“The contribution of the
International Court of Justice and of the Security Council to the maintenance
of international peace and security is highly overrated.” Discuss.
Current international law and its
structure is built around the concept of “Sovereign Equality” of all states
which requires that every state whether large or small be treated as sovereign
thus placing, at least theoretically, all members of the international
community on the same footing with the same rights and obligations. While the
concept of Sovereign Equality provides equal footing to all states, it also
recognises that all actions of a state within its own boundaries are
inalienable and the exclusive purview of that state.
Unlike most domestic legal
systems, no state can be forced under the ambit of any international law unless
it specifically subscribes to it or enters into a treaty creating such
obligations. This is not to say that states are above the pressure of
participating in international forums such as the United Nations, as membership
in such an organisation confers international recognition and various benefits
including representation in an international diplomatic forum, involvement in
international affairs which may directly or indirectly effect the state as well
as trade benefits and some semblance of protection.
However, regardless of the
benefits and pressures, any participation in international forums is considered
completely voluntary and any submission to international laws, barring some
exceptions, requires the states submission to the jurisdiction of the
international body. Furthermore, if a state so desires, it may rescind its
membership of any international forum at any time it deems fit and proper.
Indeed, there still exist states today, albeit a small minority, who view current
international law as a farce and the United Nations as a tool for powerful
nations to manipulate world events to their own benefit.
Currently, the largest
international organisation is the United Nations which has, over time, gained
validity and relevance with a large majority of the world’s states as members
and a vast infrastructure of humanitarian and peacekeeping efforts as well as
constant treaty negotiations and diplomatic efforts, all with the objective of
providing some form of peace and stability and to prevent future world wars.
In order to ascertain the
validity of the purposed statement, we have to first review the origins of the
United Nations and along with it the International Court of Justice and the
Security Council. The predecessors to the current United Nations, the League of
Nations & and the Permanent Court of International Justice were formed in
the aftermath of the First World War or as it has alternatively been termed,
“the war to end all wars” which due to its expansive scope and extensive death
toll left a majority of Europe crippled and resulted in the nations of the
world assuming a responsibility to ensure world peace. The League of Nations
and its mission included provisions to prevent future wars through collective
security, disarmament and the settlement of international disputes through
negotiation and arbitration. However, the League of Nations initial founding
membership of 42 states failed to expand their membership beyond 58 states and
subsequently failed to enforce their mandate in any lasting way. By the time
the League of Nations had dissolved in 1946, there were only 24[1]
members with the remaining members having withdrawn from the organisation.
In order to understand the failure
of the League of Nations, we have to consider the perspective of the time
period it was established in, (1919) when the sovereignty of a state was
absolute with regards to its treatment of its subjects and the power to declare
war on any other state was unchecked and considered the absolute right of the
state. While the initial ideology of collective security behind the League of
Nations was relevant, the geo political nature of the world at the time and the
concept of absolute sovereignty of a state which was enjoyed by its members at
the time prevented the league or its members form embracing the concept of an
international organisation that may have any effect on their conduct. Other significant
considerations for the failure of the League of Nations were the
non-participation of the United States of America and the withdrawal of Russia.
With these two major powers absent from the ranks of the League of Nations, the
League was left distinctly euro centric and was robbed of any allusions of
being a legitimately international organisation.
After the failure of the League
of Nations to preserve international peace and the resulting Second World War,
the nations of the world once again attempted to constitute an organisation
with a similar yet expanded mandate. The United Nations came into being as a
necessity after the invention and use of nuclear weapons. With the destructive
power these new found weapons of mass destruction held the preservation of
international peace had gained a larger significance.
With the reveal of the holocaust,
other atrocities and the resulting international outcry at the war crimes
committed during the Second World War, the other purpose adopted by the new
United Nations was the recognition of basic human rights of people within a
state on an international level and the drafting of international treaties to
protect the same.
The Charter of the United Nations
(its constitutional document) through Article 23 formed the Security Council
with the primary function and objective of the “maintenance of international peace and security”[2].
The Security Council generally enforces its objective by way of the
establishment of peace keeping operation, international sanctions or the
authorisation of military action through resolutions passed by it.
