Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
ABSTRACT
This paper seeks to explore the legal and statutory foundations of the Monitoring Group on
Somalia and Eritreas, as well as the UN Security Councils power and authority, to compel Facebook to
disclose its users information. Said power and authority will then be pit against the Facebook users
human right to privacy as protected by Article 12 of the Universal Declaration of Human Rights and the
Facebook users right to privacy arising from contract (Facebook Data Policy and User Agreement). This
paper also concerns itself with possible restrictions on the seemingly unbridled Chapter VII powers of the
UN Security Council to invade individuals privacy, particularly those of Facebook and its users,
reminiscent of the omnipresence and omnipotence of Big Brother in George Orwelles novel 1984.
The position is taken that the UN Charters purposes and principles serve as the limiters on the
Chapter VII powers of the UN Security Council. Said purposes and principles of the UN Charter embrace
international law as a whole, including the existing customary norms in general international law which
the Universal Declaration of Human Rights forms part of. By this reasoning, the Universal Declaration of
Human Rights is part of the purposes and principles of the UN Charter from which the UN Security
Council cannot derogate. Thus, Article 12 of the Universal Declaration of Human Rights which contains
the human right of persons to be protected against arbitrary interference in their privacy can be invoked to
limit the UN Security Councils Chapter VII powers. As to who can enforce said restrictions, this paper
submits that it is the International Court of Justice with its implied, but limited, power of judicial review as
could be gleaned from the rulings in the Lockerbie and Namibia decisions.
Big Brother is a fictional character breathed to life by George Orwell in his novel Nineteen EightyFour. Big Brother is the dictator of a fictional society wherein all persons are under complete and unhindered
surveillance by the totalitarian authorities. Since the novels release, the term Big Brother has successfully
permeated the English lexicon as a synonym for the abuse of government power especially those related to mass
surveillance.
TABLE OF CONTENTS
I.
II.
1
3
3
5
9
9
9
10
12
14
15
18
20
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27
Security Council Resolution 1744 dated February 2007 amended the scope of the arms
embargo and limited the embargo to non-state actors. This means that the supply of weapons and
military equipment intended solely for the purpose of helping develop Somali security sector
institutions is allowed subject to some requirements such as notice to the sanctions committee on
Somalia. Come November 2008, Security Council Resolution 1844 was issued. Said resolution
amended the arms embargo to include target entities that violate the arms embargo or obstruct the
delivery of any kind of humanitarian assistance to or in Somalia.
3
Yahoo News, UN experts slam Facebook for Somalia sanctions silence at
http://ph.news.yahoo.com/un-experts-slam-facebook-somalia-sanctions-silence-191438665.html (last
visited Jan. 20, 2014)
4
Id.
1
The UN Security Council is one of the six primary organs of the United Nations6
and as such derives its powers and authority from the UN Charter and norms of jus
cogens. Under the UN Charter, the UN Security Councils primary responsibility is the
maintenance of international peace and security. Article 39, Chapter VII of the UN
Charter in particular gives the Security Council the discretion in the threshold
determination of the existence of a threat to the peace, breach of the peace, or act of
aggression and a broad power to adopt and implement its decisions in order to maintain
the international peace and security. Such [enforcement] measures range from
5
United Nations Security Council." Encyclopedia of Governance. Vol. 2. Thousand Oaks, CA:
SAGE Reference, 2007. 1004-1005. Gale Virtual Reference Library. Web. 15 Dec. 2013.
6
The UN has six principal organs: the General Assembly (the main deliberative assembly);
the Security Council (for deciding certain resolutions for peace and security); the Economic and Social
Council (ECOSOC) (for promoting international economic and social co-operation and development);
the Secretariat (for providing studies, information, and facilities needed by the UN); the International
Court of Justice (the primary judicial organ); and the United Nations Trusteeship Council(inactive). at
http://www.unaslovenia.org/en/un/organs (last visited Feb. 2, 2014)
economic and/or other sanctions not involving the use of armed force to international
military action.7
The resort to obligatory sanctions is intended to apply pressure on a State or
entity to comply with the objectives set by the Security Council without resorting to the
use of force. 8 The obligatory sanctions provide the Security Council with an
indispensable means to breathe life to its decisions in such a manner that takes full
advantage of the universal character of the United Nations. As a matter of fact, the
Security Council has, countless of times in the past, used the same as an enforcement
tool when peace has been threatened and diplomatic efforts proved unsuccessful. The
range of sanctions employed by the Security Council includes comprehensive economic
and trade sanctions and/or more targeted measures such as arms embargoes, travel
bans, financial or diplomatic restrictions. 9
MONITORING GROUP ON
SOMALIA AND ERITREA
The United Nations website narrates the legal and historical foundations of the
Monitoring Group on Somalia and Eritrea as follows:
The Security Council Committee established pursuant to resolution 751
(1992) concerning Somalia was first created on 24 April 1992 to oversee the
general and complete arms embargo imposed by Security Council resolution 733
(1992) and to undertake the tasks set out by the Security Council in paragraph 11
of resolution 751 (1992) and, subsequently, in paragraph 4 of resolution 1356
(2001) and paragraph 11 of resolution 1844 (2008).
