THE EUROPEAN UNION AND THE EUROPEAN COURT OF JUSTICE

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CHAPTER 3 THE UNITED NATIONS AND THE INTERNATIONAL COURT OF JUSTICE

Introduction

This chapter discusses the United Nations and its role in the development of general principles of international law which, as we have noted, the Tribunal is mandated to apply as a source of law. Although the institutional arrangements in the UN are discussed, the main focus of the study is the International Court of Justice (ICJ) which is the principal judicial organ of the UN539. The ICJ is discussed with specific reference to the areas of our research namely, access to the court, basis of jurisdiction (including its advisory jurisdiction), sources of law, and methods of enforcing judgments of that court. Particular emphasis will be placed on areas where the jurisprudence of the ICJ is likely to be of use to the Tribunal. These areas include exhaustion of domestic remedies as a precondition to exercise of diplomatic protection, sources of law used by the ICJ and the advisory opinions jurisdiction of the ICJ. Where appropriate comparisons are made with the relevant institutional arrangements and treaty provisions of SADC to give a clear perspective of how the Tribunal could deal with similar issues.

UN Institutions

The UN is the world’s largest intergovernmental organisation which consists of virtually all the states on earth540. It was established by the Charter of the United Nations which was signed at San Francisco, USA on 26 June 1945. The main purposes of the UN are the maintenance of international peace and security through the taking of effective measures to prevent or remove breaches of peace and suppress acts of aggression, and to bring about by peaceful means, and in conformity with principles of justice and international law, the settlement of international disputes, the development of friendly relations among nations based on the principles of equal rights and self-determination of peoples, the achievement of international cooperation in solving international problems of an economic, social, cultural or humanitarian character and promoting respect for human rights and fundamental freedoms without discrimination based on race, sex, language or religion541. To achieve its objectives, the UN and its member states shall act in accordance with the principles of sovereign equality of all members, fulfillment of assumed obligations in good faith, pacific settlement of disputes, refraining from the use of force or the threat of use of force against the integrity of other states and rendering of assistance to the UN when action is taken in accordance with the Charter542. States which are not member states of the UN are expected to act in accordance with the principles contained in the Charter “so far as may be necessary for the maintenance of international peace and security”543. The UN is prohibited from interfering in the domestic affairs of member states subject to the application of the provisions of the Charter authorizing the taking of enforcement action544.
Membership of the UN is open to the original member states and subsequently to all peace loving states which undertake to abide by the obligations contained in the Charter545. Membership of a state against whom enforcement action is being taken by the UN may be suspended by the General Assembly on recommendation from the Security Council, while in extreme cases a member state which persistently violates the principles contained in the Charter may be expelled by the General Assembly on recommendation from the Security Council546.
The main institutions of the UN are the General Assembly (GA), the Security Council (SC), the International Court of Justice (ICJ), the Secretariat and the Economic and Social Council547. Other subsidiary organs may be established under the Charter and the UN has established numerous other specialized organs falling under the auspices of the UN as well as other semi-autonomous institutions which are functionally linked to the UN548. In this chapter I consider the main political organs of the UN being the GA, SC and Secretariat, and the ICJ which is the main focus of this comparative study.
 

General Assembly549

The GA consists of all the members of the UN although each member state shall have no more than five representatives in the GA550. The GA could be regarded as the “parliament” of the UN although it lacks an essential feature of traditional parliaments namely the law-making function. The GA has no specific equivalent in the SADC structures. Its nearest counterpart is the SADC Summit which consists of all heads of state or government of member states but functionally there are huge differences. The Summit can make SADC laws and take decisions which are legally binding things which the GA is unable to do. However, the GA is empowered to discuss any questions or any matter within the scope of the Charter or relating to any organ of the UN and to that end it may make recommendations to the member states or the SC on the questions or matters discussed551. The GA may, in general, consider principles of co-operation in the maintenance of international peace and security which include issues of disarmament and control of armaments and again to that end it may make recommendations to member states and the SC552. In addition, the GA may discuss any question relating to the maintenance of international peace and security brought to it by a member state, the SC or by a non-member state and again to that end it may make recommendations to the member state, SC or non-member state553. If an issue -raised before the GA requires “action”, the GA shall refer the matter to the SC554. Apart from matters relating to the maintenance of international peace and security, the GA is also charged with the responsibility of initiating studies and making recommendations aimed at promoting international co-operation in politics and “encouraging the progressive development of international law and its codification”555. Further, the GA shall initiate studies and make recommendations to promote international co-operation in socio-economic, cultural, educational and health fields and assisting in the attainment of human rights and fundamental freedoms for all without discrimination based on race, sex, language or religion556. Under Article 14 of the UN Charter, the GA may, subject to Article 12 (which precludes the GA from making a recommendation on a matter being dealt with by the SC), recommend measures for the peaceful adjustment of any situation which is likely to impair the general welfare or friendly relations among nations. If any situation is “likely to endanger international peace and security,” the GA may call the attention of the SC to that situation557. It must be emphasized that the GA is not a legislative body of the UN and as such it has no law-making functions but, as we shall see, its decisions or resolutions, as they are commonly called, have largely contributed to the development of international law in general, and of law by the ICJ in particular.
Each member state has one vote in the GA558. Decisions on important questions are decided by a two-thirds majority of members present and voting, and these include recommendations relating to the maintenance of peace, election of non-permanent members of the SC, election of members of the Economic and Social Council, the admission, suspension and expulsion of members and budgetary matters559. Decisions on other questions are decided by a majority of members present and voting560, but since most resolutions of the GA fall under “important questions” in practice most GA resolutions are adopted by two-thirds majority.
GA resolutions on its internal management such as admission, suspension and expulsion of members and the budget are legally binding, but resolutions addressed to members on matters affecting the maintenance of international peace and settlement of disputes are not legally binding561.
While not legally binding, the political weight of the latter resolutions can be quite effective as can be demonstrated by numerous resolutions against apartheid562 as previously practiced in South Africa which eventually led to its abandonment in the early nineties. GA resolutions have a number of legal consequences563. According to Dugard first, they may provide legal authorization for states to engage in action which might otherwise be illegal564. Dugard 565 argues that “if economic intervention is considered illegal, then the numerous GA resolutions calling for economic sanctions against SA would have violated international law but the actions could be justified on the strength of the resolutions.” Secondly, according to Dugard “if repeated frequently, the resolutions may acquire the force of customary law” and as such “the norms of non-discrimination, outlawing of apartheid and colonialism fall under this category”566. Thirdly, resolutions must be considered in good faith with a view to implementation. Failure to do this may result in serious repercussions for the defaulting state567. In the case of South Africa, repeated resolutions of the GA condemning its policies and its occupation of South West Africa led to the imposition of sanctions against it.
For purposes of this study the standing of the GA before the ICJ is relevant. The GA has no standing in contentious proceedings before the ICJ which is essentially a court for states. However, the GA is authorised to invoke the advisory opinion jurisdiction of the ICJ, or to authorise organs of the UN to obtain such advice568. In addition, the Charter does not envisage a situation where decisions of the GA can be subjected to review by the ICJ. This is understandable having regard to the fact that its decisions do not bind member states except on matters of internal management.

