An Examination of Peremptory Norms of International Law in Enforcing the Rule of Law over the United Nations Security Council: Fundamental Strength or Structural Weakness

Abstract

Peremptory norms of international law reflect the legal concept of the international community in its modern, evolved form. It appears that this community has to some extent overcome its previous fragmentation and disunity and has genuinely come under the rule of international law. The contemporary international community, through the transformations it has undergone, has found its identity in the values upon which its very existence depends. This paper addresses the necessity for the United Nations Security Council to adhere to peremptory norms and seeks to answer the central question: Has the Security Council fulfilled its obligations regarding compliance with peremptory norms or erga omnes obligations? It is hypothesized that, based on the referential framework predicting the obligation to observe peremptory norms or erga omnes obligations, the Security Council has in some instances adhered to such norms and in others has failed to do so. Accordingly, employing the hermeneutic method of legal analysis as well as legal theory (including legal reasoning, contradictions, conflicts, and content analysis), the study concludes that: based on the referential approach, the Security Council is indeed bound to observe peremptory norms (erga omnes obligations). However, under the approach based on the Council’s practice, it becomes evident that its commitment to general international law and the United Nations Charter has not been consistent.