Following the adoption of resolution 1907 (2009), which imposed a
sanctions regime on Eritrea (described further below) and expanded the
Committee's mandate, the Committee changed its name on 26 February 2010 to
Security Council Committee pursuant to resolution 751 (1992) and 1907 (2009)
concerning Somalia and Eritrea. The expanded mandate of the Committee is
delineated in paragraph 18 of resolution 1907 (2009), paragraph 13 of resolution
2023 (2011) and paragraph 23 of resolution 2036 (2012).
The Security Council first imposed a general and complete arms
embargo on Somalia on 23 January 1992 with the adoption of resolution 733
(1992). Subsequent resolutions elaborated, amended and introduced exemptions
to arms embargo on Somalia. In resolution 2111 (2013), adopted on 24 July 2013,
7
United
Nations,
Security
http://www.un.org/sc/committees/
8
Supra.
9
Supra.
Council
Sanctions
Committees:
An
Overview
at
10
Supra.
6
(f) To investigate any means of transport, routes, seaports, airports and other
facilities used in connection with violations of the Somalia and Eritrea arms
embargoes;
(g) To continue refining and updating information on the draft list of those
individuals and entities that engage in acts described in paragraph 1 above,
inside and outside Somalia, and their active supporters, for possible future
measures by the Council, and to present such information to the Committee as
and when the Committee deems appropriate;
(h) To compile a draft list of those individuals and entities that engage in acts
described in paragraphs 15 (a)-(e) of resolution 1907 (2009), inside and outside
Eritrea, and their active supporters, for possible future measures by the
Council, and to present such information to the Committee as and when the
Committee deems appropriate;
(i) To continue making recommendations based on its investigations, on the
previous reports of the Panel of Experts (S/2003/223 and S/2003/1035)
appointed pursuant to resolutions 1425 (2002) and 1474 (2003), and on the
previous reports of the Monitoring Group (S/2004/604, S/2005/153,
S/2005/625, S/2006/229, S/2006/913, S/2007/436, S/2008/274, S/2008/769,
S/2010/91 and S/2011/433) S/RES/2060 (2012) 12-43897 5 appointed pursuant
to resolutions 1519 (2003), 1558 (2004), 1587 (2005), 1630 (2005), 1676 (2006), 1724
(2006), 1766 (2007), 1811 (2008), 1853 (2008), 1916 (2010) and 2002 (2011);
(j) To work closely with the Committee on specific recommendations for
additional measures to improve overall compliance with the Somalia and Eritrea
arms embargoes, as well as the measures imposed in paragraphs 1, 3 and 7 of
resolution 1844 (2008), and paragraphs 5, 6, 8, 10, 12 and 13 of resolution 1907
(2009) concerning Eritrea;
(k) To assist in identifying areas where the capacities of States in the region can
be strengthened to facilitate the implementation of the Somalia and Eritrea arms
embargoes, as well as the measures imposed in paragraphs 1, 3 and 7 of
resolution 1844 (2008), and paragraphs 5, 6, 8, 10, 12 and 13 of resolution 1907
(2009) concerning Eritrea;
(l) To provide to the Council, through the Committee, a midterm briefing within
six months of its establishment, and to submit progress reports to the Committee
on a monthly basis;
(m) To submit, for the Security Councils consideration, through the Committee,
two final reports; one focusing on Somalia, the other on Eritrea, covering all the
tasks set out above, no later than thirty days prior to the termination of the
Monitoring Groups mandate.11 (emphasis mine)
Security Council Resolution 1744 dated February 2007 amended the scope of the
arms embargo and limited the embargo to non-state actors. This means that the supply
of weapons and military equipment intended solely for the purpose of helping develop
Somali security sector institutions is allowed subject to some requirements such as notice
to the sanctions committee on Somalia. This state of affairs was altered by Security
Council Resolution 1844, issued in November 2008, which amended the arms embargo
to include target entities that violate the arms embargo or obstruct the delivery of any
kind of humanitarian assistance to or in Somalia.
