International Law in International Organisation - Assignment Example

International Law in International Organisation: Case Study Table of Contents Question 3 Introduction 3 Discussion 4 Conclusion 9 9 Question 2 10Introduction 10 Discussion 11 Conclusion 14 References 16 Question 1: Introduction With a decade passed in the 21st century, an intellectual amateur may perchance question the customary need of the International Court of Justice (ICJ) and its advisory opinion rules (opinion juris), when International Organizations (IOs) with rights of a legal personality have an examined and all-inclusive administrative profiling along with a clear understanding of the humanitarian grounds for sovereign states. Answer to such a query may be found hidden in the cerebral adages of many thinkers in the field of international law; however, in vague. The procession of such vagueness is recognizably rooted in the concept of ICJ and international law, which is evidently different from any national court and which operates in and for the global community, having “no genuinely compulsory jurisdiction”1. The notion becomes apparent with reference to the statement by Greenwood— “Even in the lean years of the 1970’s when the Court heard only a handful of cases, in most of which the respondent boycotted the proceedings, it would have been wrong to dismiss the Court as irrelevant. Its existence as a means for the impartial adjudication of disputes, even if little used, had an effect upon decision-making.”2 From the statement of Greenwood (2011)3 and many others, including Baker (2010)4, Llamzon (2008)5 and Dupuy (1999)6 among others, two concealments become evident — one is the dominant existence of ICJ along with its advisory opinion and the second is its unignorable, although disputed impact on global community. Accordingly, in this thesis, using IOs as a symbolic presentation of global community, an equation indicative of the impact caused by the ICJ and its advisory opinion imposing influences on the debates surrounding approaches on reparations to the legal personality of IOs will be drawn. Discussion Prior to assessing the impacts caused by ICJ advisory opinion concerning reparations on the debates related to the approaches taken by IOs to their legal personality, it is necessary to gain an understanding regarding the roles, responsibilities and obligations of ICJ advisory opinion. As apparent from the elaborations given by Baker7, ICJ is certainly different from any national law, operating independently for the humanitarian interests of the sovereign states. Explained by Powell & Mitchell8, ICJ operates as a mechanism of communication for all countries to settle their disputes and confusions inter alia in a peaceful manner. Undoubtedly, the role played by ICJ holds considerable significance in mitigating international conflicts where national powers are likely to overlap each other and increase volatility within the global community9. Contextually, global community can best be defined in terms of a community of states, involving more than 2,000 IOs, including the United Nations, various regional unions (for example, the Arab Maghreb Union) and specialized bodies relating Non-Governmental Organizations (NGOs), Multinational Companies (MNCs). These IOs are in turn also defined as legal personalities holding rights through global treaties to challenge righteousness of other state(s). ICJ, in this regard, considers the importance of these global community participants on the basis of which, individual human beings participate in international life and shape it accordingly for the betterment of the human kind overall10. With such delegation of responsibilities, expectations from ICJ have also increased manifold. Nevertheless, critics have been arguing on the subject of the power held by ICJ to control the state behavior with effective mechanism in determining the extent of international peace and protection. Based on the same grounds, scholars have criticized the jurisdictional construction followed by ICJ as faulty, emphasizing consent as the preliminary and most important factor in opinion juris concerning reparations in settlement to the debates between IOs. It is in those contexts wherein the ICJ rules anything that is “less than a clear indication of consent” equitable for reparations as it is presumed to confirm solemn risks of non-compliance to the customary legislative norms followed by the advisory opinion11. As advocated by Powell & Mitchell12, with the rising complexities in the power delegation observed amid IOs in the current phenomenon, as compared to the period when ICJ was transformed from Word Court in 1946, internal organization and customary approaches followed by ICJ opinion juris have not changed much. This has resulted in ICJ being underutilized, lessening its influence to practice authoritative control on power disparities and other economic factors shaping