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The International Court of Justice and the Security Council: Is there Room for Judicial Control of Decisions of the Political Organs of the United Nations?

Published online by Cambridge University Press:  17 January 2008

Extract

The end of the Cold War and the emergence of a one-superpower world have brought about what one may call the resurrection of the Security Council and a reactivation of Chapter VII of the Charter of the United Nations. Powers of a coercive nature vested by the Charter in the Security Council which for decades seemed like a dead letter have been rediscovered since the Iraqi invasion of Kuwait. The Security Council, which until then had been deadlocked through the threat or use of the veto, has now come alive. Up to the Iraqi invasion of Kuwait in August 1990 the Security Council had passed 659 resolutions in its 45 years of existence. In the six years since then it has passed over 400 resolutions. What is more important, however, is that mandatory sanctions, which until 1990 had been ordered only twice—the comprehensive sanctions on Rhodesia and arms embargo on South Africa—have since been used by the Security Council in relation to at least eleven countries. This new and increased activity of the Security Council has provoked debate in recent years as to whether the Council is subject to any limitations when it is acting to maintain or restore international peace and security. The problem has shifted from one of trying to get the Council to work as it was intended, to one of trying to control the work of the Council. In particular there has been renewed interest in the question whether there is any room for judicial control, by the International Court of Justice, of decisions made by the political organs of the United Nations.

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Copyright © British Institute of International and Comparative Law 1997

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References

1. Comprehensive sanctions have been imposed on Iraq (Res.661(1990)) and were imposed on the Federal Republic of Yugoslavia (Serbia and Montenegro) (Res.757(1992) and 787(1992) and 820(1993)). Haiti (Res.841(1993). 861(1993). 873(1993). and 917(1994)). and the parts of the Republic of Bosnia and Herzegovina controlled by the Bosnian Serbs (Res.820(1993) and 942 (1994)) and the (then) United Nations Protected Areas in the Republic of Croatia (Res.820(1993)). Selective sanctions have also been imposed on Libya (Res.748(1992) and 883(1993)) and Sudan (Res. 1054(1996) and 1070(1996)) and were imposed on the territory of Angola under the control of the UNITA rebel movement (Res.864(1993)). Arms embargoes have been imposed in respect of Liberia (Res.788(1992)). Somalia (Res.733(1992)). Rwanda (Res.918(1994) and 1011(1995)) and the whole of the territory of the former Yugoslavia (Res.713(1991)).

2. See Franck, . “The ‘Powers of Appreciation’: Who Is the Ultimate Guardian of Un Legality?” (1992) 86 AJ.I.L. 519Google Scholar; Reisman, . “The Constitutional Crisis in the United Nations” (1993) 87 AJ.I.L. 83Google Scholar: Macdonald, R. St J.. “Changing Relations between the International Court of Justice and the Security Council of the United Nations” (1993) 31 Can. Y.I.L. 3Google Scholar: Watson, . “Constitutionalism. Judicial Review, and the World Court” (1993) 34 Harv.I.LJ. 1Google Scholar: Gowlland-Debbas, . “The Relationship between the International Court of Justice and the Security Council in the Light of the Lockerbie Case” (1994) 88 AJ.I.L. 643Google Scholar; Bedjaoui, . The New World Order and the Security Council—Testing the Legality of its Acts (1994)Google Scholar: Brownlie, . “The Decisions of Political Organs of the United Nations and the Rule of Law”, in Essays in Honour of Wang Tieya (1994). p.91Google Scholar: Gill, . “Legal and Some Political Limitations on the Power of the UN Security Council to Exercise its Enforcement Powers under Chapter VII of the Charter” (1995) 26 N.Y.I.L. 33Google Scholar; Alvarez, . “Judging the Security Council” (1996) 90 AJ.I.L. 1.Google Scholar

3. Alvarez, idem, pp.8–14. See also Reisman. idem, pp.96–100.

4. Alvarez, idem, pp.11–14.

5. Alvarez, idem, pp.20 et seq.

6. Alvarez, idem, p.23. The argument here is that the ICJ may be called upon to decide cases analogous to cases where the Council has made legal determinations. Since the ICJ is free to depart from the legal ruling made by the Council in such situations, it will be “conveying a message about the state of the law on [the] … subject and. incidentally if not directly, on the scope (if not the validity) of the precedent set by the Council”. The example given is a case where the ICJ may be asked to decide on intentionally caused environmental damage, a matter the Council found Iraq financially liable for in Res.687( 1991). A concrete example of this sort of possible interplay between the Court and the Council can be found in Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996,311.L.M. 806 (1996). One of the issues in this case was whether Security Council Res.984( 1995) (which “notes with appreciation” and “welcomes” the security assurances given by the permanent members of the Security Council to members of the Nuclear Non-Proliferation Treaty) in some way endorses the view that the use of nuclear weapons, in response to an armed attack, may be lawful. Judge Weeramantry stated, at p.911. that “even if the Security Council had expressly endorsed the use of such weapons, it is this Court which is the ultimate authority on questions of legality, and … such an observation, even if made, would not prevent the Court from making its independent pronouncement on this matter.” See Harper. “Does the United Nations Security Council have the Competence to Act as Court and Legislature?”(1994) 27 N.Y.U.J.I.L. & Pol. 103 for concern over the Security Council's quasi-adjudicative or quasilegislative determinations.