In light of these changes, clearly, paragraph 13(e) of Resolution 2060 (2012) is
broad enough to empower the Monitoring Group on Somalia and Eritrea to investigate
correspondences in Facebook relating to ship hijackings and hostage-takings since these
activities fall under the phrase all activities in the financial, maritime and other sectors,
which generate revenues used to commit violations of the Somalia and Eritrea arms
embargoes12. Ship hijackings and hostage-takings are obviously endeavors which are
induced by a profit motive. Furthermore, the alleged conversations with accomplices in
the government and/or corporate world are also encompassed for it is possible that
these supporters act as financiers and therefore such conversations can be considered as
activities which generate revenues (e.g. through solicitations and donations) to commit
violations of the Somalia and Eritrea arms embargo. Such inquiry into correspondences
in Facebook concerning ship hijackings, hostage-takings, and violations of the arms
embargo between Somalia and Eritrea may also find basis in paragraphs 13(g) and 13(h)
which require Monitoring Group to complete its draft list of individuals that may be
subject to future sanctions by the UN Security Council.
However, despite the Monitoring Group on Somalia and Eritrea having the
competence to investigate communications, such as those contained in Facebook,
regarding ship hijackings, hostage-takings, and violations of the arms embargo between
Somalia and Eritrea, nowhere in Security Council Resolutions 2060 and 1744 which
created it is it given the coercive power to take measures to compel any person, natural
or juridical, to divulge such communications. The fact that the experts of the Monitoring
Group on Somalia and Eritrea went to the UN Security Council after repeated failed
attempts to get Facebook to cooperate proves this point. Facebooks refusal, therefore, to
surrender such information was warranted.
11
UN
Security
Council
Resolution
2060
http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3CF6E4FF96FF9%7D/Somalia%20S%20RES%202060.pdf (last viewed Feb. 4, 2014)
12
Paragraph 13(e), Resolution 2060 (2012).
(2012)
at
FACEBOOK USER
STATISTICS
Facebook reported that it had 1.11 billion monthly active users worldwide as of
March 2013,. Regarding Facebook's mobile usage, per an analyst report in early 2013,
there are 192 million Android users, 147 million iPhone users, 48 million iPad users and
56 million messenger users, and a total of 604 million mobile Facebook users. It has been
estimated that 1 out of every 7 people on Earth is on Facebook.14
The number of Facebook users in the Philippines ranks 8th in the world. As of
this writing, there are 30,214,140 Facebook users in the Philippines: 43% of which are
male, while 46% are female.15 There are 33,600,000 internet users in the Philippines in
2013. This means that 89.92% of Philippine users or almost 9 in every 10 Filipinos who
13
have access to the internet maintain a Facebook account.16 With respect to the entire
Filipino population in 2013 which is 103,775,002 then 29.12% of the entire Philippine
population or approximately 3 in every 10 Filipinos have Facebook accounts. 17
It was reported that Facebook had around 180 petabytes of data at the end of
2012 and it continues to grow by over half a petabyte every 24 hours.18
FACEBOOK
FEATURES
Registration & Connecting
Although the website is free to use, registration is a condition precedent for one
to be able to enjoy the services of Facebook. Once registered, the user is prompted to
construct his/her profile and add other users as his or her friends. This is done
through the act of friending.
The act of "friending" in Facebook pertains to the deed of sending another user a
friend request which is, stripped down to its barest essentials, a proposal to link ones
profile with another. If the receiving party approves the friend request, they will become
friends. In theory, a user is expected to only add or accept a friend request if he or she
is actually familiar with the other person and/or is comfortable with sharing his or her
user data with the person. This is because the primary purpose of becoming friends in
Facebook is to increase the amount of user data that becomes accessible to both parties
because Facebook developed profiles in such a way as to have advanced privacy settings
so that the user may confine accessibility of the content he or she posts to a certain class
or list of users such as close friends, friends, acquaintances, etc.
Once friends, the users may classify themselves further as acquaintances or
close friends. The receiving party may also opt to decline the friend request or hide it
from view without deleting it by selecting the "Not Now" feature. Friend requests may
be cancelled by the sender any time so long as it has not been accepted by the other
party.
