The Federalist Society

Saying What the Law Is: Arguments for an ICJ That Is Less Deferential to Security Council and General Assembly Resolutions

July 3, 2008

Mark Angehr

The United Nations (UN) system operates differently than the three branches of American government. Its political organs, the Security Council (“Council”) and the General Assembly (“Assembly”), cannot make law. Its judicial organ, the International Court of Justice (ICJ), has no power of full-scale judicial review over the resolutions of the political organs. Instead of checks and balances, the United Nations Charter proposes a system of shared responsibility and common political agenda. Such intra-organizational cooperation may help advance United Nations policy, but it threatens the judicial independence of the ICJ. When the political organs pass resolutions that resemble legislation or contain interpretations of international law, the ICJ cannot maintain its institutional legitimacy without to some extent reviewing these legal interpretations in cases before it. This article explores the legal contours of ICJ review over the factual and legal determinations underlying Council and Assembly resolutions. Th is situation arises when the ICJ must rule, in accordance with international law, on a dispute that the Council or Assembly have already treated in their political processes. As the political organs flex their muscle with quasi-legislative and quasi-judicial resolutions, the ICJ must reassert itself by reviewing the legal and factual determinations underlying those resolutions in the course of deciding its cases....

Saying What the Law Is: Arguments for an ICJ That Is Less Deferential to Security Council and General Assembly Resolutions  


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