CYIL vol. 14 (2023)

CYIL 14 (2023) THE UNTOUCHABLE: IS THE UN SECURITY COUNCIL BOUND BY INTERNATIONAL LAW? Whilst the relation between the UN Charter and general lex scripta of the international law does not seem to be problematic since the hierarchy of treaties is clearly stated in Article 103 of the UN Charter, the situation regarding peremptory norms of international law is, however, more complex. Here an important question arises as to whether Article 103 can operate where member states’ obligations arise from norms which are peremptory. An answer can be found in the Report on peremptory norms of general international law drafted by Professor Tladi as a part of the Annual Report of the ILC . According to the draft conclusion 16 of the report which emphasizes that an act of an international organization “ that would otherwise have binding effect does not create obligations under international law if and to the extent that they conflict with a peremptory norm of general international law ( jus cogens )”. 92 The logic is seen in the hierarchic superiority of peremptory norms, because “ [i]f rules of international law that are inconsistent with peremptory norms of general international law ( jus cogens ) cannot be created through treaties, customary international law and unilateral acts ”, it would be unreasonable to expect, that resolutions of international organizations could have this effect. Article 103 not only establishes a certain hierarchy between international treaties with the dominant position of the UN Charter, it equally makes obligations arising from binding decisions of the Security Council to prevail over any other obligations. 93 Despite this, the Security Council through its resolutions adopted under Chapter VII of the Charter cannot override ius cogens obligations which are non-derogable, “ even when they arise from customary international law ”, 94 and those resolutions cannot produce binding force upon the Member States of the UN. 95 Nevertheless, “ [a]s far as members of the UN are bound by Art. 25 to accept and carry out the decisions of the Security Council … they are also bound, according to Art. 103, to give these obligations priority ”. 96 It might seem that at least in the case of ius cogens , the Security Council is not free to act. However, peremptory norms, “ at least not at this stage of development of international law, present a legal limit to the SC’s enforcement powers ”. 97 The propositions regarding peremptory norms ( ius cogens ) contained in the Report of the ILC are at present only in a form of draft conclusion and have not been agreed by the member states. Still, one may say that the moral obligation to refrain from infringing peremptory norms is so immense, that it is difficult to imagine that the Council would cross the border. 92 Supra note 41 , Conclusion 16.. Examples of a resolution, decision or act of an international organization that would otherwise have binding effect include a decision in a resolution of the Security Council, taken under chapter VII of the Charter of the United Nations, or a decision of the General Assembly admitting a State to become a member of the Organization. See , supra note 41 , p. 189, para 2. 93 Gowlland-Debbas, supra note 2 , p. 88. However, “[w]hen UN organs, including the SC adopt non-binding resolution, Article 103 is not applicable.” Bernhard, supra note 52 , p. 1121, MN 13. 94 Gowlland-Debbas, supra note 2 , p. 93. 95 DOCHRING, K. Unlawful Resolutions of the Security Council and their Legal Consequences, 1 Max Planck Yearbook of the United Nations Law , 1997, p. 109. 96 Bernhard, supra note 52 , p. 1120, MN 10. And also when “new obligations … arise under the present Charter … Art. 103 becomes [also] applicable.” Ibid. , p. 1121, MN 14. 97 Oosthuizen, supra note 66 , p. 559.

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