Aside from having friends, a user may also create or join common-interest
Facebook groups and/or fan pages corresponding to ones workplace, school, college, or
16
Gethooked, Facebook Reaches 30 Million Users in the Philippines at
http://www.gethooked360.com/facebook-reaches-30-million-users-in-the-philippines/ (last viewed
Feb.9, 2014)
17
Internet World Stats, Asia at http://www.internetworldstats.com/asia.htm#ph (last viewed
Feb. 9, 2014)
18
Supra.
10
other characteristics. Through these Facebook pages, the user may interact with other
users without the need of becoming friends.
News Feed
Facebooks News Feed displays a predetermined set of information updates
about other users activities which includes among others their status updates, profile
changes, upcoming events, and birthdays. The News Feed also displays some sponsored
links and advertisements from time to time as Facebook may determine in its discretion.
The News Feed may be customized to show only top stories (those stories that have
garnered much attention and discussion) or most recent stories in one feed depending
on the users News Feed settings.
Recent developments in Facebook have given its users the ability to control, to a
certain extent, through customizable privacy settings, some types of information from
being automatically shared with friends and at the same time filter the data received
from such friends.
Timeline
Since December 15, 2011, the Facebook Timeline replaced the Facebook Wall as
the virtual space in which all the data of a Facebook user is displayed and organized.
The Timeline houses the photos, videos, status updates, and other posts of any Facebook
user and such data are published chronologically. Posts and events may be hidden or
exhibited at the option of the user. Users can also set the Timelines macro privacy
settings to limit who can view their data or use its micro privacy settings to hide some
content from certain users. Aside from the user, the users friends also have the ability to
post on the formers Timeline which the user may delete or hide at his or her discretion.
Messaging and Inbox
Since the time of its inception, Facebook has permitted users to send private
messages to each other. A user has the ability to send a message to any number of
his/her friends at any one time. Deleting a message from one's inbox does not delete it
from the inbox of other users, thus disabling a sender to redo a message sent by him or
her.
On November 15, 2010, an innovative messaging platform codenamed "Project
Titan" was launched by Facebook. The said system allows users to directly communicate
with each other via Facebook using several different methods (including a special email
address, text messaging, or through the Facebook website or mobile app). The novelty
11
lies in the fact that no matter what method is used to convey a message, they are all
contained within single threads in a unified inbox which makes it easier for the user to
keep track of the many different conversations. It also comes with adjustable privacy
settings which give users the option to limit whom they can receive messages from.
Voice and Video Calls
Voice calls were introduced by Facebook in April 2011. This advanced messaging
feature gives the user the ability to add his or her voice to the Facebook Chat as well as
the capacity to leave voice messages on Facebook. A few months after the introduction
of voice calls, Facebook partnered with Skype. The team up resulted in the improvement
of the voice call feature to such an extent as to allow one-to-one real-time video calls
between users.
TYPES OF INFORMATION
OBTAINED BY FACEBOOK
There are different types of information obtained by Facebook. According to
Facebook, they are:
Private Information
1) Registration information: When a user signs up for Facebook, the user is
required to provide information such as his name, email address, birthday,
and gender. In some cases, he may be able to register using other
information, like ones telephone number.
2) Information the user chooses to share: The information obtained also
includes the information the user chooses to share on Facebook, such as
when the user posts a status update, uploads a photo, or comments on a
friend's story. Other information which fall under this category are those the
user opts to share when he or she communicate with Facebook, such as when
the user contacts Facebook using an email address, or when user takes an
action, such as when he or she adds a friend, likes a Page or a website, adds a
place to his or her story, uses Facebooks contact importers, or indicates his
or her relationship status.
3) Information others share about the user: Facebook obtains information about
the user from his or her friends and other members of his network, such as
when they upload the users contact information, post a photo of the user,
tag the user in a photo or status update, or at a location, or add the user to a
group.
12
4) Other information we receive about the user: Facebook also receives other
types of information about the user which includes the following:
Data about the user whenever the user runs Facebook, such as when
the user views another person's timeline, sends or receives a
message, searches for a friend or a Page, clicks on, views or
otherwise interacts with things, uses a Facebook mobile app, or
makes purchases through Facebook.
Additional related data (or metadata), such as the time, date, and
place where the photo or video posted by the user was taken.
