I rapporti tra la Corte internazionale di giustizia e il Consiglio di sicurezza

The relationships between the International Court of Justice and the Security Council is one of the most sensitive and problematic concerning the UN system. The book consists of four parts. The analysis carried out in the first three parts of the monograph about the definition of the relationships between the SC and the ICJ aims at a description de lege lata of the functioning of the UN system. From such a reconstruction it has emerged that the relationships between those organs, lacking a detailed and comprehensive (if not with regards to few aspects which in any case remain very limited) regulation under the relevant normative instruments (UN Charter and ICJ Statute), are governed by some fundamental principles, such as the duty of mutual assistance, the reciprocal respect of their respective competences and activities, the protection of integrity of the judicial function, the efficiency of the World Organization in the maintenance of international peace and security or, more properly, the best combination between them, as those interests are equally essential (but potentially conflicting) for the correct and balanced functioning of the UN system. The reference to those criteria has lead us to identify two main configurations of the relationships at issue, respectively in terms of coordination of the functions assigned to the two organs, and of ex post control on the activity of the SC by the ICJ. As to the first, our position is that the SC and the ICJ are independent from each other in the exercise of their respective competences. The principles of lis pendens, connexity and res judicata are not applicable to the relationships between them. The distinction between ‘political’ and ‘legal’ issues and, consequently, between ‘justiciable’ and ‘non justiciable’ disputes has been strongly rejected, including by the Court itself. The relationship between the SC and the ICJ is hence mainly characterized by functional parallelism: in the exercise of their competences both organs must act in consideration of each other's interest, and not impede each other in their action. As far as the second model is concerned, there exists safer ground, though not devoid of controversy, for the ICJ to embark on judicial review either in consultative or in contentious cases: i.e. ‘in the exercise of its judicial function’. The proposed method of judicial review must however ensure both the legitimacy and the efficiency of the political organ and strengthen, not weaken, the United Nations’ role in the maintenance of international peace and security. The SC is certainly a political organ adopting decisions according to political criteria. However, its action would lose any credibility if it were arbitrary and totally deprived of a legal basis. To reinforce judicial review is thus to reinforce the UN’s effectiveness. That is why, in a perspective de lege ferenda, the international judicial review mechanism should be carefully developed and thoroughly regulated. Moreover, legal certainty would be essential in order to prevent other international courts and tribunals from adopting incompatible approaches with regard to matters concerning the legality of the SC’s coercive measures. The fourth part of the monograph is devoted to the assessment of the relationship between the two UN organs within the field of State responsibility, with special attention to the role that the Court and the Council are already entitled to carry out de lege lata as far as the reaction to the most serious violations of norms protecting the collective interests of the international community are concerned, and to the introduction (in a perspective of progressive development of international law) of new mechanisms and suitable procedures to take advantage of their respective competences and to better coordinate their activities within that field. In such a context, our main objective was to verify the existence of means of preventive legal control which would provide an authoritative and objective evaluation of the subsistence of all the factual and legal elements which may allow States to act or react, in the name and on behalf of the international community as a whole, for the protection of its fundamental values. At least for the moment, the original proposals made on those points inside the ILC in order to entrust the UN organs with the power of preventive legal control has been set aside, because of the complexity of the issues they would involve. However, on this point the debate, either in the ILC and in the doctrine, does not seem to have reached shared solutions. The issue, therefore, can be considered still substantially open and must be carefully considered. The analysis begins with the examination of the specific features of the legal regime protecting the collective interests of the international community and continues by scrutinizing the principal results which have been achieved on those aspects by the ILC during the codification of the matter relating to State responsibility (Chapter XII); it then addresses the debate concerning the involvement of UN organs in the questions concerning reactions to the most serious breaches by critically scrutinizing the proposals and the suggestions made by the Special rapporteurs of the ILC and the discussions they have raised; it confirms the current relevance of the topic by focusing on some proposals which advocate the involvement of the SC and the ICJ into the mechanism that triggers the jurisdiction of the International Criminal Court on the crime of aggression (Chapter XIV); and in fine it verifies, on the basis of a careful review of its jurisprudence, the scope of ICJ potential jurisdiction in matters concerning the protection of the collective values of the international community as a whole and the limits which actually impede a more useful utilization of the Court within this field. The analysis carried out in this phase of the study has shown that neither the ICJ nor the SC, although they represent the most suitable organs to fulfil the function of controlling States reactions to international crimes, cannot effectively accomplish such tasks in an independent way. In this perspective, the Council seems to be the better interpreter of the views of the most powerful social forces in the international community, i.e. the only ones that can assume, because of their huge political, economic and military weight, the task to concretely defend the fundamental values of the international community. Nevertheless, it is well-known that its recent and unprecedented activism is widely criticized as too selective and too consistent with the priorities of the Big Powers. At the same time, the unwillingness and inability of the UN member states to agree on a reform of the Council's membership and voting procedures increasingly casts doubt upon the legitimacy of a body the UN Charter established as the primary guardian of international peace and security. For this reason it appears ineluctable, especially because of the progressive emergence of an unique hegemonic power in the position to influence and lead the entire globalization process, to confer to the ICJ, as guarantor of the legality within the international legal system, more incisive powers and functions in matters related to State responsibility for serious breaches undermining the essential interests of the international community in order to counterbalance the powers of the SC or, more precisely, of the powerful States which could (as recent practice clearly testifies) use surreptitiously the Council as an instrument for the realization of their own specific interests. The direct involvement of the Court in the management of those situations would concur to reduce the risk that serious violations of international law will remain without juridical consequences, at least in the hypotheses in which States holding a great political weight commit them, relying on an immunity that in more than a circumstance has revealed to be de facto absolute. The study carried out in the fourth part has allowed us to exemplify some models of concurrent action of the two organs within the field of the protection of the essential interests of the international community which, even if still in an imperfect way and with only partial consequences, tend to realize new collective forms of guarantees for States’ common interests, by organizing State reactions against the most serious breaches on behalf of the international community as a whole. These models are still incomplete and precarious and represents for the time being only some weak trends. Recourse to the Court has the obvious advantage to place the examination of the issues concerning the protection of collective interests at an appropriate legal level, and at the same time it provides a more objective and neutral treatment of the interests belonging to the concerned parties. Nevertheless, the problem is that the rules governing Court proceedings are conceived mainly to settle disputes of a strictly bilateral nature. Those rules raise many complex problems as regard to the possibility to profitably utilize jurisdictional means also to solve issues of general interest. At the beginning of the 21st century the dilemma faced by the United Nations Organization and the entire international community lies in the inability to reconcile the structural realities of power politics in a unipolar world within the requirements of the international rule of law. A revision of the UN system should not set aside the exigencies for a more active role of the ICJ and a greater balance and constructive cooperation between the latter and the political organs. On the contrary, it should take carefully into account the problem of finding a way to modify and enlarge the scope of the jurisdiction assigned to the primary judicial organ in order to improve its contribution to the protection of the values belonging to the whole international society.