CYIL vol. 14 (2023)

CYIL 14 (2023) THE UNTOUCHABLE: IS THE UN SECURITY COUNCIL BOUND BY INTERNATIONAL LAW? rules of their own international society ( ubi societas, ibi ius ). Therefore, “ the real foundations of the authority of international law resides similarly in the fact that the States making up the international society recognize it as binding upon them ”. 18 The system of international law firmly rests on the consent of states, just as a domestic law system rests on the consent of the people. 19 International norms are accepted and observed by states, influence and govern their behaviour, and help to maintain order in relations between them. Secondly (on compliance with the law), norms of international law are generally observed by states and violations are comparatively rare. It is indeed in the interest of states to comply with rules that are the result of the manifestation of their wills through treaties or customary law. When the lawmakers themselves are the primary subjects to the law, [then the law will likely] reflect their collective interests, giving the law legitimacy and a strong pull toward compliance. Virtually all nations are committed to abiding by the rules of international law and, as a matter of fact, virtually all of the time they do abide by them . 20 Moreover, these rules reflect shared goals of the whole international community and “ formulate in legal terms such identical or complementary interests ” 21 of states. “ Thus, despite the occasional gross violation, the vast majority of the provisions of international law are followed ”, 22 and states usually only violate it on an issue regarded as vital to their interests. The high level of legitimacy that international law enjoys also relates to its contractual nature, because “ the legitimacy of consensual obligations such as … treaties is generally regarded as unproblematic, since the state parties either participated in the drafting of a treaty, or freely decided to accede ”. 23 Thirdly (on the judiciary system), in polemic with Professor Henkin, “ [t]he question is not whether there is an effective judiciary, but whether disputes are resolved in and orderly fashion in accordance with international law ”. 24 Indeed, international society is based on the sovereign equality of the member states, that comply with the rules of international law even though there is no superior and coercive authority above them, there is no common arbiter in international society ( qui iudicem communem nullum habent ), but this should not imply that there are no sanctions available. Sanctions applied could be individual (bilateral) or collective. “ In the absence of organized authority superior to the independent state, the principal sanctions of international law, aside from unilateral use of force, … are the disadvantages incurred by its breach, including the termination of the relations regulated by it and retaliation. ” 25 Even 18 Henkin et al., supra note 12 , p. 21 (reference to Fitzmaurice, The Foundations of the Authority of International Law and the Problem of Enforcement, 19 Mod.L.Rev , 1956, pp. 1, 8–9). 19 Schachter, supra note 15 , p. 11. 20 CHARNEY, J. I. Universal International Law, 87 AJIL , 1993, p. 533. 21 Harris, supra note 6 , pp. 8-9 (reference to Morgenthau, Politics Among Nations, 6 th ed., 1985, pp. 312–313). 22 SHAW, M. N. International Law (Cambridge University Press, 4 th ed., 1997), p. 6. 23 VÁLEK, P. Legality versus Legitimacy and the Use of Force; in: Miller & Bratspies (eds.), Progress in International Law (Koninlijke Brill NV., 2008, p. 620). See also , Charney: “Perhaps the most popular theory is that states become bound to the international legal system on the basis of a social contract, actual consent or tacit consent”, supra note 20 , p. 531. 24 Henkin et al., supra note 12 , p. 24 (reference to Henkin, How Nations Behave (2 nd ed., 1979), pp. 25–26, 320–321). 25 Henkin et al., supra note 12 , p. 31 (reference to Lissitzyn, The International Court of Justice (1951), pp. 5–6).

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