Data from or about the computer, mobile phone, or other devices the
user employs to install Facebook apps or to access Facebook,
including when multiple users log in from the same device. This
may include network and communication information, such as the
users IP address or mobile phone number, and other information
about things like the users internet service, operating system,
location, the type (including identifiers) of the device or browser the
user engages, or the pages the user visits. For example, Facebook
may get the users GPS or other location information so that
Facebook can tell you if any of your friends are nearby, or we could
request device information to improve how our apps work on the
users device.
Data whenever the user visits a game, application, or website that
uses Facebook Platform or visit a site with a Facebook feature (such
as a social plugin), sometimes through cookies. This may include the
date and time the user visits the site; the web address, or URL, the
user is on; technical information about the IP address, browser and
the operating system the user uses; and, if the user is logged in to
Facebook, the users User ID.
Data from Facebooks affiliates or advertising partners, customers
and other third parties that helps Facebook deliver ads, understand
online activity, and generally make Facebook better. For example, an
advertiser may relay information about the user (like how you
responded to an ad on Facebook or on another site) in order to
measure the effectiveness of - and improve the quality of - ads.
Public Information
According to Facebook, the phrase "public information" (also referred to as
"Everyone information"), refers to the information the user chooses to make
public, as well as information that is always publicly available. These include,
among other things, types of stories that are always public stories such as when
the user posts on a Page's wall or comments on a news article; the users name;
13
profile picture; cover photo; networks; gender; username; user ID; and status
updates, pictures, and videos whose privacy settings are set to public.
Information made public is available to anyone including people off
Facebook. Making information public also means that the information:
can be associated with the specific user (i.e., name, profile pictures,
cover photos, timeline, User ID, username, etc.) even off Facebook;
can show up when someone does a search on Facebook or on a
public search engine;
will be accessible to the Facebook-integrated games, applications,
and websites the user and users friends use; and
will be accessible to anyone who uses Facebooks APIs.19
FACEBOOK INFO
UTILIZATION
According to Facebooks page, it uses the information it retrieves about the users
in connection with the services and features it provides to the users, their friends,
Facebook partners, the advertisers that purchase ads on Facebook, and the developers
that build the games, applications, and websites the users use. Facebook claims that it
only provides data to its advertising partners or customers after it has removed the
users name and any other personally identifying information from it, or have combined
it with other people's data in a way that it no longer personally identifies the user.
According to Facebook, it also uses the collected data:
as part of its efforts to keep Facebook products, services and integrations safe
and secure;
to protect Facebook's or others' rights or property;
to provide users with location features and services;
to measure or understand the effectiveness of ads;
to make suggestions to users on Facebook;
for internal operations, including troubleshooting, data analysis, testing,
research and service improvement.20
19
Facebook,
Information
We
Receive
and
How
it
https://www.facebook.com/about/privacy/your-info (last viewed Feb. 9 2014)
20
Supra.
is
Used
at
14
In accordance with the second exception, Facebook has provided in its Data
Policy a provision which is of crucial relevance to the legal problem at hand that we
shall hereby quote it in full. To wit:
RESPONDING TO LEGAL REQUESTS AND PREVENTING HARM
We may access, preserve and share your information in response to a
legal request (like a search warrant, court order or subpoena) if we have
a good faith belief that the law requires us to do so. This may include
responding to legal requests from jurisdictions outside of the United
States where we have a good faith belief that the response is required by
law in that jurisdiction, affects users in that jurisdiction, and is consistent
with internationally recognized standards. We may also access, preserve
and share information when we have a good faith belief it is necessary
to: detect, prevent and address fraud and other illegal activity; to protect
ourselves, you and others, including as part of investigations; or to
prevent death or imminent bodily harm. Information we receive about
you, including financial transaction data related to purchases made with
Facebook, may be accessed, processed and retained for an extended
period of time when it is the subject of a legal request or obligation,
governmental investigation, or investigations concerning possible
21
Supra.
15
This means that Facebook will share a users information, even without the
users consent, if it believes in good faith that it is lawful and required by law to comply
with a legal request, local or international. Facebook qualified the term legal
request through an enumeration of what it considers as examples of legal requests.
Facebooks enumeration includes the following: search warrant, court order, and
subpoena. Expressio unios est exclusion alterius. By implication from the above
enumeration, the term legal request as used in Facebooks Data Policy is confined to
mean those that are issued by a court.
Is the UN Security Council a court? It is submitted that it is not.
