CYIL vol. 14 (2023)

PETRA RUFFER LUSTIGOVÁ CYIL 14 (2023) with its function of peaceful settlement of disputes ”, 64 and the Security Council is not bound by them when taking decisions under Chapter VII of the Charter. Similarly, Professor O’Connell affirms that “ the reference to justice and international law is only a reference to the basis of any peaceful settlement… ”. 65 Accordingly, in his Dissenting Opinion in the 1998 Lockerbie Case, President Schwebel stated that the omission of principles of justice and international law in Article 1(1) of the UN Charter, “ was deliberately so provided to ensure the vital duty of preventing and removing threats to and breaches of the peace would not be limited by existing law ”. 66 And last but not least, G. Oosthuisen even claims that “ [t]he effectiveness of the UN would be hindered if principles of justice and international law were to be considered every time the UN is called upon to take ’prompt and effective’ collective measures to maintain international peace and security ”. 67 The Security Council would act in breach of international law when it exercised powers outside of the limits of its competencies, however, this is extremely difficult to imagine, since the Security Council was given by means of the Charter such a wide margin of manoeuvre. This is especially true regarding powers under Chapter VII of the Charter ( Actions with respect to threats to the peace, breaches of the peace, and acts of aggression ), including the determination of “ threat to the peace, breach of the peace, or act of aggression ” in accordance with Article 39. 68 Consequently, this broad discretionary power, which is very political in nature, 69 belongs exclusively to the Security Council and may not be exercised or overruled by any other entity. Security Council decisions regarding determination under Article 39 are final and non reviewable, even by the International Court of Justice. 70 Because “ [n]owhere in the Charter or the ICJ Statute is the Court given any power of general judicial review which would authorize it to pass judgment on questions of Art. 39 determination ”. 71 Judge Weeramantry also stated in his Dissenting Opinion in the Lockerbie Case that “ the determination under Article 39 … is one entirely with the discretion of the Council… [T]he Council and no other is the judge of the existence of the state of affairs which brings Chapter VII into operation ”. 72 66 Lockerbie Case, Question of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie ( Libya v United Kingdom ; Libya v United States of America ), Preliminary Objections, Judgment (1998). See also , OOSTHUIZEN, G. H. Playing the Devil’s Advocate: The United Nations Security Council is Unbound by Law, 12 LJIL , 1999, p. 553. 67 Oosthuizen, supra note 66 , p. 553. 68 Article 39 of the UN Charter : The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. 69 LOBEL, J. & RATNER, M., Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease Fires and the Iraqi Inspection Regime, 93 AJIL, 1999, p. 126, note 11. 70 Although the UN Charter is often compared to a ‘world’ constitution’, it lacks a system of checks and balances that is built into most national constitutions. Instead, the UN was formed as a hierarchical collective security scheme with the Council at its apex. ALVAREZ, J. E., Judging the Security Council, 90 AJIL, 1996, p. 2. The ICJ and the Security Council are institutionally equal to one another. Neither is in a position of hierarchical superiority or subordination nor is either bestowed, by the UN Charter, powers of review over the other. 71 See , e.g., GILL, T., D. Legal and Some Political Limitations on the Power of the UN Security Council to Exercise its Enforcement Powers under Chapter VII of the Charter, 26 NYIL , 1995, p. 117. 72 Lockerbie Case (Question of Interpretation of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie, Provisional Measures, Order of 14 April 1992), Dissenting Opinion of Judge Weeramantry, ICJ Reports (1992), p. 176. 64 Gowlland-Debbas, supra note 2 , p. 90. 65 O’Connell, supra note 1 , pp. 56–57.

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