7. Alvarez idem, pp.28–36.

8. The first case was Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. US: Libya v. UK). Provisional Measures. I.C.J. Rep. 1992. 3. 114. That case arose out of US and UK demands that Libya surrender for trial two Libyan nationals accused (by the US and UK) of carrying out the bombing of Pan Am Flight 103. In Jan. 1992 the Security Council adopted Res.731 urging Libya “to provide a full and effective response” to the requests of the UK and US. In Mar. 1992 Libya filed applications in the ICJ. against the UK and US. Libya asked for a judgment declaring that the UK and US were in breach of their obligations under the Montreal Convention and that it was complying with its obligations under that Convention. Libya also filed an application, under Art.41 of the ICJ Statute, requesting the indication of provisional measures which would prevent the US and UK from taking any measures that would coerce Libya to surrender the two men to any jurisdiction outside Libya or that would otherwise prejudice the rights claimed by Libya. After the close of oral arguments in the ICJ but before judgment was delivered, the Security Council adopted, under Chap.VII of the Charter. Res.748 which imposed mandatory sanctions on Libya in the event that Libya failed to comply, by a certain date, with the demand to surrender the two men. Libya's requests for provisional measures were dismissed by the ICJ. It considered that, by Art.25 of the Charter. UN members are obliged to accept and carry out the decisions of the Security Council: that obligation prima facie extended to Res.748 and by Art. 103 of the Charter prevailed over any obligation under the Montreal Convention. The rights claimed by Libya were therefore inappropriate for protection at the provisional measures phase. The second case is Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina v. Yugoslavia (Serbia & Montenegro)). Requests for Provisional Measures I.C.J. Rep. 1993,3 and 325. In its second request for provisional measures. Bosnia asked the ICJ to declare that SC Res.713 imposing an arms embargo upon the whole of the territory of the former Yugoslavia must not be construed as imposing an arms embargo on the Bosnian government as this would be contrary to the right of selfdefence enshrined in Art.51 of the Charter and would also stop the Bosnian government from preventing the commission of genocide as required by Art.l of the Genocide Convention. The ICJ held that this request was outside the scope of Art.41 of the Statute as it was not aimed at a declaration by the ICJ indicating steps that the respondent ought to take for the preservation of the applicant's rights but. rather, at “a declaration of what those rights are which would clarify the legal situation for the entire international community in particular the members of the United Nations Security Council” (p.345). This aspect of Bosnia's case (the part seeking a lifting of the arms embargo) has become moot as a result of the signing of the General Framework Agreement for Peace in Bosnia and Herzegovina (the Dayton Accords) and as a result of SC Res.1021(1995) which lifts the arms embargo. The point was therefore not pursued at the jurisdictional phase of the case in Apr. 1996. See the lCJ's judgment on jurisdiction and admissibility delivered on 11 July 1996.Google Scholar

9. Art.4 of the Charter.

10. It is interesting that the ICJ should have been referred to in the Charter as the “principal judicial organ” because it is in fact the only judicial organ created by the Charter. This expression has. however, taken on a real meaning since 1945 because other judicial organs have now been created within the UN system. The General Assembly has set up an Administrative Tribunal to handle staff matters and “appeals” from that Tribunal used to go to the ICJ. Also, the Security Council has more recently set up two other judicial bodies within the UN system: the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda. See SC Res.808 and 827 for the former and 955 for the latter.

11. See Gowlland-Debbas, . op. cit. supra, n.2 at p.655.Google Scholar

12. See United Stales Diplomatic and Consular Staff in Tehran I.C.J. Rep. 1980.3. 2122Google Scholar: also Military and Paramilitary Activities in and Against Nicaragua (Jurisdiction) I.C J. Rep. 1984. 392. 435.Google Scholar