Through the years, the UN Security Councils powers have expanded as
compared to how it was originally conceptualized. At present, it can be argued that the
UN Security Council has begun to exercise judicial functions evidence of which is the
fact that the UN Security Council established international tribunals with criminal
jurisdiction over individuals, created exceptions to the jurisdiction of the International
Criminal Court, ruled on border disputes between Iraq and Kuwait and established a
compensation commission to award damages suffered due Iraqs invasion, set up an
international criminal investigation commission23, passed sanctions against people and
nations, and declared certain acts as illegal.
This apparent steady increase in the scope of the UN Security Councils powers
raises a number of controversies regarding the UN Security Councils competence, the
applicable safeguards, and of the Security Councils relationship with respect to other
bodies of the United Nations such as the International Court of Justice.
It must be remembered, however, that the UN Security Councils powers are still,
and always will be, subject to the UN Charter and norms of jus cogens. Despite the UN
Charters inconclusiveness as to the UN Security Councils competence to assume
judicial functions incidental to carrying out its specific duties under its primary
responsibility to maintain international peace and security, it is clear that the UN
Charter establishes the International Court of Justice as the principal judicial organ of
22
Facebook,
Some
Other
Things
You
Need
https://www.facebook.com/about/privacy/other (last visited Feb. 9, 2014)
23
Simon Chesterman, The UN Security Council and the
http://ssrn.com/abstract=1279849 (last visited Feb. 9, 2014)
to
Know
at
Rule
of
at
Law
16
the United Nations. 24 The mere exercise of quasi-judicial functions does not make the
UN Security Council a court. At most, the UN Security Council is only a quasi-judicial
body.
As a consequence, even if the UN Security Council acts on the complaint filed by
the Monitoring Group on Somalia and Eritrea and issues an order in favor of the latter,
the exception clause contained in Facebooks Data Use policy cannot serve as
justification for Facebook to expose its users data since the UN Security Council is not a
court and thus its requests/demands for information do not come within the scope of
the term legal requests as contemplated in Facebooks Data Use policy. Therefore, if
Facebook is to be compelled if it can be compelled at all to surrender its users
information then it should find justification elsewhere; in particular, the UN Security
Councils powers under Chapter VII of the UN Charter.
24
25
26
Supra.
Id.
18
27
For a comprehensive discussion of probable cause and the requisites for the issuance of a valid
search warrant, see Abuan vs. People, G.R. No. 168773, October 27, 2006.
28
It is true that the UN Security Council has the option to create a new, ad hoc institution to take
cognizance of such matters as that concerning Facebook. This power of the UN Security Council to create a
tribunal was confirmed by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the 1995
Tadic case. However, not only has the exercise of this power often been ineffective, it is also inefficient,
impractical, and contributes to the fragmentation of international law. Such course of action may also give rise to
tension between the UN Security Council, its institutional creation, and the International Court of Justice.
29
Libya v. U.S., 1992, International Court of Justice.
19
Council is the primary quasi-political organ while the International Court of Justice is
the primary judicial organ, both are co-equal neither are subordinate nor superior to
the other and nothing precludes one from being a secondary organ with respect to
the exercise of the primary functions of another especially in cases concerning the gray
areas of international law. Furthermore, under the UN Charter, each UN organ
determines the scope of its own competence. Thus, it appears that the general rule is that
the actions, decisions, or resolutions of the UN Security Council are not reviewable by
the International Court of Justice.
The reason behind omitting any explicit reference in the UN Charter as to the
existence of the power of judicial review on the part of the International Court of Justice
to determine the legality of the UN Security Councils exercise of its Chapter VII powers
is that the UN Security Council must act with significant alacrity in collective response
situations. To be able to do just that, the UN Charter made it possible for the UN
Security Council to avoid being hindered by legal considerations and processes in
confronting matters requiring utmost urgency such as when there is a threat to the
peace.
Nevertheless, "the Court [should] not allow the fact that a dispute is possessed of
both political and legal aspects [to] prevent it from examining the legal questions that
are involved.30 The rulings in cases brought before the International Court of Justice
imply that there is wiggle room, although limited, for the exercise of judicial review over
the acts of the UN Security Council in order to determine if the action taken by the UN
Security Council under Chapter VII is a complete disregard of the purpose and
principles embraced by the UN Charter. The Lockerbie Incident Cases serves as the
landmark case in this regard.31
In 1992, Libya applied to the International Court of Justice for provisional
measures to protect its rights which were allegedly violated by the threat of economic
sanctions by the United States and the United Kingdom. The issue revolved around the
fact that the threatened economic sanctions were with the blessings of the UN Security
Council, through the exercise of its UN Charter Chapter VII powers, and thus the
possibility of a conflict between the Chapter VII functions of the UN Security Council
and the judicial function of the International Court of Justice presented itself.
