CYIL vol. 14 (2023)

PETRA RUFFER LUSTIGOVÁ CYIL 14 (2023) although the General Assembly has undeniably an important role to play too. As the Security Council’s responsibility regarding the maintenance of international peace and security “ is primary , not exclusive ”, 11 the General Assembly functions are “ not merely hortatory ”. 12 However, “ it is the Security Council, which, exclusively, may order coercive action against an aggressor ”. 13 The Security Council is the organ of the UN that is principally responsible for this mission, and Chapter VII of the UN Charter gives the Council the broadest powers in support of this pursuit. At the time, when the UN Charter was drafted, the way in which powers were distributed amongst the UN’s principal organs was not accidental. On the contrary, each organ was carefully chosen as the most suitable for a particular exercise of a certain power. The allocation of each specific power is directly related to the exceptional characteristics of each principal organ. The Security Council was not selected at random to be a watchdog for international peace and security but was chosen because of its capacity “ to ensure prompt and effective action ”, 14 and for its unique voting procedure that requires unanimity of the permanent members for substantive (i.e., non-procedural) decisions. The power of veto within the Security Council’s voting system should provide an important safeguard against the misuse of these sensitive Chapter VII enforcement powers. Moreover, the veto offers “ assurance to the permanent members and to some others that rash action would be unlikely ”. 15 3.1 What is understood by international law? Is it a Law ? This provocative question posed by Professor Henkin about the nature of the international law reflects the sceptics’ arguments that “ there can be no international law since there is no international legislature to make it, no international executive to enforce it, and no effective international judiciary to develop it or to resolve disputes about it ”. 16 And they are right, all these arguments are true. However, only partly true, since international law should rather be regarded as a sui generis law system. Certainly, compared to domestic law, international law has none of the above-mentioned essential characteristics of a legal system, but what is important and what counts is the general will of states that are treating it “ as law, consider themselves bound by it, attend to it with a sense of legal obligation and with concern for the consequences of violations ”. 17 Several observations can be made in this regard. Firstly (on creating the law), it is the states themselves, as members of international community, that create the rules of international law, and it is up to them, as of any other society members, to comply with the 11 Certain Expenses Case (Certain Expenses of the United Nations, Advisory Opinion of 20 July 1962), ICJ Reports (1962), p. 163. 12 Ibid. , p. 163. Also , O’CONNELL, M. E. International Law and the Use of Force (Foundation Press, 2 nd ed., 2009), p. 373. As well , HENKIN, L. et al., International Law: Cases and Materials (West Publishing Co., 3 rd ed., 1993), p. 997. 13 Certain Expenses Case (Certain Expenses of the United Nations, Advisory Opinion of 20 July 1962), p. 163. 14 Article 24(1) of the UN Charter. 15 SCHACHTER, O. International Law in Theory and Practice (Kluwer Law International, 1995), p. 391. 16 Henkin et al., op. cit. supra note 12 , p. 10. 17 Henkin et al., supra note 12 , p. 25 (reference to Brownlie, The Reality and Efficacy of International Law, 52 Brit.Y.B.I.L., 1981, pp. 1–3). 3. On the International Law

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