|III.||The International Court of Justice|
|2.||THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE|
|2.2.||Conditions for a Decision on the Merits|
|2.2.5.||Simultaneous seizing of the Court and the Security Council|
Review of Security Council resolutions
Questions of Interpretation and Application
of the 1971 Montreal Convention Arising
from the Aerial Incident at Lockerbie
(Libya v. United Kingdom) Preliminary
Objections, Judgment of 27 February 1998
I.C.J. Reports 1998, p. 9
[pp. 23-24] 37. In the present case, the United Kingdom has contended, however, that even if the Montreal Convention did confer on Libya the rights it claims, they could not be exercised in this case because they were superseded by Security Council resolutions 748 (1992) and 883 (1993) which, by virtue of Articles 25 and 103 of the United Nations Charter, have priority over all rights and obligations arising out of the Montreal Convention. The Respondent has also argued that, because of the adoption of those resolutions, the only dispute which existed from that point on was between Libya and the Security Councll; this, clearly, would not be a dispute falling within the terms of Article 14, paragraph 1, of the Montreal Convention and thus not one which the Court could entertain.
38. The Court cannot uphold this line of argument. Security Council-resolutions 748 (1992) and 883 (1993) were in fact adopted after the filing of the Application on 3 March 1992. In accordance with its established jurisprudence, if the Court had jurisdiction on that date, it continues to do so; the subsequent coming into existence of the above-mentioned resolutions cannot affect its jurisdiction once established (cf. Nottebohm, Preliminary Objection, Judgment, I.C.J. Reports 1953, p. 122; Right of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 142).1
[pp. 25-26] 43. Libya furthermore draws the Court's attention to the principle that "The critical date for determining the admissibility of an application is the date on which it is filed" (Border and Transborder Armed Actions, (Nicaragua v. Honduras), Jurisdiction and Admissibility, I.C.J. Reports 1988, p. 95, para. 66). It points out in this connection that its Application was filed on 3 March 1992; that Security Council resolutions 748 (1992) and 883 (1993) were adopted on 31 March 1992 and 11 November 1993, respectively; and that resolution 731 (1992) of 21 January 1992 was not adopted under Chapter VII of the United Nations Charter and was only a mere recommendation. Consequently, Libya argues, its Application is admissible in any event.
44. In the view of the Court, this last submission of Libya must be upheld. The date, 3 March 1992, on which Libya filed its Application is in fact the only relevant date for determining the admissibility of the Application. Security Council resolutions 748 (1992) and 883 (1993) cannot be taken into consideration in this regard since they were adopted at a later date. As to Security Council resolution 731 (1992), adopted before the filing of the Application, it could not form a legal impediment to the admissibility of the latter because it was a mere recommendation without binding effect, as was recognized moreover by the United Kingdom itself. Consequently, Libya's Application cannot be held inadmissible on these grounds.
45. In the light of the foregoing, the Court concludes that the objection to admissibility derived by the United Kingdom from Security Council resolutions 748 (1992) and 883 (1993) must be rejected, and that Libya's Application is admissible.2
[pp. 62-63 S.O. Rezek] The argument that judicial scrutiny of a political organ's interpretation of the Charter can only take place in the exercise of advisory jurisdiction is totally without scientific foundation. What is true is only that the system does not authorize any State either to consult the Court on a constitutional issue involving the United Nations or to raise such an issue by means of direct action against the Organization or against an organ such as the Security Council, However, the constitutional issue - relating, say, to a case of excès de pouvoir - can perfectly well arise in the context of a dispute between States. It is quite natural, within such a framework, that an application should be directed against a State which, for some reason, has taken it upon itself to execute the Council's act although that act was challenged from the viewpoint of the Charter or of any rule of general international law. The respondent in the proceedings, therefore, is not the legislator but the immediate executor of the law, as is normally the case in domestic jurisdictions within the framework of a procedure of habeas corpus and in the context of civil actions for the protection of rights other than individual freedoms.
4. The Court has full jurisdiction to interpret and apply the law in a contentious case, even when the exercise Of such jurisdiction might entail the critical scrutiny of a decision of another organ of the United Nations. It does not directly represent the States Members of the Organization (this fact has been stated before the Court and attempts have been to infer from it the consequence that the Court is not competent to undertake a review of resolutions of the Council), but precisely because it is impermeable to political injunctions the Court is the interpreter par excellence of the law and the natural forum for reviewing the acts of political organs in the name of the law, as is the rule in democratic régimes.