With eleven votes to five, the International Court of Justice ruled that it lacked
prima facie jurisdiction to grant Libyas requested provisional measures because
30
Professor Rosenne as quoted in Scott S. Evans, The Lockerbie Incident Cases: Libyan-Sponsored
Terrorism,
Judicial
Review
and
the
Political
Question
Doctrine
at
http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1434&context=mjil
(last
visited Feb. 9, 2014).
31
Libya v. U.S., 1992, International Court of Justice.
21
according to Article 103 of the UN Charter, obligations of the Member States arising
from the UN Charter prevails over any other conflicting treaty obligations prior or
subsequent thereto. Therefore, even if the rights claimed by Libya were valid under the
Montreal Convention, invocation of such rights in its application for provisional
measures was prima facie regarded as inappropriate since said economic sanctions were
ordered by the UN Security Council whose binding decisions Libya, as a Member State,
is under the obligation to abide by32.
In 1998, the International Court of Justice declared that Libyas application is
admissible by it in order to decide the legal question concerning the legal rights of Libya
arising from the Montreal Convention. However, an adjudication based on the merits
had been precluded by the eventual settlement effected in 1998 by the parties to the case.
An absolute answer to the question Can the International Court of Justice rule,
according to the limits as set by the UN Charter, on the actions taken by the UN Security
Council and determine if such actions are intra vires or ultra vires? has therefore evaded
the international legal community.
The Lockerbie Incident Cases also leaves hanging the question of the extent to
which binding decisions of the UN Security Council may interfere with domestic law.
Libyans constitutional law, for example, prohibits the extradition of Libyan nationals. 33
In the Lockerbie incident case, even if the UN Security Councils binding decision
trumped the rights of Libya arising out of the Montreal Convention, it is obvious that
such binding decision of the UN Security Council is still in conflict with Libyas
constitutional law. The International Court of Justice, through Judge Shahabuddeen,
declared that the prohibitions under the domestic law of a Member State are not a valid
defense for inability to comply with a treaty such as the UN Charter.34 But does this
mean that the UN Security Council gains unbridled authority and discretion to encroach
on the legal rights of its Member States just by invoking Chapter VII of the UN Charter?
[I]s there any 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?35
In response to Judge Shahabuddeens questions, many international lawyers and
jurists have argued, as I argue it again now, that a resolution of the UN Security Council
32
22
Supra.
Supra.
38
Supra.
39
Id.
37
23
The Universal Declaration of Human Rights was the first document in human
history which represented a common standard of achievement42 for the international
community. It enumerated the basic civil, political, economic, social and cultural rights
that all human beings have a right to enjoy. Years after its adoption, the Universal
40
Kamrul Hossain, Legality of the Security Council Action: Does the International Court of Justice
Move
to
Take
Up
the
Challenge
of
Judicial
Review?
at
http://www.usak.org.tr/dosyalar/dergi/SX55yIGN3p9Urd6lBNqcC9nFBjNVyC.pdf (last viewed Feb. 9 2014).
41
United Nations, History of the Universal Declaration of Human Rights at
http://www.un.org/en/documents/udhr/history.shtml (last visited Feb. 9 2014).
42
Preamble of the Universal Declaration of Human Rights
24
The UN Security Council, therefore, even in the exercise of its awesome Chapter
VII powers, has to refrain from any arbitrary interference in the right to privacy of
individuals because the UN Security Council has to act in compliance with the purposes
and principles of the UN Charter, which embraces international law as a whole, which
in turn encompasses the Universal Declaration of Human Rights. It is true that the UN
Security Council is authorized to temporarily derogate from the rules of both treaty and
customary international law so long as it is acting under Chapter VII to maintain and
restore international peace. 46 [T]his authority is inherent in the very nature of
enforcement action and implicit in Chapter VII itself. Under no circumstances, however,
may the Council act in a way which would defeat the other purposes and principles of
the UN, or override any other rules of jus cogens.47 Such temporary derogation must
43
Supra.
Id.
