CYIL vol. 14 (2023)

CYIL 14 (2023) THE UNTOUCHABLE: IS THE UN SECURITY COUNCIL BOUND BY INTERNATIONAL LAW? The principle of the Charter’s superiority is contained in its Article 103, 53 and provides that “ [i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail ”. However, Article 103 does not expressly say whether treaty provisions incompatible with the Charter are void, voidable, suspended, or unenforceable. It is only stated that the Charter has a higher rank and that obligations derived from the Charter must prevail. 54 Moreover, Professor Tladi correctly points out “ [w]hile this provision [Article 103 of the UN Charter] speaks only of international agreements, it has been interpreted as applying to customary international law and certainly to resolutions, decisions and acts of other international organizations ”, 55 therefore it applies also to the UN organs binding decisions (i.e., Security Council resolutions or certain General Assembly resolutions having binding effect on member states). This holds true especially for decisions and enforcement measures of the UN Security Council adopted under Article 25 of the UN Charter. 56 4. Presumed Legal Limits to the Security Council Actions While the preceding text should have provided a resumé of provisions de lege lata of the relevant aspects relating to answering the question posed in the title of this article, now is the time to ponder on the reality. As it has been suggested above, the Security Council, as a subject of international law, should act in accordance with general international law, be it lex scripta , international customary rules, ius cogens , general principles of law, or judicial decisions and teachings. And additionally, the Council also has to primarily and undisputedly comply with the rules of the UN Charter. 4.1 Limits stemming from the UN Charter There is a general agreement that UN Security Council is principally bound by its constituent document, the UN Charter. This obligation appears to be twofold. The Security Council as a main organ of the UN must respect the distribution of powers and authority between organs, the procedural rules in the UN Charter, and its own procedural rules. Simultaneously, the Security Council has to act in accordance with the UN Charter’s fundamental principles and purposes, as they reflect the highest values of the international community and they mirror not only customary international law, but also grounds of peremptory norms. Besides this, nowhere does the UN Charter limit the powers of the Security Council to make sure its actions are not in any way hindered. Therefore, the only limitations to the Security Council’s functions, are to be said, the fundamental principles 53 Article 103 of the UN Charter : In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. It is recognized under this provision that the Charter also takes precedence in relation to treaties concluded by international organization (as opposed by states) with the reference to the Article 30 of the 1986 Vienna Convention, Bernhard, supra note 52 , p. 1119, MN 4-5; and that “all member states of the UN are bound to respect treaties concluded by the [UN] organization”. Bernhard, ibid. , p. 1121, MN 11. 54 Bernhard, ibid ., p. 1119, MN 6. This notion was included in the Charter to avoid a potential conflict between contradictory provisions in different treaties and to avoid any collisions in applying general rules of international law such as lex posterior derogat legi priori , or lex specialis derogat legi generali . 55 Supra note 41, p. 189, note 857. 56 See more , Bernhard, supra note 52 , p. 1120, MN 10.

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