13. Nicaragua, ibid.

14. See supra n.8.

15. In Diplomatic and Consular Staff. supra n.12. it was the US that brought the matter before both the Council and the ICJ and both organs reached similar decisions, viz. requesting Iran to release the hostages. See also SCRes.457 of 4 Dec. and 461 of31 Dec. 1979. Again, in the Nicaragua case it was Nicaragua that brought the matter both before the ICJ and to the attention of the Council and though the ICJ upheld its claims against the US. Nicaragua failed to secure a specific condemnation of the US by the Council. Again this was not a case of conflicting decisions: there was a decision by the ICJ to the effect that the US was responsible for the illegal use of force against Nicaragua and no decision by the Council as to whether or not the US bore such responsibility. See 1986 I.GJ. Rep. 14 and 76 I.L.R. 349. See also SC Res.530 and 562 of 19 May 1983 and 10 May 1985 respectively both of which reaffirmed the right of Nicaragua to be free of outside interference and expressed support for the Contadora peace process. Res.562 in particular called upon all States “to refrain from carrying out. supporting or promoting political, economic or military actions of any kind against any State in the region which might impede the peace objectives of the Contadora Group”. Neither Res. particularly implicated the US or any other State. Two draft resolutions tabled by Nicaragua in 1986 and calling for full compliance with the ICJ's decision failed to be adopted because of negative votes (vetoes) by the US.

16. See supra n. 13 and accompanying text. Emphasis added.

17. I.C.J. Rep. 1992.3.33.

18. The question of the limitations of the powers of the Security Council and of the possibility of judicial review (though not by the ICJ) also arose in the first case before the International Criminal Tribunal for the Former Yugoslavia. In the Duško Tadić case (Case No.IT–94–l–I–T). the defendant contested the validity of the Security Council action in setting up the Tribunal. He asserted that the resolutions of the Council were invalid and that in consequence the Tribunal had no jurisdiction to try him. One of the Tribunal's Trial Chambers, in a Decision of 10 Aug. 1995. rejected this motion of the defence and held that it contained non-justiciable issues. Nonetheless, the Trial Chamber expressed its view on the appropriateness of the Security Council action in setting up the Tribunal and took the view that that action was appropriate. However, on appeal, the Appeals Chamber of the Tribunal decided (by 4 votes to 1) that the Tribunal was competent to pronounce on the plea challenging the establishment of the Tribunal. The Appeals Chamber came to this conclusion on the basis that a challenge to the validity of the establishment of the Triuunal was a challenge to the jurisdiction of the Tribunal. It then held that in accordance with the principle of Kompelenz Kompeienz it had the competence to decide on its own jurisdiction (and thus on the legality of the establishment of the Tribunal). After examining the matter, the Appeals Chamber held that the Security Council had acted within its powers in setting up the Tribunal (see Case No.IT–94–l–AR72, decision of 2 Oct. 1995) (1996) 35 I.L.M. 32.

19. Note, however, the statement of Judge Shahabuddeen in Lockerbie, supra n.8. at pp.32.142. that if the question whether there are any limits to the powers of the Security Council is answered in the negative, the position would be “potentially curious” but “it would not. on that account, be necessarily unsustainable in law”.

20. Art.24(l) of the UN Charter. See also Franck, . op. cit. supra n.2, at p.523.Google Scholar where he points out that “the legality of actions by any UN organ must be judged by reference to the Charter as a ‘constitution’ of delegated powers”.

21. See e.g. the amendments proposed individually by Australia, the Netherlands. Chile and Mexico, 12 U.N.C.I.O. Docs. 603 and also those of Norway. 11 U.N.C.I.O. Docs. 378. Greece, 3 U.N.C.I.O. Docs. 531 and Iran. 3 U.N.C.I.O. Docs., 554.

22. Doc.881 III/3 146.12 U.N.C.I.O. Docs., 504–5 (10 June 1945).

23. I.C.J. Rep. 1992.3.61:94 I.L.R. 478. 544.Google Scholar

24. I.C.J. Rep. 1993, 325, 440, para.101Google Scholar; 95 I.L.R. 1.158. See also Judge, Bedjaoui, writing in a non-judicial capacity, op. cit. supra n.2. particularly at pp.14 and 31.Google Scholar

25. SC Official Records (1951), 553rd meeting, pp.2225.Google Scholar Quoted by Mr Stavropoulos, . representative of the UN Secretary General, at the oral hearings of the Namibia Advisory Opinion before the ICJ. See Pleadings, Oral Arguments, Documents—The Namibia Advisory Opinion, Vol.2, p.48. Also reproduced by Bedjaoui. idem, pp.285–286.Google Scholar

26. See the statement made by the Representative of Ecuador. Mr Ayala Lasso, in the Security Council prior to the adoption of Res.687(1991) which provides, inter alia, for the demarcation of the Iraq-Kuwait border. He said: “While Chapter VII of the Charter authorizes the use of all necessary means to implement the resolutions of the Council, it cannot confer on the Council more powers than those set forth in the Charter itself. A position of the Council in this matter, which is an extremely sensitive one. must fall unequivocally within the bounds of international law and of the United Nations Charter if it is not to become a fresh source of conflict”: SC meeting of 3 Apr. 1991. UN Doc.S/PV.2981. Reproduced by Bedjaoui, idem, p.347.

