CYIL vol. 14 (2023)

CYIL 14 (2023) THE UNTOUCHABLE: IS THE UN SECURITY COUNCIL BOUND BY INTERNATIONAL LAW? to maintain international peace and security and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace contained in Article 1(1). In the pursuit of the purposes set in Article 1, the UN and its members shall act in accordance with principles provided for by Article 2, namely: principle of sovereign equality of states; fulfilment of obligations in good faith; peaceful settlement of disputes and refraining from the use of force against territorial integrity or political independence; and the principle of participation in, and non-jeopardization of any collective preventive or enforcement action. Regarding the fundamental purposes, they represent the core of the collective security scheme around which the Charter has been constructed. Therefore, as such, they are very broad and stand for the main ideas and spirit of the Charter. It is obvious from the wording of Article 1 that the obligation to act in accordance with principles of the Charter extends to the Organization, and certainly to the Security Council as its main organ, and to the UN Member States. Therefore, the Security Council should respect these purposes and principles. Nonetheless, as reaffirmed in the Certain Expenses case, when the Organization takes an action which is “ appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires ”. 63 And this stands for a generally accepted opinion, given that the UN Charter provides the Security Council with a virtually unlimited powers to fulfil these ends. However, in the dictum of Article 1(1), there is a part of a phrase that could possibly pose a legal limit on the Security Council’s action, and it is the requirement to act “ in conformity with the principles of justice and international law ”. Article 1(1) specifies the means to achieve this goal and offers three concrete means in the form of collective measures: i) measures for the prevention and removal of threats to the peace; ii) measures to suppress acts of aggression or other breaches of the peace; and iii) measures to bring about by the peaceful means, and in conformity with the principles of justice and international law , the adjustment or settlement of international disputes which might lead to a breach of peace. The question here arises, whether the expression “ in conformity with the principles of justice and international law ” relates only to the measures under point iii), or also to those under points i) and/or ii)? According to the widely accepted interpretation, the principles of justice and international law mentioned in Article 1(1) apply just to measures that relate to adjustment or settlement of international disputes. This interpretation is supported not only by the authors of the Commentary to the United Nations Charter , but also by recognised scholars in international law, and by the International Court of Justice. Professor Gowlland-Debbas, for example, acknowledges that “ [i]t has even been argued that the Council can ignore principles of justice when it decides on enforcement action, since justice is referred to in Article 1(1) only in connection 63 Certain Expenses (Certain Expenses of the United Nations, Advisory Opinion of 20 July 1962), ICJ Reports (1962), p. 168.

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