The Security Council consists of 5
permanent members (US, Russia, China, France and UK) and 10 elected
non-permanent members. The 5 permanent members hold the power to “Veto” the use
of force proposed in the Security Council, which power was intended as a check
and balance against the misuse of powers by other members of the Security
Council in an increasingly bi polar world.
Further, the Charter of the
United Nations allows for a framework of enforcement with regards to the resolutions
of the Security Council. The members of the United Nations were, by virtue of
Article 25, bound to carry out the decisions of the Security Council “in accordance with the present Charter”[3]
After the failure of the League
of Nations and the Permanent Court of International Justice, the newly formed
United Nations presented the world with a new power dynamic. The general
assembly provided all member states with a standard forum for the airing and
resolution of disputes, however, the Security Council with its permanent and
rotating elected members were envisioned as a group of super powers with the
ability and standing to enforce international peace. The International Court of
Justice was established as the “principal
judicial organ of the United Nations” and its statute was based on that of
the Permanent Court of International Justice. [4]
However, in the wake of the Second
World War, the subsequent emergence of both the United States and Russia as two
major powers in the world and the ensuing Cold War, the Security Council, along
with the majority of the world, was polarised on either side. With the ability
of either power to veto any action or initiatives that may be against their own
or their allies’ interests, the Security Council was for the most part rendered
impotent. The ability of the Security Council to effectively intervene in most
international crises was for all practical purposes limited by the very states
appointed to ensure the peace and security of the world.
This is not to say that the
Security Council was completely inactive during the Cold War as intervention
was authorised on various occasions such as the Korean War (which was resolved
in the absence of Russia), the Suez Crisis and the Congo Crisis. However, after
the fall of the Iron Curtain and the rise of the United States as the single
superpower in the world, the United Nations Security Council stepped up its
activities and authorised peacekeeping missions in Kuwait, Cambodia, Rwanda,
Sudan, Namibia, Bosnia, Somalia and the Democratic Republic of Congo. More
recently, the United Nations has intervened in the Sierra Leone Civil War,
Darfur and authorised the invasion of Afghanistan.
However, the organisation is not
without its detractors who believe it to be far from neutral and consider it a
tool for the western and developed world to pressure members for their own
political or economic reasons with the use of economic sanctions and the threat
of military force. Other parties disagree with the fundamental way the United
Nations is structured and view its insistence and heavy reliance on procedural
correctness as a hindrance to its ability to perform necessary actions in time
and provide justice. Most importantly the power of Veto is a significant bone
of contention with most states who consider it a get out of jail free card for the
permanent members of the Security Council.
The criticisms of the Security
Council have gained further momentum after the 2003 war on Iraq. The United
States sidestepped the authorisation of the Security Council to invade Iraq
when it first purposed a resolution in the Security Council and subsequently
withdrew the same when it became apparent that the purposed resolution would be
vetoed by other permanent member of the Security Council. Had the resolution
been vetoed, the invasion of Iraq may not have materialised or it would have
become much more difficult for the United States to shore up much needed
support and allies for what would, in those circumstances, have been an
explicitly illegal invasion.
The abovementioned criticisms of
the Security Council and the United Nations were given weight when in 2004, the
Secretary-General of the United Nations Kofi Annan stated that the invasion of
Iraq was not in conformity with the Charter of the United Nations and was in
fact illegal[5].
However, due to the United States position as a permanent member of the
Security Council, the dissenting members had no recourse against such acts. Furthermore,
the United States unsanctioned action in Iraq has set a precedent for
international intervention without the United Nations Approval which the
country has further evolved into a policy of unilateral intervention against
other states in the interest of pre-emptive action veiled in a vague shroud of national
security.
More importantly, under Article
39 of the United Nations Charter the Security Council has the ability to
determine whether a threat or breach to the peace or an act of aggression has
taken place. [6]
This determination carries significant ramifications for the accused as it may
result in the imposition of action under Article 41[7]
(non-military sanctions) or Article 42[8]
(military operations). The ability to make this determination is a significant
power which the Security Council enjoys and exercises without oversight or any
legal recourse or appeal process for the accused state.