45
Id.
46
Supra.
47
Aristotle Constantinides, An Overview of Legal Restraints on Security Council Chapter VII Action
with a Focus on Post-Conflict Iraq at http://www.esil-sedi.eu/sites/default/files/Constantinides_0.PDF (last
visited Feb. 9, 2014).
44
25
therefore be exercised by the UN Security Council only as a last resort when all other
options in accordance with treaty and customary international law have been exhausted
or such are insufficient to address with adequate alacrity the emergencies and threats
against international peace that may confront the UN Security Council.
I submit that it is the duty of the International Court of Justice, upon request of a
proper interested party48, to determine and shoot down any unwarranted derogation
from the purposes and principles of the UN Charter committed by the UN Security
Council as ultra vires. [I]t is a general and indisputable rule, that where there is a legal
right, there is also a legal remedy, by suit, or action at law, whenever the right is
invaded."49 It being the primary judicial organ of the United Nations, the International
Court of Justice is the appropriate body to provide such remedy.
48
Only States are eligible to appear before the Court in contentious cases. At present, this basically
means the 192 United Nations Member States. The Court has no jurisdiction to deal with applications from
individuals, non-governmental organizations, corporations or any other private entity. It cannot provide them
with legal counselling or help them in their dealings with the authorities of any State whatever. However, a State
may take up the case of one of its nationals and invoke against another State the wrongs which its national claims
to have suffered at the hands of the latter; the dispute then becomes one between States. at http://www.icjcij.org/information/index.php?p1=7&p2=2 (last visited Feb. 9, 2014).
49
Chief Justice John Marshall quoting William Blackstone in Marbury vs. Madison, 5 U.S. 137, (1803).
26
27
powers of judicial review over Chapter VII UN Security Council decisions as implied by
cases such as the Lockerbie Incident Cases, and the Namibia Case.
I reiterate that while it is true that the International Court of Justice was not
expressly granted by the UN Charter the competence of judicial review or appeal with
respect to the decisions and resolutions of the UN Security Council, neither did the UN
Charter explicitly deny said power to the International Court of Justice. The lack of an
express power of review in the Charter is not determinative. What is more important is
the lack of an express prohibition against engaging in judicial review. Since the Charter
does not specifically deny judicial review by the Court, a judicial review mechanism
may be developed through practice50 It being the primary judicial organ of the United
Nations, the International Court of Justice should step up, albeit cautiously and with
sufficient self-restraint as the circumstances may require, to protect the rights of the
members of the international community.
As for the UN Security Council, it should always remember that targeted
sanctions utility is directly correlated with their perceived effectiveness and legitimacy;
and legitimacy heavily depends on procedural fairness and the availability of a remedy
to persons wrongly harmed. I forward then the recommendation that it adopts as its
own procedure or incorporate into its existing one the concept of probable cause as
well as the other requisites for the issuance of a valid search warrant when it decides
cases as that of Facebook where the right to privacy of individuals is at risk of being
encroached upon by the exercise of its Chapter VII powers. Furthermore, I suggest that
the UN Security Council adopt fair, clear, and transparent procedures associated with
such determination of probable cause and other requisites for the issuance of a valid
search warrant as may be adopted by it. If by chance the UN Security Council finds the
adoption of the concept of probable cause and such other measures that ensure
procedural fairness51 too painstaking an ordeal, an alternative option available to it
would be to should seek the aid of existing international judicial institutions, such as the
International Court of Justice, through requests for advisory opinions. Such course of
action will result in a fruitful interaction between the co-equal organs of the United
50
Supra.
The minimum requirements for procedural fairness includes (i) the right to be informed of measures
taken by the Council and to know the case against him or her, including a statement of the case and information
as to how requests for review and exemptions may be made; (ii) the right to be heard (via submissions in writing)
within a reasonable time by the relevant decision-making body and with assistance or representation by counsel;
and (iii) the right to review by an effective, impartial and independent mechanism with the ability to provide a
remedy, such as the lifting of the measure or compensation.
For further discussion regarding the matter, see Watson Institute for International Studies,
Strengthening UN Targeted Sanctions Through Fair and Clear Procedures (Watson Institute for International
Studies at http://watsoninstitute.org/pub/Strengthening_Targeted_Sanctions.pdf (last visited Feb. 9, 2014).
51
28
Nations which will breathe to life to what Judge Lachs deemed to be the original intent
of the founders of the United Nations.
29