27. See Bedjaoui. idem, p.7.

28. I.C.J. Rep. 1992.3.65:94 I.L.R. 478,548.Google Scholar

29. Idem, p.46: 94 I.L.R. 478,529. See also Judge Fitzmaurice in the Namibia Advisory Opinion I.CJ. Rep. 1971,6,294.

30. Hans, Kelsen, The Law of the United Nations. A Critical Analysis of its Fundamental Problems (1951).p.294.Google Scholar

31. The insertion of this qualification was as a result of a proposal by the Chinese government which was supported by the other governments sponsoring the U.N.C.I.O. (the US, UK and USSR). The proposal was that “the Charter should provide specifically that adjustment or settlement of international disputes should be achieved with due regard for the principles of justice and international law”. See Doc.l.G/l(a) 3 U.N.C.I.O. Docs.,24 (1 May 1945).

32. Gill, , op. cit. supra n.2, at pp.6468.Google Scholar

33. Doc.555. III/1/27. 11 U.N.C.I.O. Docs., 378 (24 May 1945).

34. Ibid.

35. Ibid. See supra n.31 for the Chinese amendment.

36. Idem, p 379.

37. Ibid.

38. Ibid.

39. See Gill, . op. cit. supra n.2, at p.82. Gill takes the view that the Security Council is not bound by general international law when acting under Chap.VII but that it is nevertheless bound by rules of international humanitarian law. See also Gardam. “Legal Restraints of Security Council Military Enforcement Action” (1996) 17 Michigan J.I.L. 285 for the argument that the Security Council when it uses force is bound not only by the jus in bello but also by the principles of the jus ad bellum relating to proportionality and necessity.Google Scholar

40. I.C.J. Rep. 1971.6.294.Google Scholar

41. Emphasis in original.

42. Emphasis added.

43. By paras.2–4 of Res.687 of 3 Apr. 1991 the Security Council demanded that Iraq and Kuwait respect the inviolability of the boundary set out in the Agreed Minutes signed by both States in 1963. The Security Council also called upon the Secretary General to lend his assistance to make arrangements with Iraq and Kuwait to demarcate the boundary and it decided to guarantee the inviolability of the boundary. The Secretary General set up a commission made up of representatives of both States as well as independent representatives which proceeded to demarcate the boundary. See Final Report on the Demarcation of the International Boundary between the Republic of Iraq and the State of Kuwait of 20 May 1993 produced by the UN Iraq–Kuwait Boundary Commission, repr. in 941.L.R. 1: (1993) 32 I.L.M. 1425.

44. See Res.773 of 26 Aug. 1991 which recalls “that through the demarcation process the Commission is not reallocating territory between Kuwait and Iraq but it is simply carrying out the technical task necessary to demarcate for the first time the precise coordinates of the boundary set out in the 1963 Agreed Minutes”. See also the Presidential Statement on behalf of the Council of 28 June 1993 (UN Doc.S/26006) in which the Security Council again recalls that the Commission had simply carried out the technical task necessary to demarcate the precise co-ordinates of the boundary for the first time. Repr.(1993) 32 I.L.M. 1464. See also 94I.L.R.41.

45. See the letter of the Iraqi Foreign Minister (UN Doc.S/25905) of 6 June 1993. It should also be noted that while the Iraqi representative on the Boundary Commission participated in the first few meetings, he thereafter withdrew his participation.

46. See Arts.53 and 64 of the Vienna Convention on the Law of Treaties.

47. I.C.J. Rep. 1993. 325. 441. para.102:95 I.L.R. 1.159.Google Scholar

48. Idem, p.441. para.103; 95 I.L.R. 159.

49. Idem, p.442. para.107; 95 I.L.R. 160.

50. See The Times. 29 July 1995, p.8.Google Scholar

51. See idem. 12 Aug. 1995. p.13. As was noted above, the issue of the Bosnian arms embargo is now moot in the light of SC Res. 1021 (1995) which provides for lifting of the arms embargo.

52. See Gill, . op. cit. supra n.2. at pp.7479.Google Scholar

53. See Diplomatic and Consular Staff, supra n.15. at p.42 where the ICJ said: “Wrongfully to deprive human beings of their freedom and to subject them to physical constraints in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights.” Also in Namibia Advisory Opinion I.C.J. Rep. 1971.6.57 the ICJ stated that “denial [by South Africa] of fundamental human rights is a flagrant violation of the purposes and principles of the Charter”.

