Under international law, every international organization, unlike a state, has a limited international personality with an inherent restriction attached. In other words, international organizations are authorized to operate only to the extent explicitly stipulated by a constitutional instrument, which is a distinctive feature of international organizations in contrast to those of states. If an organization attempts to carry out an act beyond the limits authorized in the constitutional document, then it would constitute an ultra vires activity, which is null and void ab initio. In fact, this is a logical and unavoidable conclusion because the power of an international organization comes solely from the mandates of each member state that participates in the international organization; therefore, as a corollary, an organization cannot exercise authority that has not been delegated in the first place. Meanwhile, no state can delegate powers that the state did not originally possess. In other words, only the power that is within the proper limits of each state can be reassigned to an international organization, and the organization constituted as such, in turn, has international personality only within the delegated limits. An international organization is created through the “collective accumulation” of individual authorities from individual members; therefore, the power or authority of an international organization could sometimes be greater than that of a member state. However, the fundamental principle remains the same: the organization does not possess in the first place the authority that each member does not possess, because it cannot and has not been delegated.
The United Nations is an international organization established by treaty: the Charter. Therefore, its power as an organization derives solely from the Charter, as delegated by each Member State. As far as the Security Council is concerned, however important the role may be, it remains simply a sub-organization of the United Nations and, as a sub-organization, its authority cannot exceed general authority. Therefore, the Security Council is also subject to the same limitations that apply to the United Nations. The Security Council is also bound by the Charter. Therefore, it is logically evident that there is from the beginning a limitation in the actions of the Security Council.
As such, there is no logical reason not to apply the theory of ultra vires in the context of the Security Council operation. Therefore, it must be remembered, as a starting point, that whenever the Security Council exercises its power, it is valid only when it is done within the limits of the provisions of the Charter. Similarly, another inevitable result is that the Security Council does not possess the power that individual states did not originally possess. In other words, unlike the tantalizing arguments to the contrary, there is in fact a limitation on the actions of the Security Council under the Charter; Consequently, any resolution adopted in violation of the Charter must be considered null and void as an ultra vires action, at least theoretically speaking.
It is true, as the opponents of this theory vigorously argue, that although such adoption is null and void, there is no entity in today’s international society that can officially pronounce such nullity of the actions of the Security Council or sanction the Security Council. for that matter. However, when a social norm is considered law, the lack (or weakness) of an enforcement mechanism or declaratory entities does not necessarily stimulate the conclusion that the norm is not law at all. Its coercive nature is indeed an important factor of law, but it is not always a device. As such, the fact that no entity of the international community can issue an enforceable judgment before the Security Council does not lead to the conclusion that the body is immune to international law in general and ultra vires doctrine in particular.