the international community and the ways IOs operate today. The impact of such flaws becomes noteworthy in the opinion juris reparations13;14;15;16. Illustratively, with reference to the ruling offered in the landmark case of The Republic of Nicaragua v. The United States of America, the diminishing influence of ICJ and its faulty predictions of the needs as well as vague assumptions to define its opinion juris boundaries in reparations on the conflicts surrounding IOs’ approaches within the global community becomes clear17. In this case, with the rights of a legal personality, Nicaragua alleged the US in ICJ for oil installation attacks, Nicaraguan harbor mining, pressurizing Nicaragua economically and supporting rebels in Nicaragua with military resources. On the other hand, the US, using its “right of collective self-defense” being a legal personality, argued that on finding that the Nicaraguan harbors as well as territories were being used by Nicaraguas Sandinista regime to transport arms to overpower the then government in El Salvador, interfered in the matter18. However, through the Secretary-General of the United Nations, the US had notified that the ICJ would hold no admissibility to disputes involving Central American states in relation to its 1946 consent declaration to the ICJ compulsory jurisdiction. In turn, the US refused its participation in the judicial proceedings following the allegation of Nicaragua, in response to which, reparations were advised by ICJ opinion juris against US’ involvement in conflict with Nicaragua. Furthermore, the US seized ICJ’s decisions and its advisory opinion on reparations, indeed, dictating the diminishing impact of the Court on approaches taken by the legal personalities of IOs19. Again, taking the example of Belgium vs. Spain, involving a MNC as a legal personality, it can be asserted that ICJ’s entrustment of opinion juris stands on the condition that having a ‘violating at issue’ is important for any state to claim reparations against another state in ICJ, which restricted Belgium to enforce the claim in ICJ. However, Belgium was permitted to sue Spain on the grounds of its human rights claims, which were further justified by the opinion juris as erga omnes, and hence, applicable in this context20. While on the other hand, in W Germany v. Denmark, W Germany v. Netherlands, claims put forth by Netherlands and Denmark were rejected on the grounds that West Germany was not bound by the Geneva Convention on the Continental Shelf 1958 Article 6. In reaction to such a verdict, both Netherlands and Denmark counteracted stating that because the Convention was already transformed into a customary international law, it certainly made West Germany, as an IO holding the rights to legal personality, liable in charge with erga omnes benefits to human rights. The juxtaposition of the two conflicting verdicts made by the ICJ proposes a taxonomical effect of its judgment through opinion juris in reparations on the legal personality of the IOs21. Against these pessimistic claims, however, optimists have argued that even though the legal personalities involved in a dispute may never visit the Court (e.g. The Republic of Nicaragua v. The United States of America), the role of ICJ and its advisory opinion in reparations become evident when due attention is provided to the concerns raised amid the IOs in reaction to the judicial proceedings22. With reference to a recent example of a small island named Tuvalu suing the US over climate change responsibilities shared erga omnes by the nation in ICJ, it was reported to attract global attention, forcing many IOs to take precautionary measures towards the issue23. Similarly, opinion juris presented in the case of Legality of the Threat or Use of Nuclear Weapons, the role of ICJ becomes evident to ignite a concern amid the legal personalities in performing their obligations towards the global community24. Conclusion Concerning the above-discussed aspects, it can be argued that the impacts of ICJ advisory opinion on reparations based on conflicts amid legal personality IOs depend on its gap with national laws, where larger gap is likely to result in the non-compliance of the compulsory legislations followed by the Court. On the other hand, its reaction towards human rights violation determines how solemn its impact is not only on one particular IO holding legal personality rights but also to other states. Perhaps, it is the vagueness in the boundary defined and the lack of the compulsory legislative framework followed by the ICJ that its impact on delivering advisory opinion in reparations on the legal personality of IOs becomes disputed in many grounds of the international law. Question 2 Introduction The organizational structure of the United Nations (UN) is rooted on the grounds of six organs, duly authorized to deliver opinion on global issues, which directly relate to human rights with