More in-Depth Examination of the Charter Provisions: (Part 2)
Thirdly, the functions of the Security Council and the ICJ concerning the settlement of disputes are exercised independently of one another.[1] They apply different standards: the ICJ has to decide exclusively on the basis of international law under Article 38 of the ICJ Statute,[2] whereas the Security Council has to decide primarily according to political criteria.[3] Treating them as performing fundamentally the same function would make of the term €principal judicial organ€ merely empty words. There is no point in having a €principal judicial organ€ if that organ is deprived of the power to exercise its judicial power (at least to provide its judicial opinion) over one branch of the organization, the function of which is the key element of the organization's success.[4] Furthermore, if the ICJ were compelled to give legal effect to ultra vires actions of the Security Council, it would lead to paradoxical results, given the other provisions of the Charter.
Lastly, there are many other less visible yet relevant Articles scattered within the Charter that provide helpful guidance. Article 36 (3) provides that in making recommendations, the Security Council €should also take into consideration that legal disputes should as a general matter be referred by the parties to the International Court of Justice.€[5] Article 92 says that the ICJ Statute €forms an integral part of the present Charter€, and Article 93 further mentions that all members of the United Nations become ipso facto parties to the Statute.[6] The judges of the ICJ are elected by joint votes in the General Assembly and the Security Council,[7] and the expenses of the ICJ are borne by the UN.[8] In addition, the Security Council should endeavour to ensure that states have recourse to the ICJ to settle their legal disputes.[9] Article 94 further expects the Security Council to assist the prevailing party in seeking its relief as granted by the ICJ when the losing party fails to comply with the judgment of the ICJ.[10] In a nutshell, these Articles all support the argument that the ICJ was envisioned as having and is entitled to have at least some sort of judicial review power over the acts of the other political bodies of the United Nations.
In any event, if the framers did want the ICJ to be powerless for the judicial review purpose despite these provisions, they could probably have inserted unambiguous language to that effect in the Charter. When ambiguous, as here, the question should be resolved by finding €necessary implication€ from construing all of the relevant provisions with the purposes and principles of the organization in mind.
As has been clearly indicated by many examples in both domestic and international governmental structures, there is no inherent obstacle to the exercising by a political organ and a judicial organ of dual jurisdictions over the same issue as long as one organ does not undermine the integrity of the other. In other words, the question should be where the line should be drawn between the authorities of the two organs such that the balance of power between them is maintained. The exact location of the line may differ from organization to organization depending upon the nature of the organization involved, but there must be a line if the organization were to claim its existence as being based on both the law and on legal principles.
[1] Simma, op. cit., n. 71, at 990.
[2] See Article 38 of the ICJ Statute.
[3] Simma, op. cit., n. 71, at 403.
[4] Judge Weeramantry pointed out in his dissenting opinion in the ICJ's decision to reject Libya's application for provisional measures: €[T]he Court must recognize its role as the principal judicial organ of the United Nations charged with the task, inter alia, of deciding in accordance with international law such disputes as are submitted to it. The Court acts as a guardian of the Charter and of international law in international arena, and there is no higher body charged with judicial functions and with the determination of questions of interpretation and application of international law.€
[5] See Article 36 (3) of the Charter.
[6] See Articles 92 and 93 of the Charter.
[7] See Article 4 of the ICJ Statute.
[8] See Article 33 of the ICJ Statute.
[9] See Article 36 (3) of the Charter.
[10] See Article 94 of the Charter.
Lastly, there are many other less visible yet relevant Articles scattered within the Charter that provide helpful guidance. Article 36 (3) provides that in making recommendations, the Security Council €should also take into consideration that legal disputes should as a general matter be referred by the parties to the International Court of Justice.€[5] Article 92 says that the ICJ Statute €forms an integral part of the present Charter€, and Article 93 further mentions that all members of the United Nations become ipso facto parties to the Statute.[6] The judges of the ICJ are elected by joint votes in the General Assembly and the Security Council,[7] and the expenses of the ICJ are borne by the UN.[8] In addition, the Security Council should endeavour to ensure that states have recourse to the ICJ to settle their legal disputes.[9] Article 94 further expects the Security Council to assist the prevailing party in seeking its relief as granted by the ICJ when the losing party fails to comply with the judgment of the ICJ.[10] In a nutshell, these Articles all support the argument that the ICJ was envisioned as having and is entitled to have at least some sort of judicial review power over the acts of the other political bodies of the United Nations.
In any event, if the framers did want the ICJ to be powerless for the judicial review purpose despite these provisions, they could probably have inserted unambiguous language to that effect in the Charter. When ambiguous, as here, the question should be resolved by finding €necessary implication€ from construing all of the relevant provisions with the purposes and principles of the organization in mind.
As has been clearly indicated by many examples in both domestic and international governmental structures, there is no inherent obstacle to the exercising by a political organ and a judicial organ of dual jurisdictions over the same issue as long as one organ does not undermine the integrity of the other. In other words, the question should be where the line should be drawn between the authorities of the two organs such that the balance of power between them is maintained. The exact location of the line may differ from organization to organization depending upon the nature of the organization involved, but there must be a line if the organization were to claim its existence as being based on both the law and on legal principles.
[1] Simma, op. cit., n. 71, at 990.
[2] See Article 38 of the ICJ Statute.
[3] Simma, op. cit., n. 71, at 403.
[4] Judge Weeramantry pointed out in his dissenting opinion in the ICJ's decision to reject Libya's application for provisional measures: €[T]he Court must recognize its role as the principal judicial organ of the United Nations charged with the task, inter alia, of deciding in accordance with international law such disputes as are submitted to it. The Court acts as a guardian of the Charter and of international law in international arena, and there is no higher body charged with judicial functions and with the determination of questions of interpretation and application of international law.€
[5] See Article 36 (3) of the Charter.
[6] See Articles 92 and 93 of the Charter.
[7] See Article 4 of the ICJ Statute.
[8] See Article 33 of the ICJ Statute.
[9] See Article 36 (3) of the Charter.
[10] See Article 94 of the Charter.
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