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UN Week – 7/2/12

July 3, 2012

This blog entry is written by members of our blogging community and expresses those experts’ views alone.

By John and Douglas Carey

In this issue: Judicial review at the UN?

          Judicial review in the United States has been very much on view lately. The power of the Supreme Court to rule on the validity of state and federal legislation has been asserted repeatedly in recent weeks. The Court’s narrow ruling in favor of the Affordable Health law is just the latest instance of judicial supremacy successfully asserted.

          In the Citizens United decision, the Supreme Court declared that corporations and unions have the same rights of free speech as individuals and so can spend freely in election campaigns.

The Court recently construed the constitutional right to confront witnesses in such a way as to deny the right to cross-examine crime lab analysts. Another recent ruling on a constitutional right, this one against cruel and unusual punishment, said that this right was violated by mandatory life imprisonment of juveniles without parole.

Now let us turn to the UN. Does anything comparable happen there? In a word, no. There is a high court, the International Court of Justice. Article 96 of the UN Charter provides for the ICJ to issue advisory opinions, something the US Supreme Court cannot do: there must be a “case or controversy” before it or there is no jurisdiction.

The ICJ can hear “all cases which the parties refer to it and all matters specifically provided for in the Charter . . . or in treaties and conventions in force.” And a country can declare itself subject to the Court’s jurisdiction in relation to another country similarly subject to it. The ICJ’s jurisdiction could hardly be broader, encompassing “any question of international law.”

          So if, for example, two states differ on a question of Security Council power but agree to ICJ jurisdiction, why should that issue not go to the ICJ? Let’s take a realistic hypothetical: the Security Council has created a Special Committee to deal with a terrorist group by subjecting its members and sympathizers to sanctions like travel bans. Without any kind of hearing, the Committee has listed Ishmael Smith as a sympathizer and imposed a travel ban on him. He applies to be de-listed and has a brief hearing but is turned down.

Smith’s country of nationality brings a case before the ICJ against a government that has brought allegations to the Committee and thus caused him to be listed. Both countries have accepted the Court’s compulsory jurisdiction. The issue argued before the Court involves due process, whether, consistent with the Universal Declaration of Human Rights, an individual can be deprived of liberty to the extent of effectively preventing him or her from traveling, for business as Smith claims, or simply for pleasure.

Smith has been advised to seek assistance from the UN Ombudsperson, but that official has been unable to resolve the issues.

Smith comes up against a brick wall when he learns that the Court will not adjudicate his case because his real adversary is the Committee, which is not subject to ICJ jurisdiction, not being a state. And there it would seem that Smith’s quest for justice must end.

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