CYIL vol. 14 (2023)

PETRA RUFFER LUSTIGOVÁ

CYIL 14 (2023)

1. Introduction Is the UN Security bound by international law? The obvious answer that comes to our mind is: Why shouldn’t it! It is hard to imagine that a world government should not be obliged to respect the rules, especially if it has been vested with such an important and immense responsibility to ensure peace and security on this planet. Without presuming the conclusion, it is fair to say that even the most erudite scholars of international law seem to be divided on this issue. “ Admittedly, some international law scholars have consistently maintained that when it comes to issues of peace and security, the Council is not bound by international law ”, 1 while others argue that “ one cannot conclude that the findings of the Council under Chapter VII and the determination of an appropriate response can be entirely without limits ”. 2 The issue of the UN Security Council acting possibly without any restrictions becomes especially sensitive when taking into account that decisions of the Council are, by virtue of Article 25 of the Charter, binding upon the entire international community. Contrary to the resolutions of the UN General Assembly which are, even if adopted unanimously or by consensus, only recommendatory in nature and do not alter the legal rights and duties of States. 3 Granting the Security Council such a wide authority was recognized by the drafters of the Charter as an indispensable condition of collective security system, because otherwise the maintenance of international peace and security could not be effectively ensured. Yet, “ [w]hile the Security Council may impose obligations upon states that contravene other obligations of these states, and while the Charter has given substantial latitude to the Council for the performance of its functions, it is not above the law ”. 4 Regardless of the opinions of some scholars, reality regrettably shows that “ [t]he Security Council has ignored Charter rules and principles; it has acted in some cases as though it were not itself subject to rules ”. 5 The purpose of this article is not to judge the opponents’ counter arguments; rather it aims to set forth a general account of observations of the possible legal limits to the Security Council’s action stemming from the UN Charter and the corpus of international law. In order to be able to respond to the question in the article’s title, firstly a brief account on the nature, powers, and the position of the Security Council in the UN system will be recalled, and a short review aiming to define the scope of international law applicable will be presented, including the unique status of the UN Charter as a norm of superior status in the hierarchy of sources of international law. Secondly, against the background of this rather theoretical introduction, an examination of the presumed legal limits to the Council’s action stemming, either from the UN Charter and its rules of procedures, or from the corpus of 1 O’CONNELL, M. E. The Security Council and the Use of Force, in: BLOKKER, N. & SCHRIJVER, N. The Security Council and the Use of Force: Theory and Reality – A Need for Change? (Martinus Nijhoff Publishers, 2005), p. 56. 2 GOWLLAND-DEBBAS, V. Security Council Enforcement Action and Issues of State Responsibility, 43 ICLQ , January 1994, p. 90. 3 CORTEN, O. The Law against War (Hart Publishing, 2010), p. 331, n. 141. 4 BLOKKER, N. The Security Council and the Use of Force – On Recent Practice, in: Blokker & Schrijver, supra note 1, p. 11. 5 O’Connell, supra note 1 , p. 56.

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