Study intervention

166 exercise their veto power to stifle any resolution emanating from the Security Council.²⁰⁹ An instance of this negative use of the veto instrument by a permanent member of the Security Council occurred in The Nicaragua Case (Nicaragua V. United States)²¹⁰ wherein consequent upon the judgment of the court against her, the U.S. vetoed a draft UN Security Council resolution calling for full and immediate compliance with the court‘s judgment.²¹¹

167 ordinates the administrative duties of the United Nations. All these organs aim at actualizing the objectives underpinning the United Nations system.²¹⁴

Among these organs, the Security Council, General Assembly and the Secretariat play crucial roles in the appointment of the Judges to the ICJ and could also ask for an advisory opinion of the court on any issue pertaining to their areas of competence.²¹⁵

Within the context of this work however, we intend to look at the relationship between the ICJ and the Security Council in bringing about peaceful resolution to any dispute with potential of rupturing International Peace and Security. This is more so given the fact that they are the only organs whose determinations are expected to be complied with by the affected parties.²¹⁶

A community reading of Articles 1 (1), 2 (3), 2(4) and 33(1) of the United nations Charter will show that pacific settlement of dispute is the preferred option for the resolution of conflicting interests among states. The relationship between the International Court of Justice and the political organs of the United Nations raises a great many legal as well as political problems and generally borders on the relations between law on the one hand and the maintenance of International peace and Security. It has been opined that this problem also dogged the League of Nations, though in a different hue.²¹⁷

As an organ of the United Nations, the court clearly constitutes part of the mechanism for the maintenance of peace and international security moreso when it is a principal organ. However the fact that there is no hierarchical relation between any of the other principal organs of the

214 These objectives are encapsulated in Articles 1 and 2 of the Charter.

215 In practice, only the General Assembly and the Security Council have powers to request for advisory opinion on any issue of concern. Other organs and agencies must circumscribe their request within the limits of their functions.

216 Article 25 and 94 of the Charter respectively.

217 Alain Pellet, ―The International Court of Justice and the Political Organs of the United Nations,‖

Available at http://www.alainpellet.eu/documents/pellets-1995-the ICJ and the political organs of the United Nations pdf. Accessed on 07/07/2013.

168 United Nations confers primacy on a given organ within the spheres of its functions as granted by the Charter. Thus, as the principal judicial organ of the United Nations, its primacy in that arena places its legal determination high over those of the political organs just as the primacy of the Security Council in determining threats to international Peace and Security is guaranteed. However, whatever the actions the political organs take, such is expected to conform to the Charter provisions and if it is accepted that the Charter is a legal document, then the ICJ‘s position becomes ever more relevant in complementing the political organs and guiding them into not extending their authority into judicial matters so as to avoid creating legal norms through non legal processes. Herein lies the dilemma of the relationship between the ICJ and the political organs of the United Nations, to wit; the General Assembly and the Security Council. Moreso when it is realized that the Charter contains no formal provisions for judicial review of the political organs‘ actions.²¹⁸ Consequently, the legal effects of the resolutions of these organs must be interpreted through the structural principles within the Charter, the authority and competencies of the organs and the case law of the ICJ.²¹⁹ To avoid the loss of institutional legitimacy and co-operation of member states, they must engage in auto interpretation of the validity of their actions as allowed under the Charter.²²⁰ The onus is therefore on the political organs to police their behavior. This could be herculean when considered against the fact that the political bodies make determinations most times according to the national interest o f their members.²²¹

218 G R Watson, ―Constitutionalism, Judicial Review and the World Court,‖ 34 Harv. Int’l L.J. (1993) p.1 at 4.

219 M Angelir, ―The International Court of Justice‘s Advisory Jurisdiction and the Review of Security

Council and General Assembly Resolutions,‖ Available at

http://www.law.northwestern.edu/lawreview/v/03/n2/1007/LR103n2Angelir.pdf. Accessed on 20/07/2013.

220 Keith Harper, ―Does the UN Security Council have the Competence to Act as Court and Legislature?‖

27 N.Y.U.J. Int’l & Pol, (1994) p. 103 & 106.

221 T Voon, ―Closing the Gap between Legitimacy and Legality of Humanitarian Intervention: Lessons from East Timor and Kosovo,‖ 7 UCLA J. Int’l L. & Foreign Affairs (2002) p. 31 & 38.