54. I.C.J. Rep. 1993. 325.440 at paras.101 and 102. See also 95 I.L.R. at 158.Google Scholar

55. See Gill, . op. cit. supra n.2. at p.79 (emphasis in original). Article 4 of the International Covenant on Civil and Political Rights sets out provisions in respect of which no derogation may be made even “in time of public emergency which threatens the life of the nation.”Google Scholar

56. See Gowlland-Debbas, “Security Council Enforcement Action and Issues of State Responsibility” (1994) 43 I.C.L.Q. 55,91. See also Gowlland-Debbas, . Collective Responses to Illegal Acts in International Law. United Nations Action in the Question of Southern Rhodesia (1990). pp.437441 and 459–460. See also the decision of the European Court of Justice (particularly the Opinion of Advocate General Jacobs) in Bosphorus Hava Yollari Turizm ve Ticaret AS v. Minister for Transport, Energy and Communications, Ireland (C-84/95), [1996] 3 C.M.L.R. 257 holding that a European Community Regulation (Council Reg.990/93) implementing S.C.Res. 820 did not violate the plaintiffs fundamental rights. Note that medical supplies and foodstuffs required for humanitarian purposes are always excluded from UN sanctions regimes. See in respect of Rhodesia. Res.253(1968) paras.3(d) & 4; Iraq—Res.661( 1990) paras.3(c) & 4. Res.666(1990) & Res.687(1991) para.20; the Federal Republic of Yugoslavia (Serbia & Montenegro) and the parts of Bosnia and Croatia under the control of Serb forces—Res.757( 1992) paras.4(c) & 5, Res.820(1993) para.12; Haiti—Res.917(1994) para.7(a) Nevertheless, certain parts of Res.820(1993) & 992(1995) raise the question as to whether the Council may have authorised the violation of the right to a fair hearing provided for in Article 14 of the International Covenant on Civil and Political Rights. Paragraphs 16 and 4 of those resolutions (respectively) provide that no vessels suspected of having violated or being in violation of the relevant Security Councils imposing sanctions on the Federal Republic of Yugoslavia (Serbia & Montenegro) or on the Serbian controlled parts of Bosnia-Herzegovina is to be allowed passage through installations, including river locks or canals within the territory of Member States (in particular through the locks of Iron Gates I system on the left hand bank of the Danube in Romanian territory—Res.992). If this is intended to deny access to vessels suspected of having been involved in previous violations of the sanctions regime, as opposed to those suspected to be presently attempting to violate the relevant resolutions (and this is a reasonable interpretation of those resolutions as other provisions of those resolutions deal with the right of States to take measures to avoid infringement of the resolutions), it is arguable that those concerned have a right to have their rights and obligations judicially determined and cannot simply be denied all rights of access on the basis of suspicion.Google Scholar

57. See Provost. “Starvation as a Weapon: Legal Implications of the UN Food Blockade Against Iraq and Kuwait” (1992) 30 ColJ.Trans.L. 577 who argues that starvation is prohibited by rules of international humanitarian law, in particular by Arts.54 and 70 of Protocol I to the Geneva Conventions. According to him these provisions have attained the status of customary international law.

58. See the Report of the Secretary General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993). UN Doc.S/25704, para.106, p.27. Repr. (1993) 32 I.L.M. 1159.

59. See Art.21 (4)d of the Statute of the Tribunal.

60. Art.24(l) of the Statute.

61. See paras.22–26 of the First Annual Report of the Tribunal to the General Assembly and the Security Council (29 Aug. 1994), UN Docs.A/49/432 and S/1994/1007. Also reproduced in (1994) Hag.Y.I.L. 187,197.

62. See the decision of the Appeals Chamber of the Tribunal in Tadić (IT–94–1–AR72) (1996) 35 I.L.M. 32.

63. One of the arguments put forward by the defendant in Tadić before the Tribunal, ibid. was that the establishment of the Tribunal was contrary to the general principle that a person is entitled to be tried by a tribunal or court “established by law”—See Art. 14(1) of the ICCPR. The Appeals Chamber held that the interpretation of that principle that requires a tribunal to be established by a legislature has no application in an international law setting. However, the Appeals Chamber held that other possible interpretations of the principle are that a tribunal must be established by a body with power to take binding decisions or that the tribunal must be established in accordance with the rule of law. The Chamber held that the establishment of the Tribunal satisfied these last two interpretations and therefore held that the Tribunal had been “established by law”. See idem, paras.41–48; (1996) 35 I.L.M. 32.46.

64. See e.g. the decision of the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Tadić. supra n. 18, where it was accepted that there are some limits to the power of the Security Council but it was not clearly accepted that there was any room for judicial control.

65. I.C.J. Rep. 1992. 3. 142:94 I.L.R. 478. 515.

66. I.C.J. Rep. 1971.6.45.

67. I.C.J. Rep. 1962.151.

68. See Watson, , op. cit. supra n.2. at pp.814.Google Scholar

69. 5 US (1 Cranch) 137 (1803).

