CYIL vol. 14 (2023)

CYIL 14 (2023) THE UNTOUCHABLE: IS THE UN SECURITY COUNCIL BOUND BY INTERNATIONAL LAW? by the community at large of the rule “ as laying down patterns of conduct that have to be complied with ”. 36 Ipso facto , the international customary rules are emanating from “ an amorphous process in which pattern of behavior developed by states acting in their self-interest over a long period of time is coupled with opinions that the practice reflects a legal obligation ( opinio juris )”. 37 Custom, as a source of international law, had prevailed up to the beginning of the 19 th century, when treaty-making became for practical reasons (especially due to larger complexity of issues to be addressed, and continuously expanding international community of states) significantly more important in addressing common concerns of states. The advantage of (multilateral) treaties compared to traditional customary rules is their ability to “ clarify and improve rules of international law through the process of rendering them in binding written agreements ”, 38 namely codifying them in normative terms and so establishing new international law on the subject matter. The process of enacting unwritten customary rules in the form of lex scripta is generally recognised as a process of codification, thus “ more precise formulation and systematization of rules of international law in fields where there already has been extensive State practice, precedent and doctrine ”. 39 Some norms of the international law are hierarchically superior to ordinary norms because they are essential for the protection of fundamental interests of the international community. These norms called peremptory norms or ius cogens , are based on natural law and “ the principles of the law of nations as they result from the usage established among civilised peoples, from the law of humanity and the dictates of the public conscience ”; 40 and comprise international crimes such as genocide, slavery, war crimes, or crimes against humanity to name a few. 41 The emergence of new peremptory norms is preconditioned by its universal acceptance as ius cogens “ by an overwhelming majority of states, crossing ideological and political divides ”. 42 Peremptory norms of general international law, as defined in the most recent Report of the International Law Commission (2019), are those norms reflecting and protecting fundamental values “ accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character ”. 43 The notion of peremptory norms ( ius cogens ) was introduced into positive law already in 1969 by Article 53 and 64 of the Vienna Convention on the Law of Treaties (VCLT) by almost identical definition. By virtue 36 Shaw, supra note 22 , p. 6. 37 Charney, supra note 20 , p. 534. 38 Ibid ., p. 530. 39 Schachter, supra note 15 , p. 66. 40 DUPUY, P-M. The Constitutional Dimension of the Charter of the United Nations Revisited, 1 Max Planck Yearbook of United Nations Law , 1997, p. 13. 41 The Report of the ILC on peremptory norms in general international law (2019) offers in Conclusion 23 non exhaustive list of eight recognized ius cogens norms: the prohibition of aggression, the prohibition of genocide, the prohibition of crimes against humanity, the basic rules of international humanitarian law, the prohibition of racial discrimination and apartheid, the prohibition of slavery, the prohibition of torture, and the right to self-determination. Report of the International Law Commission on the work of its seventy-first session (2019), Official Records of the General Assembly, Seventy-fourth Session, Supplement No. 10 (A/74/10), Annex to Conclusion 23, pp. 146–147. 42 Shaw, supra note 22 , p. 97. 43 Supra note 41 , Conclusion 2, p. 142.

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