Today is the day of the United Nations. The 70th anniversary of the official establishment of the UN on October 24th, 1945.
Seventy years ago, the victors of the WWII sought to create a joint text to prevent the reoccurrence of such disasters that cost the lives of 70 million people, by strengthening peace and security. The principles that were first drafted in Malta in 1945, were later turned into the United Nations Charter completed in San Francisco. With the signing of the charter by the founding countries including Turkey, the United Nations was founded on October 24th, 1945.
Since then, the UN has dealt with many problems, sometimes with success, sometimes with failure. However, looking at what has been achieved so far, with all the positive and negative memories, it is clear that the UN is essentially a useful and necessary project. Even though some people point out destructive criticism towards the UN by focusing solely on its mistakes and errors, it would be far wiser to correct its shortcomings and ensure its continued contribution to international peace.
To improve the current functioning of the UN, it is important to make sure that the decisions of the Security Council are opened to legal investigation. As known, the Security Council is the basic decision maker of the UN, made up of 15 member countries. This council makes and implements very important decisions on behalf of the 193 countries of the world with regards to peace and security issues.
It is the Security Council that has the power to make important decisions such as starting military campaigns or applying economic sanctions against a country. In making these decisions, the Council has the right to interpret the content and concepts of the UN Charter in any way it wishes just as it has the power to label regional and international incidents in any way it deems fit.
Furthermore, according to the 25th Article of the UN Charter, Security Council decisions are binding. Indeed, other member countries have to accept and implement the SC decisions. For instance, Turkish law stipulates that Security Council decisions be accepted as law and therefore, it is impossible to claim that those decisions are against the Constitution.
These wide powers vested in the Council can sometimes be used as a tool to protect the five permanent members and as a result, become the source of new international problems.
For instance, the Council decision that allowed the military campaign against Afghanistan in 2001 (on the grounds of its failure to turn over leaders of terrorist organizations), and against Iraq in 2003 (for alleged stocking of weapons of mass destruction), were both highly controversial in terms of international law and led to numerous conflicts, civil wars, the birth of new terrorist organizations and many massacres.
For these reasons, it is imperative that the Security Council, which holds wide powers, that allow it to make decisions against countries that can affect the lives of millions, is subject to some sort of control mechanism.
Indeed, the 2nd Clause of the 24th Article of the Charter reads: ‘In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations’. In other words, the charter obligates the Security Council to act in line with the purposes and principles of the UN and limits its decision powers. Yet, such adherence to these limitations can be ensured only with some manner of oversight.
Despite that, there is nothing in the UN Charter that explicitly allows an investigation mechanism with respect to the Security Council decisions. If the Council was to breach the most basic rules of the law (the prohibition of genocide, the ban on torture, racial discrimination, slavery or the unwarranted use of force), there would be no clear legal resort according to the charter to seek redress for those mistakes.
On the other hand, there is nothing in the UN Charter that forbids the legal oversight of the Security Council’s decisions. Therefore, in line with the principle of ‘anything that is not forbidden is legal’, establishing such an inspection system would not be a violation of the UN Charter.
Indeed, the 96th Article of the Charter includes a remark that could allow for the inspection of the Security Council Decisions through the International Court of Justice, which is essentially the judiciary branch of the UN. The article reads as follows:
“The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.”
The International Court of Justice is one of the six organs of the UN. The Court, an independent organ with 15 judges, looks at the cases brought before it by countries that wish to settle their disputes amicably.
The aforementioned 96th Article of the UN Charter gives the Court the power to submit advisory opinions, which means that the UN Security Council can ensure the legality of any Council decision upon receiving an advisory opinion from the Court for that specific decision.
When the Security Council issues a resolution, the General Council might request an advisory opinion on the resolution from the International Court of Justice (ICJ) within the scope of the 96th Article of the UN Charter. The ICJ might review the conformity of a hypothetical Security Council resolution to the principles and goals of the UN Charter as well as to the legal rules and norms of international law.
There are many examples of this in practice; the International Court of Justice has, from time to time, discussed the resolutions of the Security Council during various cases they’ve heard and made evaluations regarding the legality of these resolutions.
Since the advisory opinions submitted by the ICJ within the scope of the 96th Article are not legally binding, it is not possible for them to quash the resolutions of the Council. However, as the advisory opinion of the ICJ would be showing the way to the international community in regard to the legality of the Security Council’s resolutions and would certainly have an influence over the attitude of the other UN countries regarding that resolution, the Council would most certainly have to behave in a much more responsible, lawful and just manner when making a resolution. That is why it would be quite beneficial to make it routine to allow for the ICJ to perform judicial review over the Security Council's decisions, especially the sanctions decisions of the Council.
Consequently, there is no doubt that having a judicial remedy against the decisions of the Security Council, would be positive contributions to international peace. It would be admirable and judicious of the UN’s Charter to be accountable to such an audit. However, according to the current rules and practices of the UN, change in the way the Security Council operates is unlikely and thus it is possible - and necessary - to use the way shown in the 96th Article of the UN Charter until such change can be put into effect.
Adnan Oktar's piece on EKurd Daily: