CYIL vol. 14 (2023)

CYIL 14 (2023) THE UNTOUCHABLE: IS THE UN SECURITY COUNCIL BOUND BY INTERNATIONAL LAW? international law, will be revised in a detail. Thirdly, we shall address the possible remedies UN Member States might have should there be an unlawful decision of the Security Council adopted and which is binding upon them. The final section is consecrated to a polemic on whether the authority of the Security Council is not occasionally being misused to promote national interests of one or more permanent members, instead of a common wellbeing. 2.1 On legal personality The Security Council, as a principal organ of the United Nations, is subsumed under the legal personality of the United Nations. The UN, in its capacity as an international organization, is undisputedly a subject of international law, and therefore has legal personality. “ The attribution of international legal personality simply means that the entity upon which it is conferred is a subject of international law and that it is capable of possessing international rights and duties ”. 6 For an international organization to assume legal responsibilities and obligations on the international plane, it is indispensable to dispose of organs capable of exercising such legal capacity. In this sense, it is the Security Council acting on behalf of the Organization – to these ends the member states conferred upon the Security Council the responsibility to ensure prompt and effective action when international peace and security are endangered, and to “ act on their behalf ”; 7 however, the actions and decisions of the Council are attributed to the UN Organization as a whole. Concerning the legal personality of the UN, Professor Ress goes even further in his opinion that “ [t]he UN differs from all other international organizations because of the so-called objective international (legal) personality ”, 8 this he justifies by the fact that the Charter’s status as a constitution for the world community , as well as by a large measure of international capacity reflected by “ its comprehensive scope of duties, especially the maintenance of international peace and security ”. 9 2.2 On the responsibility for maintenance of international peace and security The United Nations’ primary goal is to maintain and restore international peace through a system of collective security. Its principal organs help the Organization to achieve this goal. The most prominent of them is the Security Council, upon which the Member tates conferred “ the primary responsibility for the maintenance of international peace and security ”, 10 2. On the Nature and Powers of the UN Security Council 6 HARRIS, D.J. Cases and Materials on International Law (Sweet & Maxwell Ltd., 6 th ed., 2004), p. 138 (reference to Sands and Klein (eds.), Bowett’s Law of International Institutions (5 th ed., 2001), pp. 470–473). 7 Article 24(1) of the UN Charter. This is, however, perhaps unintentional inaccuracy in the wording of Article 24, because “[a]s an organ of the UN, the SC acts on behalf of the Organization and not on behalf of the individual member states”. DELBRÜCK, J. On Article 24, in: SIMMA, B. (ed.), The Charter of the United Nations: A Commentary (Oxford University Press, 1995), p. 404, MN 12. See also , KELSEN, H. The Law of the United Nations (Stevens & Sons Ltd., 1950), p. 280. 8 RESS, G. On Interpretation, in: Simma (ed.), supra note 7 , p. 27, MN 2. 9 Ibid. , p. 27, MN 2. 10 Article 24(1) of the UN Charter. In Article 24(1) the Member States also agreed that “in carrying out its duties under this responsibility the Security Council acts on their behalf”. However, “[a]s an organ of the UN, the SC acts on behalf of the Organization and not on behalf of the individual member states”. Delbrück, supra note 7 , p. 404, MN 12. Also , Kelsen, supra note 7 , p. 280 et seq.

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