Looking beyond pure military
action, the more subtle and, at times, more damaging power held by the Security
Council is the enforcement of economic and trade sanctions against specific
states. In the past the imposition of sanctions has yielded better results as
compared to military action, however, the same power has the potential to be
misused especially considering the effect of economic sanctions on a state.
Some member states have argues that economic sanctions do nothing to effect the
government of a state, rather they have a severe impact on the people of a
state who more often than not have no control over the actions of their
government, resulting in the undue suffering of the common man. Such was the
case in the past when sanctions were imposed against Iraq and more recently
Iran. Iran in particular has been subjected to severe sanctions and trade
restrictions, recently forcing the country to soften its hard-line position on
various issues and become more conducive to international cooperation.
It is interesting to note that states
in the Security Council and the United Nations in general have developed a
tendency to engage in back door diplomacy whereby states meet with each other
outside of the organisation and discuss/negotiate matters as well as enter into
alliances for specific votes, all of which in the end renders any actual debate
in the United Nations itself no more than a formality with states having
already decided their votes on issues that have yet to be tabled. Such diplomacy,
lobbying of votes and the leveraging of benefits to other treaties or
aid/investment money in exchange for votes leaves room for interstate coercion
and influence, at times, rendering the very purpose of the United Nations as a
forum for discussion and diplomacy moot.
While the powers of the Security
Council appear, in practice, to be unlimited and unquestioned when it comes to
passing resolutions, the Charter of the United Nations requires that all
members are bound to carry out the resolutions of the Security Council in
accordance with the Charter. This requirement of conformity with the Charter has
been interpreted as procedural in nature rather than actual legal restrictions
on its capabilities with the Charter acting as a constitution. The result is a
Security Council with unlimited power whose directives have a presumption of
validity attached with them and no mechanism for questioning or reviewing the
same unless the power is claimed by the International Court of Justice.
The International Court of
Justice was established under the Charter of the United Nations in accordance
with Chapter XIV[9]
wherein the Court is established as the principal judicial organ of the United
Nations with all members of the United Nations as facto parties to the statute of the International Court of Justice.
The court also functions as an advisory body when required by the General
Assembly whereby it can be requested to provide an advisory opinion on any
legal question. Further, the decisions of the International Court of Justice
can be enforced via the Security Council through Article 94 (2) of the Charter
wherein if a party fails to fulfil its obligations as under a judgement of the
International Court of Justice, the other party may approach the Security
Council for recourse. The Security Council after reviewing the case may, make
recommendations or alternatively decide upon measures which would give effect
to the judgement. [10]
With regards to the International
Court of Justice and its powers under the Charter of the United Nations, it
does not appear to have been expressly given the power to review actions of the
other organs of the United Nations. Therefore, there has been extensive debate
over whether the International Court of Justice has a power of “judicial
review”, as is available in some domestic legal systems, over actions taken by
other organs, especially the Security Council, which, as stated above, is
perceived to exercise unfettered powers of sanction.
While the power of judicial
review does not appear to be a part of the Charter of the United Nations, a
review of the negotiating history of the Charter reveals that attempts to
include the same into the Charter were made by Belgium during the San Francisco
conference of 1945. During the Conference the Belgium representative proposed
that any state confronted by the Security Council would have the right to ask
the court whether the recommendation made by the Security Council would
infringe on its essential rights. If the court was to find that the state’s
rights had been disregarded or were being threatened, the court would ask the
Security Council to either reconsider the question or alternatively to refer
the dispute to the Assembly for decision.[11]
While the above mentioned Belgian
amendment to the draft was discussed at the 1945 conference, there was
opposition to it. The more relevant arguments against such action were the
consideration of time and the delay in action by the United Nations to a threat
to peace or a crisis situation while the organisation would be constrained from
action until such time that a final determination was made as to the validity
of the actions recommended by the Security Council and their impact on the
subject state’s rights. The representatives of the future permanent members of
the Security Council opposed the amendment with Russia stating that the
Security Council should receive the full confidence of the members of the
organisation, whereas America reassured the delegates that the draft
requirements of justice and international law would suffice in keeping a check
on the Security Council. The opposition of the amendment by the future
permanent members was clearly aimed at minimising the amount of oversight and
limitations on the power of the Security Council, which as it currently stands,
they were successful in doing. The Belgian proposal was withdrawn and re
submitted at a later time, only to be defeated.
