POKOJNÉ ŘEŠENÍ SPORŮ V MEZINÁRODNÍM PRÁVU

CHAPTER 5 Peaceful Settlement of Disputes and Preventive Measures Katarína Šmigová

The aim of the chapter is to analyze peaceful settlement of disputes in terms of preventive measures. The article therefore focuses on examining the reports of the UN Secretaries-General which often appear to be a policy statement of the world‘s largest organization whose aim is to maintain international peace and security. Over time, these so-called policy statements have been largely transformed into resolutions of the main UN bodies and their activities, as well as activities of the Member States. Preventive measures have thus gradually become an immanent part of the decision- -making and executive process at multilateral and national level. CHAPTER 6 The Powers of the International Court of Justice for Judicial Review of Legality of the Security Council’s Decisions? Josef Mrázek The chapter relates to the question whether the Security Council (SC) is subject to any limitations in its powers under the Chapter VII. The main subject of this Article is possibility of “judicial review” of the SC acts by the ICJ. The relationship between both principal organs of the UN, the ICJ and SC, is complex and concerns the exercise of the concurrent powers. The powers of the SC under Chapter VII must be exercised consistently with purposes and principles of the UN Charter. Neither the Charter nor the Statute of the ICJ authorizes the ICJ to review the SC resolutions. The ICJ has no explicit authority to declare the SC resolutions as “ultra vires” and invalid. Nevertheless it is clear that the ICJ in several legal cases anticipated some powers of judicial review for itself, mainly in the “Lockerbie” case. The ICJ is not some kind of an “appellate court” but does possess the authority to review SC decisions when considering a legal case. The ICJ is entitled to determine any legal matters properly in accordance with international law. The ICJ is also rendering advisory opinions with no legally binding effects. The SC actually requested an advisory opinion only in one “Namibia” case. The question of whether the ICJ has powers to review the legality of the SC decision still remains highly controversial. For many years it was accepted by international law experts that SC reso- lutions could not be reviewed by the Court. Recently, there seems to be certain shift in opinion towards a view that the ICJ may posses a limited power of judicial review. Only the revision of the Charter would by the clear solution. The ICJ remains powerless to review the SC decisions according the Chapter VII. It seems to be clear that the five permanent SC Members have no interest in expanding the powers of the ICJ.

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