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The Security Council569

The SC is composed of fifteen members of the UN; five permanent members, France, the United States of America, the United Kingdom, China and Russia; and ten non-permanent members elected by the GA for a term of two years570. Each member state shall be represented by one representative571. The establishment of the SC within the UN system was meant to ensure prompt and effective action on the part of the UN which action cannot otherwise be taken timeously by a large body such as the GA. Members of the UN confer on the SC “primary responsibility for the maintenance of peace and security” and authorise the SC to act on their behalf572. The SC can be regarded as the executive body of the UN with primary responsibility for the maintenance of international peace573. Functionally, the SC can be compared with the SADC Organ on Politics, Defence and Security which constitutes the institutional framework by which SADC states coordinate their policies and activities in areas of politics, defence and security574.
Member states of the UN agree to accept and carry out decisions of the SC and to this extent it can be said that decisions of the SC are binding on states575. Each member of the SC has one vote and decisions of the SC on procedural matters are by affirmative vote of nine members576. Decisions of the SC “on all other matters shall be by an affirmative vote of nine members including the concurring votes of all the permanent members”577. The powers and functions of the SC are further elaborated in Chapters VI and VII of the UN Charter and these are considered below.

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Chapter VI

Article 33 of the UN Charter obliges parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, to have recourse to pacific means of settlement of disputes such as negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement or resort to regional bodies or arrangements578. The SC may call upon the parties to a dispute to settle the dispute through pacific means. Article 34 of the UN Charter empowers the SC to “investigate” any dispute or situation which might create international friction or give rise to a dispute in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security. A dispute of the situation envisaged in Article 34 may be brought to the attention of the SC or GA by a member or non-member of the UN579.
Where a dispute is referred to it or a situation is drawn to its attention under Article 34, the SC may “recommend appropriate procedures or methods of adjustment” of the dispute580. It has been argued that the resolutions of the SC made under Chapter VI have the same status as GA resolutions hence Article 25 which obliges member states to carry out decisions of the SC as opposed to recommendations, does not apply to recommendations made under Chapter VI581.

Declaration
Abbreviations/acronyms
Summary of thesis
Chapter 1 INTRODUCTION
1.1 Preliminary
1.2 Selected areas of study
1.3 Summary of contents
1.4 Overview of international settlement of disputes
1.5 Resolution of disputes in SADC
Chapter 2 SADC AND THE SADC TRIBUNAL
2.1 Scope and purpose of SADC Treaty
2.2 SADC Institutions
2.3 The SADC Tribunal
2.4 Parties (access to the Tribunal)
2.5 Jurisdiction of the Tribunal
2.6 Sources of law for the Tribunal
2.7 Enforcement
2.8 The Tribunal and other African Courts
Chapter 3 THE UNITED NATIONS AND THE INTERNATIONAL COURT OF JUSTICE
3.1 Introduction
3.2 UN Institutions
3.3 The International Court of Justice
3.4 Parties (access to the ICJ)
3.5 Jurisdiction of the ICJ
3.6 Advisory jurisdiction
3.7 Interim measures of protection
3.8 Sources of law for to ICJ
3.9 Enforcement
Chapter 4 THE EUROPEAN UNION AND THE EUROPEAN COURT OF JUSTICE
4.1 Introduction
4.2 History and nature of the EU legal order
4.3 EU Institutions
4.4 The decision-making process
4.5 The European Court of Justice
4.6 Parties (access to the ECJ)
4.7 Jurisdiction of the ECJ
4.8 Sources of EU law
4.9 Development of law by the European Court of Justice
4.10 EU substantive law: Free movement of goods
4.11 Enforcement
Chapter 5 LESSONS FOR THE SADC TRIBUNAL
5.1 General
5.2 Parties (access to the Tribunal)
5.3 Jurisdiction of the Tribunal
5.4 Sources of law
5.5 Enforcement
Appendix: Bibliography
List of cases
List of legal instruments
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THE SADC TRIBUNAL AND THE JUDICIAL SETTLEMENT OF INTERNATIONAL DISPUTES

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