the intention to leverage a balance in the international trade regimes. These six organs constitute the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the International Court of Justice (ICJ) and the Secretariat. While a preliminary understanding of the organizational structure of the UN dialects a prominent structure of the global community, a critical understanding of the subject shall reveal the overlapping semi-jurisdictional and quasi-political ideologies as well as principles of these organs, often raising questions about the power of one organ over reviewing the decisions given by the other(s). In most occurrences, the debates have been concentrated on the role and authorization of the ICJ in reviewing the ruling of other organs in the UN25. It is in such circumstances that comprehending the interplay of organs of the UN becomes crucial when arguing on whether ICJ can or cannot review the verdicts given by other organs of the UN, being itself one of the most powerful, which will form the base of this thesis. Discussion The significance of ICJ in the dictation of the international law standards today is unignorable. It is with the virtue of this particular mechanism that International Organizations (IOs), comprising specialized bodies such as the World Health Organization (WHO), multinationals, sovereign states and other organs of the UN can register or demand for advisory opinion by the ICJ, also symbolized as the World Court. As per the guidelines in Article 96(2) of the UN Charter, specialized agencies and other organs of the UN are bestowed with the authority by the General Assembly to request for advisory opinion on any legal question that might arise in due course of time, within their periphery of operations. Again, Article 65, as included in the revised statute, when implementing Article 96 of the UN Charter, states that ICJ may deliver its decision on reviewing the legal question raised by other organs of the UN on request by the body. However, it is noteworthy in this context that the power of ICJ to review the question raised or decision made by other organs remains restricted to the field of “legal questions”, with no prominent elaboration of its power to review non-legal questions raised by the organs of the UN26. As asserted by Bingbin27, ICJ plays a dual role in the settlement of conflicts between states on legal grounds, and reviewing the legal questions raised by the specialized agencies or organs of the UN. Apparently, although significant but unclear, the principles of international laws as followed by ICJ bind the organ by legality issues, limiting its interference in reviewing other organ’s decisions on non-legal or quasi-legal questions. An evident illustration to the notion can be identified with reference to the recent examples of conflicts and confusions witnessed amid ICJ and the Security Council of the General Assembly, when arguing on the contexts of international security, in keeping with the issue of nuclear threats. The International Court of Justices 1996 Nuclear Weapons Advisory Opinions can be illustrated as a landmark case in determining whether ICJ can review a judgment already delivered by another UN organ, such as the World Health Organization (WHO). Arguing on the stand of WHO in response to the issue concerning legality of the nuclear weapons, Akande28 noted that the conditions pre-supposed to impose effects on the admissibility of ICJ to review the decisions given by other UN organs or opinion demanded by the specialized agencies often become conflicting to each other. This further deliberates criticism in the gaps persistence within the opinion juris of the ICJ. For instance, as argued in Akande29, the opinion of ICJ on WHO’s involvement in determining the legality of nuclear weapons disagreed the phenomenon to fall under the operational tasks of the specialized agency. While on the other hand, the General Assembly also states that any UN organ has the competence to register a plea in lieu of any international issue, concerning the construal of their statute irrespective of how the phenomenon relates to the organ’s operational constructs30. In the similar context, Angehr31 argued that the pattern, in which the ICJ related to the political organs in the UN, can better explain its limits and gaps in reviewing advises or decisions of those organs. In the case of Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, simply addressed as the Wall Opinion, ICJ was observed to defer reviewing the realistic and legal fortitude of political organs, imposing significant risks on the institutional legitimacy of ICJ as well as on the international law regimes32. In this particular case, the construction of a wall in Occupied Palestinian Territory by Israel was heard, first by the Security Council and then by the ICJ. As a plead to review the judgment through ICJ opinion juris, General Assembly further used Article 65 (para. 