70. See Syndical Général des Ingenieurs-Conseils. judgment of 26 June 1959. Conseil d'État [1959] DJur. 541. Discussed by Cappelletti in “The Mighty Problem of Judicial Review” (1980) 53 Calif, S.. L.Rev. 409 repr. in Cappelletti, The Judicial Process in Comparative Perspective (1989), p.150 at 155.Google Scholar Also the French Cour de Cassation has held that since under Art.55 of the Constitution treaties have “an authority superior to that of laws” all judges in France have the duty not to apply French legislation in conflict with a treaty law and with EC law in particular. See Administration des Douanes v. Société Cafés Jaques Vabre judgment of 24 May 1975. Cass. ch. mixte [1975] Dalloz [D.SJur.] 497Google Scholar; also published in Oppenheimer. The Relationship between European Community Law and National Law: The Cases, p.287.Google Scholar

71. Factortame Ltd v. Secretary of State for Transport [1991] A.C. 603. Note also that though the Japanese Constitution expressly gives the Supreme Court the power to determine the constitutionality of laws (Art.81) it is silent on whether inferior courts possess this power. It has, however, been held that despite this constitutional silence inferior courts do possess this power: Suzuki v. State (1952) 6 Supreme C.Rep. 783. See Nathanson. “Constitutional Adjudication in Japan” (1958) 7 AJ.Comp.L. 195.Google Scholar

72. Art.34(l) of the ICJ Statute.

73. Art.96(2) of the Charter.

74. Legality of the Threat or Use of Nuclear Weapons. Request by the General Assembly. Advisory Opinion of 8 July 1996 (1996) 35 I.L.M. 809.Google Scholar

75. The French amendment was rejected by 47 votes to 5 with 38 abstentions.

76. See e.g. the statement, in the General Assembly, of the UK representative: “In the first place, this amendment appears to my delegation to be unnecessary, because the International Court in considering the question which was formulated in the draft resolution recommended by the Fifth Committee will undoubtedly be able to take into consideration all relevant provisions of the Charter. Furthermore, it will of course be open, under the Statute of the Court, to any member State that wishes to do so to submit to the Court its views on the conformity with the Charter of the decisions taken in regard to the expenditures in the draft resolution.” Official Records of the General Assembly. 16th session. Plenary Meetings, Vol.1, 1086th meeting, p.l 152, para. 116. Some other delegations expressed the view that the French amendment was unnecessary because in their opinion what was at issue was not the validity of the UN action in creating the forces but the method of financing those forces. See e.g. the statements of the representatives of Canada (p.1152, paras.l 19–125). El Salvador, (p.1152. paras.146–148).Google Scholar and Ivory Coast (p.1154, para.151).Google Scholar

77. UN Doc.S/517 tabled at 194th meeting of the Security Council. 25th August 1947. see Official Records of the Security Council, Second Year, p.2193. At the 173rd meeting on the 1st of August 1947, in which the same matter was discussed, the French Representative had suggested that he would like “the Security Council to decide to submit our difficulty to the International Court of Justice and to obtain an opinion as to whether or not the Council is competent, in this matter …” See ibid at p. 1678. The proposal was not taken up at the time.

78. Only the Polish Representative questioned the competence of the ICJ to deliver such an opinion. He argued that the matter involved “a political question … on which a decision can be taken only by the Security Council … If we were to read every Article of the Charter we should never find one which permits consultation of the International Court of Justice in connexion with the competence of the Security Council.” Ibid at p.2222.

79. See the statement of the Australian Representative, ibid, at p.2216. See also the arguments canvassed at the earlier meetings of the Council in which the matter had been discussed.

80. See the statement of the Soviet Representative, ibid, at p.2210.

81. See the statement of the Australian Representative, ibid, at 2215.

82. See the statement of the Chinese Representative, ibid, at 2217–8. Note that the Chinese Representative also stated that if the question of the competence of the Security Council were pressed he would prefer an advisory opinion from the Court. See. ibid, at p.2067& p.2218.

83. There were 4 votes in favour (Belgium. France, the United Kingdom, and the United States of America), one against (Poland), and 6 abstentions (Australia, Brazil. China. Colombia. Syria, the Union of Soviet Socialists Republics). The draft resolution was therefore not adopted, having failed to obtain the affirmative votes of at least seven members of the Council as was then required by the Charter.