Thus, in practice and on paper,
it appears that the International Court of Justice does not have the power of
judicial review over any actions taken by other organs including the Security
Council. This is further reinforced by the judgements of the International
Court of Justice as was the case in the Certain Expenses Case [12]
wherein the Court shirked the authority of judicial review of its own accord
stating that:
“in the legal systems of states, there is often some procedure for
determining the validity of even a legislative or governmental act, but no
analogous procedure is to be found in the structure of the United Nations.
Proposals made during the drafting of the Charter to place the ultimate
authority to interpret the Charter in the International Court of Justice were
not accepted…”[13]
It is to be noted, however, that
the court only denied its ultimate authority, it does not specifically deny all
authority to interpret the Charter, which considering the fact that the
International Court of Justice is the “principal
judicial organ of the United Nations”[14],
it must necessarily have some form of jurisdiction to interpret the statute
and the Charter of the United Nations in order to fulfil its duties. This was
illustrated in a separate opinion of Judge Morelli who stated that:
“while the organ requesting the opinion is quite free as regards the
formulation of the question to be submitted to the Court, it cannot, once the
question has been defined, place any limitations on the court as regards the
logical process to be followed in answering it… any limitation of this kind
would be unacceptable because it would prevent the Court from performing the
task in a logically correct way… therefore, even according to the request for
advisory opinion, the Court is free to consider or not consider the question of
conformity of the resolution with the Charter…”[15]
This trend continued in the
pronouncements of the International Court of Justice as was illustrated in the
Namibia Case[16].
In the case, the Court was again approached for an advisory opinion on the
legal consequences of South Africa’s continued presence in the South – West
Africa after a resolution had been passed by the Security Council requiring
South Africa to withdraw from South – West Africa. The International Court of
Justice held that:
“Undoubtedly the Court does
not possess powers of judicial review or appeal in respect of the decisions
taken by the United Nations organs concerned.”[17]
However, the Court simultaneously stated that “the decisions made by the Security Council… were adopted in conformity
with the purposes and principles of the Charter and in accordance with its
Articles 24 and 25”[18]
A review of the above quoted
statements from the same judgement appear to contradict one another as in one
line, the International Court of Justice is in no uncertain terms denying its
power of judicial review over the organs of the United Nations, while in the
same judgement, the Court is doing the exact opposite and considering and
confirming the conformity of the Security Council’s decision in accordance with
the Charter of the United Nations.
This inconsistency between the
actions and the words of the International Court of Justice leads to the
appearance that the Court may have a narrow power of judicial review where it is
required to provide an opinion on a resolution, as the consideration of the
resolutions validity is central to its application in accordance with the Charter
of the United Nations. While the words of the Court do not in any way undermine
the authority of the Security Council, they do however, in a very subtle and
neutral manner presume an authority or ability to review the same.
Moving further down the time line
of the decisions of the International Court of Justice, the Lockerbie Case was
another instance where the question of the existence of the Courts right of
judicial review was brought forward. In 1988 Pan Am 103 was blown up over
Scotland resulting in the death of over 250 people. In the aftermath the United
States and United Kingdom, after conducting their investigations, pointed the
finger at two Libyan intelligence agents[19].
The two states demanded the immediate handover of the two accused agents,
however, Libya refused to do so.
In 1992 the Security Council
adopted a resolution requiring Libya to provide a “full and effective response to the request for surrender”[20].
In response to the resolution, Libya
initially requested that a panel of impartial judges be appointed by the
Secretary General in order to lead an inquiry into the accusations on the
Libyan suspects[21].