1) of UN Charter, according to which, organs of the UN are authorized to demand for a review by the ICJ concerning any legal question. However, Israel disputed in disagreement to the legitimacy of ICJ’s involvement in the case as per the request of the General Assembly, arguing as per Article 12 (para. 1) of the Statute. This Statute denotes that in the mean time when Security Council is functioning on the question, being actively involved in the legal affairs within Middle Eastern states and non-states, General Assembly lacks power to request opinion juris by ICJ. Arguments were also raised in relation to the quail-legal and political nature of the question, which again advocates the limited power of ICJ in practicing opinion juris over the decisions of the organs, especially the political UN organs. Correspondingly, acting spontaneously in the absence of requests directed from the Security Council to the ICJ in order to review the judgment, General Assembly was also argued to have acted ultra vires. This in turn advocates the limited power of ICJ to review the decisions made by UN organs, being grounded by various, inconsistent or disagreeing jurisdictions of the UN Charter33;34. Another case exhibiting a similar occurrence of perplexity regarding whether ICJ has the legitimate power to review the decisions of other organs can be found with reference to its opinion juris on Kosovo. In this particular case, the political question of Kosovo’s independence was initially heard and ruled in Security Council, which was later plead for review in ICJ. This further raised arguments on the legitimacy and admissibility of the ICJ to review such a political issue. At later stage of the verdict, the ICJ was observed to be in a position to either defer the review or offer a verdict in opposition to the decision of the Security Council on the question, referring Chapter VII as void, being in infringement to the right of IOs concerning self-determination, and thus, positioning itself as jus cogens35. Conclusion The discussion above depicts many gaps persisting in the alignment of the statutes mentioned in the UN Charter when describing the power of one organ to deliver opinion or review the judgment delivered by other organs in the UN. The issue remains to be a crucial argumentative point in the context of international law, wherein the principles exhibited through the Charter often reside contradictory to each other as in the case of Article 65 and Article 12. The power of ICJ to comment on the decision given by other UN organs also depends on the validity of the raised question, which should be a “legal question” for its legitimate consideration in ICJ opinion juris. The perplexities arising thereon can therefore be argued as factual, demanding for a revision of the statute concerning the stated issue. In this context, it is worth mentioning again that the UN Charter lacks any firm view on the power of ICJ to appraise the decisions given by other UN organs. As quoted by Reinisch36, “the absence of any reference to the ICJ’s competence to act as a constitutional court within the UN, the Court has in some cases reviewed the legality of the acts of UN political organs.” References Akande, D., 1998. The Competence of International Organizations and the Advisory Jurisdiction of the International Court of Justice. European Journal of International Law, Vol. 9, pp. 437-467. Angehr, M., 2009. The International Court of Justice’s Advisory Jurisdiction and the Review of Security Council and General Assembly Resolutions. Northwestern University Law Review, Vol. 103, No. 2, pp. 1006-1036. Baker, R. B., 2010. Customary International Law in the 21st Century: Old Challenges and New Debates. The European Journal of International Law, Vol. 21, No. 1, pp. 173–204. Benvenisti, E., 2005. The Interplay between Actors as a Determinant of the Evolution of Administrative Law in International Institutions. Law and Contemporary Problems, Vol. 68, pp. 319-340. Bingbin, L. U., 2004. Reform of the International Court of Justice – A Jurisdictional Perspective. Perspectives, Vol. 5, No. 2, pp. 1-9. Dupuy, P. M., 1999. The Danger of Fragmentation or Unification of the International Legal System and the International Court of Justice. International Law and Politics, Vol. 31, pp. 791-807. Friedman, L., 2004. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion). Sydney Law Review, Vol. 27, pp. 715-726. Gilmore, G., 1946. The International Court of Justice. Faculty Scholarship Series, Paper 2674. Greenwood, J. C., 2011. The Role of the International Court of Justice in the Global Community. University of California, Davis, Vol. 17.2, pp. 233-252. Habermas, J., 2012. The Crisis of the European Union in the Light of a Constitutionalization of International Law. The European Journal of International Law, Vol. 23, No. 2, pp. 335–348. Heffernan, L., 1998. 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