN Security Council in the international legal order. In addition, it is important to analyze the various legal issues related to the Security Council systematically and comprehensively from the constitutional approach based on the distinction between a descriptive sense and a prescriptive one. This is the task hereafter.