Northern Arizona University/Philosophy of Law/Discussion of Online Texts/Week 13

Cassondra Taylor Critical Question #4

I am referencing the entire UN Charter, in that having been drafted by Eleanor Roosevelt, and modeled after the US constitution it very much reflects US language, culture, history, and understanding, for example “We the people of the United Nations…United for a better world” holds infinitely more meaning for US citizens than it would for a citizen of another country for whom such wording, even though translated into his mother tongue is devoid of its rich historical and cultural quality. I hold that the language of a document is as important in some ways as the intention. It serves to articulate the meaning and intentions of it’s writers and conveys the spirit and attitude of the document. Having said such I wonder how well such a document, written by such a country can convey the sentiments and intentions of other nations, of the world? Is it a function of translation to truly articulate the ideas and attitudes? How closely can that mirror the original thoughts?

I think that within such a body as the United Nations communication is of the utmost importance, wars can be started or averted according to the messages translated an exchanged between diplomats and representatives. Indeed, Lost in Translation has a great deal of significance for UN translators and officials. Therefore, the ideas and the language in which they are communicated within the UN charter is a matter for much consideration. And anyone who has ever tried to read a translation of a work can understand how a few words can change, perhaps not the literal meaning, but the emotion and feeling of a work; which in many ways is more important to the readers understanding of said work.

[ Karlie Knudtsen    CQ 5: Judicial Review in the UN

The article, "Powers of Appreciation": Who is the Ultimate Guardian of UN Legality?” makes three statements causing me to question the legitimacy of any power of judicial review the ICJ may be claiming by its ruling in Libya vs USA. The initial concern raised breeds skepticism as to the whole structure of the UN and its legitimacy.

First, as quoted, “The question now raised by Libya's challenge to the validity of resolution 748 (1992) is whether a decision of the Security Council may override the legal rights of States, and, if so, whether there are any limitations on the power of the Council to characterize a situation as one justifying the making of a decision entailing such consequences. Are there any limits to the Council's powers of appreciation? In the equilibrium of forces underpinning the structure of the United Nations within the evolving international order, is there any conceivable point beyond which a legal issue may properly arise as to the competence of the Security Council to produce such overriding results? If there are any limits, what are those limits and what body, if other than the Security Council, is competent to say what those limits are?” I interpret this locution as an affirmation of the original jurisdiction of the separation of powers structure of the UN with the additional mention that each branch defines its own powers within the scope delegated to it by the UN Charter.

Bring the issue out, the second statement holds that, “ “While the Court has the vocation of applying international law as a universal law, operating both within and outside the United Nations, it is bound to respect, as part of that law, the binding decisions of the Security Council." [FN21] The operative verb is "respect"-not "defer to." The Court's decision, Lachs emphasized, "should not ... be seen as an abdication of the Court's powers." ” Hence, due to the enumerated separate powers within the UN, the ICJ cannot infringe upon decisions within the scope of the Security Council. The problem with this is that not only may the Security Council resolutions conflict with the sovereign power of states and the laws established therein, but the resolutions may also conflict with the purpose of the UN under the UN Charter.  The ability of the Security Council to recommend whatever it feels like appears to be unlimited and without any kind of check or balance by the ICJ. Even though the court may not be abdicating any of its enumerated powers, it certainly is conferring support for an unlimited and unchecked scope of Security Council powers of resolution.

The third statement represents the problem arising from this judgment. It seems that one of the dissenting judges put his/her finger on the situation, saying “in extreme cases, the Court may have to be the last-resort defender of the system's legitimacy if the United Nations is to continue.” Clearly, he/she sees that due to the externally unchecked scope of the Security Council’s resolutions, such resolutions may eventually turn on the system itself, like when a body begins to metabolize itself eventually leading to its death. Therefore, any claim of judicial review being claimed by “respecting” the council’s decisions is illegitimate as it has no efficacy ultimately. With such actual and potential imbalance in the UN separation of powers, none of the branches are on stable ground. This calls into question the legal force of any decision made by any body of the UN.]