Advanced

The Legal Security of the United Nations - Can the International Court of Justice review the decisions of the Security Council?

Palmqvist, Maria (2004)
Department of Law
Abstract
Created in the aftermath of the Second World War the United Nations and its bodies do not represent the world that we live in today. The effectiveness and the usefulness of the organisation have been questioned and the need for a reformation has increased. The distinction between power and authority and the different organs of the UN is difficult to draw. The Security Council has the main responsibility for the maintenance of international peace and security and the International Court of Justice is the principal judicial organ of the UN. These two roles of the organisation can be very complex and hard to separate. The main opinion is that the Security Council works with the political disputes and the International Court of Justice with... (More)
Created in the aftermath of the Second World War the United Nations and its bodies do not represent the world that we live in today. The effectiveness and the usefulness of the organisation have been questioned and the need for a reformation has increased. The distinction between power and authority and the different organs of the UN is difficult to draw. The Security Council has the main responsibility for the maintenance of international peace and security and the International Court of Justice is the principal judicial organ of the UN. These two roles of the organisation can be very complex and hard to separate. The main opinion is that the Security Council works with the political disputes and the International Court of Justice with the judicial, but problems arise when these two disputes cannot be separated and therefore makes it impossible for the organs to solve them accordingly to the opinion of the international community. An example of this is the Lockerbie case, where the United States of America and the United Kingdom brought the case before the Security Council and at the same time Libya complained to the International Court of Justice. The outcome of this case was that the International Court of Justice referred to the resolutions of the Security Council and therefore did not try the case, which leaved a lot of questions unanswered. The texts of the Charter of the UN and of the Statute of the Court give no support for a conclusion that the Court possesses a power of judicial review in general, or a power to supervene the decisions of the SC in particular. The Security Council has the primary responsibility for the maintenance of international peace and security. If the Court could overrule, negate and modify, it would be the Court and not the Council that would exercise the dispositive and hence primary authority. In the meantime, the Court can not review the Council's chapter VII decisions and judicial control of SC resolutions remains unlikely. But the discussions is being raised that these decisions should at least comply with the norms of jus cogens and should not be contrary to the Charter itself. Although it seems possible to conclude that the Court currently possesses at most a limited power of judicial review, there is little doubt that there has been a recent trend in support of increasing such a power. This support is found in the existing case law and in academic commentary. The United Nations needs the International Court of Justice and other organs to increase its possibility to interfere and also adjust the level of power and authority and to be able to create that effective and useful organisation the UN could be. An effective legal review of the decisions maid by the Security Council could be one way to achieve it, but on the other hand it could result in wariness from the Security Council, that could lead to just the opposite result accomplish. (Less)
Please use this url to cite or link to this publication:
author
Palmqvist, Maria
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Folkrätt
language
English
id
1561070
date added to LUP
2010-03-08 15:55:27
date last changed
2010-03-08 15:55:27
@misc{1561070,
  abstract     = {Created in the aftermath of the Second World War the United Nations and its bodies do not represent the world that we live in today. The effectiveness and the usefulness of the organisation have been questioned and the need for a reformation has increased. The distinction between power and authority and the different organs of the UN is difficult to draw. The Security Council has the main responsibility for the maintenance of international peace and security and the International Court of Justice is the principal judicial organ of the UN. These two roles of the organisation can be very complex and hard to separate. The main opinion is that the Security Council works with the political disputes and the International Court of Justice with the judicial, but problems arise when these two disputes cannot be separated and therefore makes it impossible for the organs to solve them accordingly to the opinion of the international community. An example of this is the Lockerbie case, where the United States of America and the United Kingdom brought the case before the Security Council and at the same time Libya complained to the International Court of Justice. The outcome of this case was that the International Court of Justice referred to the resolutions of the Security Council and therefore did not try the case, which leaved a lot of questions unanswered. The texts of the Charter of the UN and of the Statute of the Court give no support for a conclusion that the Court possesses a power of judicial review in general, or a power to supervene the decisions of the SC in particular. The Security Council has the primary responsibility for the maintenance of international peace and security. If the Court could overrule, negate and modify, it would be the Court and not the Council that would exercise the dispositive and hence primary authority. In the meantime, the Court can not review the Council's chapter VII decisions and judicial control of SC resolutions remains unlikely. But the discussions is being raised that these decisions should at least comply with the norms of jus cogens and should not be contrary to the Charter itself. Although it seems possible to conclude that the Court currently possesses at most a limited power of judicial review, there is little doubt that there has been a recent trend in support of increasing such a power. This support is found in the existing case law and in academic commentary. The United Nations needs the International Court of Justice and other organs to increase its possibility to interfere and also adjust the level of power and authority and to be able to create that effective and useful organisation the UN could be. An effective legal review of the decisions maid by the Security Council could be one way to achieve it, but on the other hand it could result in wariness from the Security Council, that could lead to just the opposite result accomplish.},
  author       = {Palmqvist, Maria},
  keyword      = {Folkrätt},
  language     = {eng},
  note         = {Student Paper},
  title        = {The Legal Security of the United Nations - Can the International Court of Justice review the decisions of the Security Council?},
  year         = {2004},
}