ANÁLISIS E INTERPRETACIÓN DE ESTADOS FINANCIEROS

Beginning after the end of the cold war in the 1990s the UNSC which had hitherto remained deadlocked over key issues of international security because of the ongoing bloc confrontation became more active in adopting resolutions aimed at upholding respectively restoring international peace.

136

BeckOK GG/Hellermann GG Art. 37 Rn. 13

137

Von Mangoldt, H., Klein, F., & Starck, C. (2010). Kommentar zum Grundgesetz, Bd. 2. Aufl. München. Page 1018 138 ibid. 139 ibid. 140 ibid. Art. 37 Rn. 8-8.4

The increased UNSC activities had serious repercussions for the constitutional nature of the United Nations. The question arose as to who would be the ultimate guardian of UN ´law´141. According to Akande the question as to whether the ICJ is entitled to declare not applicable acts adopted by the UNSC is of utmost relevance. Judicial review into the substance of UNSC acts would be tantamount to a far reaching constitutionalization and legalization of the international system142.

The UN Charter does not provide for an explicit hierarchy of the two principal organs of the UN. Famously in the Nicaragua Case the ICJ opined that different from the

relationship between the UNSC and the UNGA the relationship between the UNSC and the ICJ does not provide for a clear demarcation of competences. Particularly the UNSC would exercise political functions whereas the ICJ would remain limited to judicial questions143.

Whereas this assertion of the ICJ remained without real conflict between itself and the UNSC the Lockerbie case gave real substance to the potential clash of the two UN organs144.The competences of the UNSC find their legal limits in the UN Charter. In

accordance with the prevailing legal view the principle of interpreting international treaties on the basis of the original intent of the parties provides some clarity on what the UNSC was mandated to do.

At Dumbarton Oaks several states which were to become signatories to the UN Charter expressed their concerns with the lack of codified legal limits to the powers of the UNSC. However the UNSC finds some legal limits to is competences in Art.24 UN Charter which mandates it to act in accordance with the principles of the Charter145.

A more realist approach towards the competences of the UNSC has been suggested by Kelsen who argued that the supreme mandate of the UNSC would be to uphold

international peace as opposed to international law which he does not regard as identical. In fact rather than being subject to law the UNSC could be considered a maker of law though only in limited situations146. Beside being bound by the UN Charter the UNSC also seems to be bound by other sources of international law.

International jus cogens are those norms of the international order that are found on top of the hierarchy of international norms hence UNSC decisions violating jus cogens would be without effect147. In particular Bosnia argued in the Bosnia Genocide Convention case that the UNSC decision to impose an arms-embargo on Bosnia would be tantamount to the UNSC assisting in the commission of genocide in Bosnia148. This line of reasoning resonated with some of the judges as the ICJ as well as The Organization of Islamic States and a few other countries. Consequently those states which regarded the arms embargo as illegal continued their deliveries of arms to Bosnia.

141

Akande, The International Court of Justice and the Security Council: Is There Room for Judicial Control of Decisions of the Political Organs of the United Nations?. Page 309/310

142 ibid. Page 312 143 ibid. Page 313 144 ibid. Page 314 145 ibid. Page 315/316 146 ibid. Page 318 147 ibid. Page 322 148 ibid. Page 322

Another limitation to the UNSC competences may be found in international human rights law the most important source of which being the international bill of human rights149. Indeed the UNSC has for example refrained from taking such measures to uphold

international peace that would grossly violate human rights such as starving people of particular countries to death150.

Having found out that indeed the UNSC is subject to international law and in its actions is bound by a variety of sources of international law and that clear demarcation lines between the powers of the UNSC and the ICJ have not been codified leads me to believe that the United Nations very much is a heterarchical legal system where both ICJ and UNSC refrain from ceding to the other the ultimate competence of who is to act in which situations. Much as in the EU system ´sovereignty´ seems to be legally vested with both the UNSC and the ICJ.

Importantly the ICJ never acts on its own initiative but always is called upon to act. Wherever states disagree on the interpretation or applicability of international law including UNSC resolutions as in the Lockerbie and Bosnia cases the ICJ will give an advisory ruling. Given the ICJ reserves a right to declare not applicable decisions made by the UNSC raises the question of what legal consequences such a declaration of no applicability would actually have.

Accordingly Art.59 of the statute of the court provides for binding force only in the states party to the dispute and only for the case in question. An act adopted by the UNSC can not be declared void151.

Over the recent years the UNSC has been challenged ever more not only by the ICJ but notably also the Court of Justice of the European Union. In the Kadi case the CJEU was asked in a legal procedure brought forward by Mr. Kadi to annul Council Regulation (EC) No 881/2002 which was designed to implement UNSC Resolution 1267 which provided for the freeze of assets of Mr. Kadi. The CJEU overruled the General Court and declared Council Regulation (EC) No 881/2002 to be incompatible with the constitutional foundation of the EU part of which are human rights. Explicitly the CJEU argued that even though UNSC

resolutions enjoy supremacy in the EU legal order this supremacy is only of a relative nature and finds its limits in the constitutional principles of the EU.

This judgement also served to show that the obligation of the UNSC to abide by human rights standards is of real substance and if regional players such as the EU deem it to be acting contrarily to this principle the EU reserves for itself the right not to apply the UNSC resolution in question..

Together with the opposition to the arms embargo by The Organisation of Islamic States in the Bosnia case this might give rise to the assumption that states or regional organisations do in fact check the legality of UNSC resolutions before applying them.

For me all these instances serve to show that rather than being a fully fledged hierarchical legal system the exact competences of the UNSC and the potential for judicial review remain very much uncharted territory and subject to intense political and legal negotiations.