The state further demanded that the accused be extradited to a third neutral
country. However, Libya later changed its position stating that its domestic
law prevented the extradition of its own nationals, which prevented the state
from complying with the Security Council resolution.[22]
Soon afterwards Libya filed
separate suits against the United Kingdom and the United States in the
International Court of Justice claiming that the states were, in their
continuing attempts to gain custody of the accused Libyans, in violation of the
Montreal Convention for the Suppression of Unlawful Acts Against the Safety of
Civil Aviation (Sabotage) of 1971[23].
Article 24 of the Convention states that any party to a dispute concerning two
or more states which could not be settled through negotiations would be
submitted to arbitration. Further, if the parties failed to come to an
agreement on the organization of the arbitration within 6 months of the
request, the dispute may be referred to the International Court of Justice.[24]
Libya had argued that the
resolutions requiring extradition of the Libyan nationals were invalid under
Article 7 of the Convention, wherein the state of the offender had the choice
to either extradite the alleged offender or have its own authorities prosecute
them[25].
Libya claimed that it had initiated the process the accused persons for
prosecution domestically and requested that the International Court of Justice
prevent any action by the responding states designed to coerce Libya into
extraditing the accused individuals. [26]
Further, Libya sought a finding from
the International Court of Justice that the Security Council had exceeded its
Charter–delegated powers by threatening to impose sanctions which infringed the
exercise of Libyan rights under the Montreal Convention. However, before the
International Court of Justice could provide its judgement the Security Council
adopted a resolution imposing universal and mandatory commercial and diplomatic
sanctions on Libya to ensure surrender of the accused Libyan nationals[27].
Regardless of the abovementioned
resolution, the International Court of Justice issued orders soon after with
the majority supporting the resolution and validating the rights of the US and
the UK as granted under it. While the dissenting judgements from some of the
judges envisaged limitations on the powers of the Security Council by the
provisions of the Charter of the United Nations, they did not go so far as to
definitively establish the same except for the ad hoc judge from Libya who, in
his judgement, viewed the requirement of Article 25 of the Charter for the
Security Council’s decisions to be in accordance with the Charter of the United
Nations as a substantive requirement rather than a procedural one. Therefore,
he argued in dissent, that Article 25 could not render a binding resolution
which was not in accordance with the Charter of the United Nations.
The above cases seem to support
the proposition that the International Court of Justice does not have the power
of judicial review over the resolutions of the Security Council, and while the
Court has flirted with the idea of such a power, it has ultimately avoided any
serious considerations of the same by repeatedly and explicitly stating the
same in its advisements.
While the International Court of
Justice has refused to expand its advisory jurisdiction, it has, however,
stayed the course with regards to international disputes which have been
brought to it. The most significant case of which was the Nicaragua vs. U.S. wherein
Nicaragua brought forward an action against the US and its use of illegal
measures in their attempts to overthrow the government with the use of tactics
which included the training and arming of the infamous contra forces.
The US argued that the
International Court of Justice did not hold the appropriate jurisdiction to
adjudicate on the matter as the matter was primarily political. It further
argued that in so far as the matter may effect international peace and
security, it fell under the Security Council, as under Article 24 of the United
Nations Charter, the Council was the body with the “primary responsibility for the maintenance of peace and security…”[28]. While this argument may carry weight,
the fact that the US held a veto power in the Security Council meant that the
Council would be unable to take any effective action against the US.
Later on the US announced that it
no longer recognised the compulsory jurisdiction of the International Court of
justice and promptly withdrew from further proceedings in the International
Court of Justice claiming that the Court lacked the competent jurisdiction and
that the case was an attempt to misuse the powers of the Court for political
purposes. However, the International Court of Justice continued to proceed with
the case holding that the parties had accepted the jurisdiction of the Court
under Article 35(2) of the Statute of the Court[29].
It also held that the Court was the principal judicial organ of the United
Nations and that it held jurisdiction over all cases referred to it by state
parties.
The Court continued the
proceedings in the absence of the US and ruled against it in 1986, however, as
the primary enforcement body of the International Court of Justice is the
Security Council, and considering the United States position as a permanent
member, the US was able to veto a resolution calling for all states to observe
international law. The General Assembly was able to pass a resolution for
compliance with 94 votes in favour and 3 votes against. Historically, the US
was able to enforce its will on Nicaragua regardless of the support of the
majority of the members of the United Nations.
