At present, the General Assembly (GA) has a total of 192 members, comprising virtually all states (except Vatican - the independence of Taiwan and Kosovo is under question). So, the "initial forum" of adoption did not have a higher degree of representativity/legitimacy, but rather a much lower one. Indeed, the "initial forum" must not be considered a sort of "constituent assembly" that could adopt a constitution-type of charter that only itself (due to its much higher degree of representativity than the subsequent GA) could have amended. Rather, the opposite is true, since the General Assembly has modified the Charter a number times. Indeed, never has the world had a more legitimate body than todays General Assembly.
So, there are only two options, either the initial forum had legislative powers or it had not.
2. One the other hand, lets assume that the initial forum had no legislative powers. Now,the problem is that in order for the Security Council (or any structure for that matter) to get legislative powers, it means that the structure that gave it such power, must have had this power for itself in the first place (nemo potest facere per alium, quod per se non potest). If the initial forum had no such power, than no such power can be conferred upon the Security Council or any other structure. Useless to say that, since there was no world popular vote to give such powers to the Security Council, the only possible source of transfer is the initial forum. So, in this case, neither body (GA or Security Council) has any sort of legislative powers.
In any event, arguing that, in the same time, the General Assembly is granted no
legislative powers but rather a consultative statute and the Security Council retains legislative powers, finds, in my mind, no logical or legal support.
Any state in which a small group dealing with security issues claims to retain all
legislative powers, with good reason, would be qualified as military junta/dictatorship/totalitarian etc. Same goes for the United Nations that cannot claim to elude or modify long-established principles of democracy. Indeed the United Nations cannot, should not and must not be allowed to follow "lower" standards of democracy and transparency than its member states. Now, the really "interesting" part is (clean-hands standard?) when the UN has what appears to be an antidemocratic Security Council waging war against totalitarian states to defend democracy . . .
To conclude, either both bodies (GA and Security Council) have legislative powers, either both of them do not or only the GA has legislative powers. The Security Council alone can never ever have legislative powers. Not unless there is a general vote of the world population in this sense or the Security Council hi-jacks such powers in a dictatorial manner (second one seems closer to the current state of things).
So, there are only two options, either the initial forum had legislative powers or it had not.
1. Assuming that it had, than one of the three options must be true:
a) it has retained all legislative powers for the GA and gave nothing to the Security Council;
b) it has split the legislative powers between the GA and the Security Council;
c) it gave all of that power to the Security Council leaving nothing for the GA.
1.a) This raises no major issues, but only the additional proposition (not without merit) that the wording of article 24 of the UN Charter supports no idea of any sort of legislative transfer from the GA/initial forum to the Security Council.
1.b) Should the initial forum have chosen to delegate some powers to the GA and some to the Security Council, than the questions are which powers and how much of those
particular powers were transferred. Put in more concrete terms, has the Security Council be given powers only related to its scope ("peace-keeping") and does it have to regularly report to the GA which must validate the temporary executive decisions it has taken? The answer must be yes in both instances. Conferring powers others than those related to the Security Council's mandate is invalid, and any such attempt (without prior modification/enlargement of the mandate of the Security Council) is reduced to the transfer that can legally operate (only within the mandate). Since there is no evidence of delegation to other bodies in other fields, the GA retains its legislative powers in all matters not related to "peace-keeping".
a) it has retained all legislative powers for the GA and gave nothing to the Security Council;
b) it has split the legislative powers between the GA and the Security Council;
c) it gave all of that power to the Security Council leaving nothing for the GA.
1.a) This raises no major issues, but only the additional proposition (not without merit) that the wording of article 24 of the UN Charter supports no idea of any sort of legislative transfer from the GA/initial forum to the Security Council.
1.b) Should the initial forum have chosen to delegate some powers to the GA and some to the Security Council, than the questions are which powers and how much of those
particular powers were transferred. Put in more concrete terms, has the Security Council be given powers only related to its scope ("peace-keeping") and does it have to regularly report to the GA which must validate the temporary executive decisions it has taken? The answer must be yes in both instances. Conferring powers others than those related to the Security Council's mandate is invalid, and any such attempt (without prior modification/enlargement of the mandate of the Security Council) is reduced to the transfer that can legally operate (only within the mandate). Since there is no evidence of delegation to other bodies in other fields, the GA retains its legislative powers in all matters not related to "peace-keeping".
As for the second issue, the formulation that the Security Council is conferred "primary responsibility", and that it "acts on behalf of states" as well as the fact that it must report annually to the GA make this assertion true. De lege ferenda, this control must be brought to meet democratic standards and all resolutions adopted by the Security Council must be confirmed by the GA, just like the Governmental decrees are confirmed by national parliaments.
1.c) As shown above, the initial forum could not have given all of the legislative power to the Security council leaving the GA with no powers at all. It could not have transferred all of the legislative powers in all fields, and not even the "entire" legislative powers in the field of "peace-keeping".
In all situations presented above, the current GA may very well reverse or limit these decisions at any time. The GA has modified the Charter a few times until now and it certainly has a much higher authority to regulate these issues than the initial forum (see above).
1.c) As shown above, the initial forum could not have given all of the legislative power to the Security council leaving the GA with no powers at all. It could not have transferred all of the legislative powers in all fields, and not even the "entire" legislative powers in the field of "peace-keeping".
In all situations presented above, the current GA may very well reverse or limit these decisions at any time. The GA has modified the Charter a few times until now and it certainly has a much higher authority to regulate these issues than the initial forum (see above).
2. One the other hand, lets assume that the initial forum had no legislative powers. Now,the problem is that in order for the Security Council (or any structure for that matter) to get legislative powers, it means that the structure that gave it such power, must have had this power for itself in the first place (nemo potest facere per alium, quod per se non potest). If the initial forum had no such power, than no such power can be conferred upon the Security Council or any other structure. Useless to say that, since there was no world popular vote to give such powers to the Security Council, the only possible source of transfer is the initial forum. So, in this case, neither body (GA or Security Council) has any sort of legislative powers.
In any event, arguing that, in the same time, the General Assembly is granted no
legislative powers but rather a consultative statute and the Security Council retains legislative powers, finds, in my mind, no logical or legal support.
Any state in which a small group dealing with security issues claims to retain all
legislative powers, with good reason, would be qualified as military junta/dictatorship/totalitarian etc. Same goes for the United Nations that cannot claim to elude or modify long-established principles of democracy. Indeed the United Nations cannot, should not and must not be allowed to follow "lower" standards of democracy and transparency than its member states. Now, the really "interesting" part is (clean-hands standard?) when the UN has what appears to be an antidemocratic Security Council waging war against totalitarian states to defend democracy . . .
To conclude, either both bodies (GA and Security Council) have legislative powers, either both of them do not or only the GA has legislative powers. The Security Council alone can never ever have legislative powers. Not unless there is a general vote of the world population in this sense or the Security Council hi-jacks such powers in a dictatorial manner (second one seems closer to the current state of things).
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