84. I.C.J. Rep. 1962. 151. 156.Google Scholar

85. Idem. p.157.

86. Idem. pp.163–168.

87. I.C.J. Rep. 1971. 6. 45.Google Scholar

88. Ibid (emphasis added).

89. The ICJ stated, idem. p.53. para.115. that “it had reached the conclusion that the decisions made by the Security Council in paragraphs 2 and 5 of Resolution 276 (1970). as related to paragraph 3 of Resolution 264 (1969) and paragraph 5 of Resolution 269 (1969). were in conformity with the purposes and principles of the Charter and in accordance with its Articles 24 and 25. The decisions are consequently binding on all States Members of the United Nations, which are thus under obligation to accept and carry them out.” (emphasis added)

90. See e.g. the statement of Judge Petren in idem. p. 131: “So long as the validity of the resolutions upon which Resolution 276 (1970) was based had not been established, it was clearly impossible for the Court to pronounce on [its] legal consequences.” See also the statement of Judge de Castro at text accompanying infra n.92.

91. E.g. in Lockerbie Judge Shahabuddeen pointed out. supra n.8. at p.28. that “in finding the applicable law [emph. added], the Court must take account of the resolution [748] in so far as it affects the enforceability of the rights for the protection of which Libya is seeking interim measures”. He also stated: “Whatever might have been the previous position, resolution 748 (1992) of the Security Council leaves the Court with no conclusion other than that to which it has come.” This, he states, is not because of any imposition of superior authority but because that resolution is part of the “applicable law” and “The validity of the resolution, though contested by Libya, has at this stage [emph. added] to be presumed” (ibid).

92. I.C.J. Rep. 1971.6.180.

93. See also the statement of Judge Weeramantry in Lockerbie. supra n.8. at pp.6566: “It is not for this Court to sit in review on a given resolution of the Security Council but it is within the competence of the Court and indeed its very function to determine any matters properly brought before it and in accordance with international law. Consequently, the Court will determine what the law is that is applicable to the case in hand and would not be deflected from this course by a resolution under Chapter VI.” He went on to say that “once we enter the sphere of Chapter VII. the matter takes on a different complexion … Thus any matter which is the subject of a valid Security Council decision under Chapter VII does not appear, prima facie, to be one with which the Court can properly deal” (emph. added).Google Scholar

94. I.C.J. Rep. 1993. 325. 442:95 I.L.R. 1.160 (emph. added).Google Scholar

95. Cappelletti, . “Judicial Review in Comparative Perspective”, in his op. cit. supra n.70. p. 117 at pp.139140.Google Scholar

96. Note the earlier quoted statement of Judge ad hoc Lauterpacht in Bosnian Genocide Convention, supra n.8, at p.442. that “as between the Applicant and the Respondent, the continuing validity of the embargo in its bearing on the Applicant has become a matter of doubt requiring further consideration by the Security Council”. It is not clear whether this was meant to indicate that only the Security Council can avoid its own illegal acts.

97. Lauterpacht, . “The Legal Effect of Illegal Acts of International Organisations”, in Cambridge Essays in International Law: Essays in Honour of Lord McNair (1965). p.88.Google Scholar See also Osieke. “The Legal Validity of Ultra Vires Decisions of International Organizations”. 77 A.J.I.L. 239 (1983). More generally see. Jennings, . “Nullity and Effectiveness in International Law”, in Cambridge Essays in International Law: Essays in Honour of Lord McNair. p.64 (1965).Google Scholar

98. I.C.J. Rep. 1971. 6. 53. para.l 15. See supra n.89. Emph. added.Google Scholar

99. See Franck, . The Power of Legitimacy Among Nations (1990) p.26.Google Scholar

100. I.C.J. 1992.3 at 32; 94 I.L.R. 478.515.Google Scholar

101. I.C.J. Rep. 1971.6. 340. para.34.Google Scholar

102. Idem, p.293. para. 112.

103. Idem. p.294. para. 116.

104. (1996) 35 I.L.M.32.43.

105. I.C.J. Rep. 1993.325. 439:95 I.L.R. 1.159.Google Scholar

106. I.C.J. Rep. 1992. 3. 66 & 176:94 I.L.R. 478.549.Google Scholar

107. The reasoning behind the view being discussed was well stated by the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Tadić. In dismissing this motion of the defendant in that case, the Trial Chamber of the Tribunal stated, supra n.l 8. at p. 11: “the making of a judgment as to whether there was such an emergency in the former Yugoslavia as would justify the setting up of the International Tribunal under Chapter VII is eminently one for the Security Council and only for it. It is certainly not a justiciable issue but one involving considerations of high policy and of a political nature. As to whether the particular measure of establishing the International Tribunal is. in fact likely to be conducive to the restoration of peace and security is. again pre-eminently a matter for the Security Council and for it alone and no judicial body, certainly not this Trial Chamber, can or should review that step.”

108. See infra for “acts of aggression”. Whether there are any procedural rules constraining the making of these decisions is beyond the scope of this article which deals with the substantive limits to the powers of the Security Council.