A review of all of the above and
finally the blatant act of defiance of the US towards International Law
indicates the true weakness of international law as it stands today, wherein
the world is reliant on the cooperation of the loser to a dispute or the force
of powerful nations to ensure a lasting peace. With the current set up of the
United Nations the Security Council reigns supreme, having freed itself of the
shackles of compliance with the Charter while at the same time placing five
states with already vast resources in a position of advantage over the rest of
the world by way of the power of veto. Furthermore, the failure of the
International Court of Justice to recognise or accept any power of judicial
review over other organs has made the Court a mostly ineffective organ to
handle disputes involving any significant matters of threats to the peace and
stability of the world.
However, that is not to say that
the United Nations Security Council and the International Court of Justice have
been completely ineffective in their duties when it comes to disputes not
directly or indirectly affecting any powerful nations. In such circumstances
these organs, for the most part, work sufficiently to manage affairs.
It may be argued that with some
restructuring, such as the provision of powers of judicial review to the
International Court of Justice, tempered by the requirement of a reference from
the General Assembly would enable the Court to act as constitutional check and
balance on the unfettered exercise of the Security Council’s sanctions while at
the same time, granting the Court the mandate of the majority of the members of
the United Nations. Another necessary reform would be either the complete
removal of veto powers from the Security Council or alternatively the temporary
suspension of veto for a state when a resolution purporting to enforce a ruling
of the International Court of Justice against it is tabled. Such small yet
significant amendments to the structure and procedure of the Security Council
and the International Court of Justice would allow for transparency, neutrality
and the effective maintenance of international peace and security as was the
original intent of the League of Nations and later on the United Nations.
(4839 Words)
BIBLIOGRAPHY
Books:
1. Public International
Law, Fifth Edition, by W. Mansell;
2. Textbook on
International Law, Second Edition, by Dixon, M;
3. International Law,
Third Edition, by Cassese, A; and
4. Public International
Law by Kaczorowska, A.
Statutes,
Charters & Conventions:
1. Statute of the
International Court of Justice;
2. Charter of the United
Nations; and
3. 1971 Convention for
the Suppression of Unlawful Acts Against
the Safety of Civil Aviation;
Articles
and Journals:
1. Second-Guessing the Security
Council: The International Court of Justice and its Powers of Judicial Review
by Ken Roberts (Citation: 7 Pace Int’l L. Rev. 281 1995);
2. The Impact off
Security Council Decision on Dispute Settlement Procedures by Derek Bowett
(Citation: 5 Eur. J. Int’l L. 89 1994);
3. The International
Court of Justice and the Security Council: is there room for judicial control
of the political organs of the United Nations? By Dapo Akande ( Citation: 46
Int’l & Comp. L.Q. 309 1997;
4. Legality of the
Security Council Action: Does the International Court of Justice Move to Take
Up the Challenge of Judicial Review? By Kamrul Hossain (http://www.usak.org.tr/dosyalar/dergi/SX55yIGN3p9Urd6lBNqcC9nFBjNVyC.pdf); and
5. The Lockerbie
Controversy Tension Between the International Court of Justice and the Security
Council by Eric Zubel (Citation: Annual Survey of International &
comparative law: Vol. 5: Iss. 1, Article 10.
[4] UN Charter, Chapter
XIV, Article 92. http://www.icj-cij.org/documents/index.php?p1=4&p2=1&#Chapter5
[19] See the Declaration
of the U.S., Fr & Gr. Brit. On Terrorism, 31 I.L.M. 723 (1992) (demanding
surrender of the agents)
[23] Montreal Convention
for the Suppression of Unlawful Acts Against the Safety of Civil Aviation
(Sabotage) 1971 24 U.S.T. 565
[25] Article 7, of the
Montreal Convention for the Suppression of Unlawful Acts Against the Safety of
Civil Aviation (Sabotage) of 1971- http://cil.nus.edu.sg/rp/il/pdf/1971%20Convention%20for%20Suppression%20of%20Unlawful%20Acts%20against%20the%20Safety%20of%20Civil%20Aviation-pdf.pdf
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