Aggression and duties of the Security Council. Is the council bound to determine the existence of an act of aggression?

Abstract

This article explores the question of whether the Security Council (SC) is bound to determine the existence of an act of aggression and to take Chapter VII measures to restore international peace and security. To this end, the analysis begins with the interpretation of art. 39 of the Charter and its particularities regarding aggression, reviewing its traditional interpretation with regard to the SC’s discretion in the determination. It analyses the limits to that discretion under the Charter and then goes on to argue why aggression could be considered an exception to discretion. It also analyzes the rules that can be considered as sources of positive duties of the SC in matter of aggression, specifically Art. 24 of the Charter, the Purposes and Principles of the United Nations and the peremptory norm (jus cogens) of the prohibition of aggression, to conclude with a brief study of the practice of the UN with respect to aggression. The harmonious interpretation of the rules at stake makes it possible to give an affirmative answer to the question posed.