Tu Globalista: Lo que sucede en el mundo.

I read with close attention the blog post by Jesse Lempel hosted in EJIL: Talk! His core argument is that the ICJ is precluded from issuing provisional measures due to the right of Israel’s self-defense under Article 51 of the UN Charter.

Article 51 of the UN Charter is as follows:

«Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations until the Security Council has taken measures necessary to maintain international peace and security. Members’ measures to exercise this right of self-defense shall be immediately reported to the Security Council. They shall not affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary to maintain or restore international peace and security.»

The plausible argument by Lempel raises the question of whether the UN Charter is above the ICJ Statute. If so, then in the case that there are contradictions between the UN Charter and the ICJ Statute, the issue should be resolved in the benefit of the UN Charter rather than the ICJ Statute.

However, Lempel failed to recognize the rules upon which the Court functions, in the sense that it has, to this day, four layers of legal texts: (1) the UN Charter; (2) the Statute of the ICJ; (3) the Rules of Court; and (4) the Practice Directions of the Court.

The UN Charter determines issues of general interests for the UN and the UN members; the Statute contains the most essential rules for its functioning; the Rules of the Court attend mainly to procedural matters, and Practice Directions aim to solve practical problems at the end of the parties.

However, Article 103 of the UN Charter does not dictate any type of hierarchy between the UN Charter and the ICJ Statute, in other words, article 103 is not a rule of hierarchy, it does in fact, article 103 prevent to create contradictions between the obligations under the UN and other international agreements

Article 103: «In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.»

However, and this goes into the crux of the issue. Is the ICJ Statute a separate agreement to the UN Charter? The answer is a categorical no. This is because the ICJ Statute forms an integral part of the UN Charter, this is by virtue of Article 92 of the said Charter:

«The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.«

Also, article 93 (1) of the UN Charter establishes that parties to the UN are automatically parties to the Statute of the ICJ

«All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice.»

If we follow Article 103 as to the conflict provision. Then such an article extends to the primary law of the Charter and the Statute of the ICJ and also to secondary laws derived from the primary rules, that is, decisions taken by organs on the basis of the UN Charter. In other words, if the Security Council acts by virtue of the UN Charter and has precedence over obligations born under another treaty that is not the UN Charter, in the same vein, and given that the ICJ is on an equal footing as the Security Council as an organ of the UN by virtue of Article 7 of the UN Charter, then any decision taken by the ICJ, which includes provisional measures, means that such decision has precedence over obligations arising under another agreement outside the UN Charter and the ICJ Statute, that is, if there is a decision by the ICC of not prosecuting for genocide, the ICJ can still hold its jurisdiction.

Now, could it be the case that there is a contradiction between Article 51 of the UN Charter on self-defense and the powers of the ICJ to issue provisional measures? The answer is no. Why? Because the Statute of the ICJ and the UN Charter do not contradict themselves. And if there is a possible contradiction, such should be resolved under the view of principles of international law on lex specialis, the issuance of provisional measures by the Court in this case takes precedence over the UN Charter since provisional measures are lex specialis; hence, even if there is no formal hierarchy between the UN Charter and the Statute, in this case, the power to determine provisional measures is under the lex specialis of the Statute; hence, it does have the power, notwithstanding allegations of self-defense.

To close the argument. Art. 41 of the Statute of the Court has the «power» to order provisional measures, in a sense, such power is not dependant on any condition.

Art. 41 of the Statute of the ICJ:

«1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.»