109. 369(1962)U.S. 186.217.Quotedby the Trial Chamberin Tadić supra.18.atpara.24.

110. On the question of the doctrine of the inherent limitations of the judicial function in international affairs, see Hersch Lauterpacht., The Function of Law in the International Community (1933). See also a paper by the present writer “The Role of the international Court of Justice in the Maintenance of International Peace” (1996) 8 African. J.Int. & Comp.L. 592.Google Scholar

111. See the 1947 Judgment of the International Military Tribunal at Nuremburg where it was said that “to initiate a war of aggression … is not only an international crime. It is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” Quoted by Bassiouni, M. Cherif and Ferencz, Benjamin B..in Part2.chap.l (Crimes Against Peace), of Bassiouni (Ed.). International Criminal Law (1986). Vol.1, pp. 174175.Google Scholar

112. (1976) 11(2) Y.B.1.L.C 95.

113. Report of the Rapporteur of Committee 111/3 (Enforcement Arrangements). Doc.881 III/3 146.12 U.N.C.I.O. Docs., p.505 (emphasis added).

114. See Broms, . “The Definition of Aggression”. 154 Rdc 299 (1977. 1)Google Scholar: Stone, . “Holes and Loopholes in the 1974 Definition of Aggression”. 71 A.J.I.L. 224 (1977).Google Scholar

115. It is also interesting to note that there were proposals within the ILC (in the context of its work on the draft Code of Crimes against Peace and the Draft Statute of the international Criminal Court) to give the Security Council the final say on whether there has been an act of aggression by a particular State. (See the Thirteenth Report on the Draft Code of Crimes Against the Peace and Security of Mankind. UN Doc.A/CN.4/466. presented to the ILC by Mr Dodou Thiam (Special Rapporteur) in 1995.) Art.l 5 of the draft articles contained in that report defines the crime of aggression but states in para.3 that “the Security Council may. in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances”. Para.5 of the same Art. provided: “Any determination by the Security Council as to the existence of an act of aggression is binding on national courts”: Report, pp.9–10. See also Art.27 of the Draft Statute for an International Criminal Tribunal ((1994) 33 l.L.M. 253) which provides: “A person may not be charged with a crime of. or directly related to an act of aggression … unless the Security Council has first determined that the State concerned has committed the act of aggression which is the subject of the charge.” The commentary to this Art. states that this provision is included because “the Working Group was of the view that if an act of aggression occurs, the responsibility of an individual would presuppose that a State had been held guilty of aggression, and such a finding would be for the Security Council to make [emph.added].” Certain States have expressed their discomfort with the provisions of the Draft Code of Crimes in this regard. See the Comments of Australia and Belarus, in particular, to Art. 15 (pp.10–11 of the Special Rapporteur's Report). Belarus wanted “some juridical procedure (for example, a requirement for the preliminary establishment [by the Security Council] of a commission of investigation), which would guarantee the objectivity of the Council's decision”. Australia, on its part, stated:” Under constitutional systems based on the separation of judicial power, a central element in an offence could not be left to be conclusively determined by an international executive agency such as the Security Council.” Article 16 (the equivalent of Art. 15 in the previous draft) of the Draft Code adopted by the ILC in 1996 does not contain a definition of aggression and omits the provision referred to above. Furthermore, the Commission generally sidesteps the issue of whether the Council is able to bind national courts in relation to the question of whether aggression has been committed. Part of the reason for this is that under the current draft, domestic courts, with the exception of those of the State alleged to have committed the aggression, are precluded from trying persons for the crime of aggression.

116. Note that the Security Council has never made the determination that a State has committed an act of aggression, not even on the invasion of Kuwait by Iraq. It has usually confined itself to determining that a situation is one that threatens the peace or is a breach of the peace. See Crawford, . “The ILC Adopts a Statute for an International Criminal Court” (1995) 89 A.J.l.L. 404. 411.Google Scholar

117. See Certain Expenses Opinion I.C.J. Rep. 1962. 151. 168.Google Scholar

118. See the separate opinion of Judge Shahabuddeen. supra n.8. at p.28. where he said that “the validity of the resolution, though contested by Libya, has. at this stage, to be presumed”.

119. Macdonald, . op. cit. supra n.2. at p.28.Google Scholar

120. Ibid.

121. See Certain Expenses I.C.J. Rep. 1962. 151. 168 (emph. added).Google Scholar

122. See Watson, op. cit. supra n.2. See also Ihe two advisory opinions relating to admissions to the UN where the ICJ said that the task of interpreting the Charter is an “essentially judicial task”—Admission of a State to the United Nations (Advisory Opinion) I.C.J. Rep. 1948.57: Competence of the General Assembly for the Admission of a State to the United Nations (Advisory Opinion) I.CJ. Rep. 1950. 4.Google Scholar

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