Gewaltenteilung im Völkerrecht? Zur Frage der rechtlichen Bindung und richterlichen Kontrolle des Sicherheitsrates

Since the end of the Cold War, even more so since the events of 11 September 2001, the United Nations Security Council has increasingly acted as a global quasi-legislator. It sets, in the form of Resolutions, norms which are legally addressed to the Member States but which require national governments to enact and implement laws of applicability to private individuals, often prescribing in detail what domestic lawmakers are supposed to decree with little or no scope for national discretion. The Security Council's Resolutions ordering the freezing of bank accounts and other financial assets of individually named suspected terrorists are the most controversial and practically relevant example. These acts have, in the past, shown severe deficiencies with respect to rule of law, abridging procedural rights of suspects in a manner which most national constitutions would be unwilling to accept if attempted by autonomous domestic legislation. The paper, therefore, raises two closely related yet conceptually distinct questions. Firstly, it asks whether the Security Council is restricted in its activities by any legally binding norms which, hierarchically, rank above its Resolutions and which the latter must therefore comply with. If this is answered in the affirmative, the second question follows by necessity, namely, whether the Security Council is subject to any form of judicial review; in other words, whether a procedure exists by which its Resolutions may be scrutinised by an independent body against the yardsticks of these norms and struck down as void or inapplicable in case of incompatibility. The answers found by this paper may be summarised as follows. The Security Council is fully bound by the United Nations Charter and the body of international jus cogens, but not by any particular international human rights treaty. In addition, the Charter leaves a great – but not unlimited – deal of discretion to the Council in choosing whether to act and which actions to take. As for judicial review, the paper submits the view that, under public international law as it stands today, there is no court or tribunal with the power to annul a Security Council Resolution. Attempts in scholarly writing to derive such a jurisdiction from precedents, especially of the ICJ, are not convincing. Consequently, the Council itself is the final arbiter of the legality of its own actions. Following the principle of dualism in international law, it is, however, possible that domestic courts annul a national implementing measure of a Council Resolution for violation of the national constitution. The potential for conflict between domestic and international law which ensues can only be reduced by mutual respect, in both spheres of law, for the other sphere's concerns.