169 The political organs‘ relations to International Law in carrying out their duties under the Charter are different from that of the ICJ. In contrast to the political process, the law is primarily based on considerations of fairness and normative application of rules. Because, the court uses legal concepts and legal methods of proof, its tests of validity and the bases of its decisions are naturally not the same as they would be before a political or executive organ of the United Nations. The political organs examine questions in their political aspect and thus are legally entitled to base their arguments and their vote upon political considerations.

Characterizing this process, Higgins opined that the political organs‘ decision making process is one made not ―according to law‖ but ―within the law‖.²²²

The peaceful settlement of disputes and maintenance of international peace and security are two different but inter connected issues. As can be gleaned from a community reading of Articles 2(3)²²³ and 2(4)²²⁴ of the Charter, a peaceful settlement of disputes is instrumental to the maintenance of International Peace and Security.²²⁵ In this wise, Chapter VI of the Charter is very relevant as it suggests that a situation might arise out of a dispute the continuance of which is likely to endanger the maintenance of International Peace and Security.²²⁶ Similarly, the situation also may lead to international friction.²²⁷ In view of the foregone, the judicial autonomy and legitimacy of the ICJ is of high moment and very fundamental to the healthy functioning of the United Nations system. The structural principles embedded in the United Nations Charter makes it imperative that the ICJ do not cede control over judicial determination to political organs guided by the national interests of

222 R Higgins,‖ The Place of International Law in the Settlement of Disputes by Security Council,‖ 64 AM.

J. Int’l. (1970) 1, 16.

223 It provides thus: All members shall settle their international disputes by peaceful means in such a manner that International Peace and Security and justice are not endangered.

224 It is to the effect that all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state or in any manner inconsistent with the purposes of the United Nations.

225 N Ronzitti, ―Juridical Institutions and Security,‖ Available at http://www.uu-globalsecurity.org/pdf/rouzitti.pdf. Accessed on 20/07/2013.

226 Article 33(1) and 34 of the United Nations Charter.

227 Ibid.

170 member states. Thus, the ICJ it has been argued must bring to bear on international disputes the inherent advantage of the judicial process – an adversarial process that finds true facts and ensures the correct application of International law.²²⁸

Within the context of this work and against the backdrop of the fact that only the Security Council and the ICJ seem to enjoy concurrence of jurisdiction in respect of disputes involving two or more countries,²²⁹ we intend to focus more closely on the relationship between the ICJ and the Security Council in bringing about peaceful resolution to any dispute with potentials of rupturing International Peace and Security.

Chapter 6 of the United Nations Charter (i.e. Articles 34-38) invest the Security Council with the powers to settle disputes amicably whilst Chapter 14 of the Charter (i.e. Article 92-96) and Article 38 of the Statute also invest the ICJ with the powers of amicable settlement of disputes. A grey area here is whether the ICJ as the principal judicial organ of the United Nations have powers to judicially review the actions of the Security Council especially where the seising of the Security Council seem to be in neglect of Article 36(2)²³⁰ of the Charter and the roles expected of the Security Council under Article 94(2)²³¹ of the Charter. Relatively also can the court review the Security Council action taken under Chapter 7 of the Charter.

These questions become germane given the increased range and nature of the Security Council activities in recent times and rising visibility of the ICJ. A political organ‘s relation

228 M Angelir, op. cit. p. 1008. It is possibly in furtherance of this that the Charter and Statute provides for the advisory jurisdiction wherein the organs can seek advisory opinion from the court on legal issues.

The Security Council is specifically enjoined in Article 36(3) to refer disputes of a legal nature to the ICJ.

229 Article 12 of the Charter specifically prohibits the General Assembly from making any recommendation with regard to any dispute or situation while that dispute or situation is being considered by the council.

230 It provides as follows: [T]he Security Council shall take into consideration any procedure for the settlement of the dispute which have already been adopted by the parties.

231 It states thus: [i]f any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security council which may if it deems it necessary make recommendations or decide upon measures to be taken to give effect to the judgment.