It would be surprising indeed if the Security Council of the United Nations were to enjoy absolute and unchallangeable power in respect of the rule of law, a privilege not enjoyed, in domestic law, by the political organs of most of the founding Members and other Members of the Organization, starting with the respondent State.3
[pp. 73-74 D.O.Schwebel] That last spectre raises the question of whether the Court is empowered to exercise judicial review of the decisions of the Security Council, a question as to which 1 think it right to express my current views. The Court is not generally so empowered, and it is particularly without power to overrule or undercut decisions of the Security Council made by it in pursuance of its authority under Articles 39, 41 and 42 of the Charter to determine the existence of any threat to the peace, breach of the peace, or act of aggression and to decide upon responsive measures to be taken to maintain or restore international peace and security,
The Court more than once has disclaimed possessing a power of judicial review. In its Advisory Opinion in the case concerning Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), the Court declared:
"In the legal systems of States, there is often some procedure for determining the validity of even a legislative or governmental act, but no analogous procedure is to be found in the structure of the United Nations. Proposals made during the drafting of the Charter to, place the ultimate authority to interpret the Charter in the International Court of Justice were not accepted; the opinion which the Court is in course of rendering is an advisory opinion. As anticipated in 1945, therefore, each organ must, in the first place at least, determine its own jurisdiction. If the Security Council, for example, adopts a resolution purportedly for the maintenance of international peace and security and if, in accordance with a mandate or authorization in such resolution, the Secretary-General incurs financial obligations, these amounts must be presumed to constitute 'expenses of the Organization'." (I.C.J. Reports 1962, p. 168.)
In its Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), the Court reiterated that: "Undoubtedly, the Court does not possess powers of judicial review or appeal in respect of the decisions taken by the United Nations organs concerned." (I.C.J. Reports 1971, p. 45.)
It should be noted that the Court made these holdings in advisory proceedings, in which the Security Council and the General Assembly are entitled to request the Court's opinion "on any legal question". The authority of the Court to respond to such questions, and, in the course of so doing, to pass upon relevant resolutions of the Security Council and General Assembly, is not disputed. Nevertheless, if the Court could hold as it did in advisory proceedings, a fortiori in contentious proceedings the Court can hardly be entitled to invent, assert and apply powers of judicial review.4
[p. 75 D.O. Schwebel] The texts of the Charter of the United Nations and of the Statute of the Court furnish no shred of support for a conclusion that the Court possesses a power of judicial review in general, or a power to supervene the decisions of the Security Council in particular. On the contrary, by the absence of any such provision, and by according the Security Council "primary responsibility for the maintenance of international peace and security , the Charter and the Statute import the contrary. So extraordinary a power as that of judicial review is not ordinarily to be implied and never has been on the international plane. If the Court were to generate such a power, the Security Council would no longer be primary in its assigned responsibilities, because if the Court could overrule, negate, modify - or, as in this case, hold as proposed that decisions of the Security Council are not "opposable" to the principal object State of those decisions and to the object of its sanctions - it would be the Court and not the Council that would exercise, or purport to exercise, the dispositive and hence primary authority.5
[pp. 76-77 D.O. Schwebel] It does not follow from the facts that the decisions of the Security Council must be in accordance with the Charter and that the International Court of Justice is the principal judicial organ of the United Nations, that the Court is empowered to ensure that the Council's decisions do accord with the Charter. To hold that it does so follow is a monumental non sequitur, which overlooks the truth that, in many legal systems, national and international, the subjection of the acts of an organ to law by no means entails subjection of the legality of its actions to judicial review. In many cases, the system relies not upon judicial review but on self-censorship by the organ concerned or by its members or on review by another political organ.
Judicial review could have been provided for at San Francisco, in full or lesser measure, directly or indirectly, but both directly and indirectly it was not in any measure contemplated or enacted. Not only was the Court not authorized to be the ultimate interpreter of the Charter, as the Court acknowledged in the case concerning Certain Expenses of the United Nations. Proposals which in restricted measure would have accorded the Court a degree of authority, by way of advisory proceedings, to pass upon the legality of proposed resolutions of the Security Council in the sphere of peaceful settlement - what came to be Chapter VI of the Charter - were not accepted. What was never proposed, considered, or, so far as the records reveal, even imagined, was that the International Court of Justice would be entrusted with, or would develop, a power of judicial review at large, or a power to supervene, modify, negate or confine the applicability of resolutions of the Security Council whether directly or in the guise of interpretation.6
[pp. 80-81 D.O. Schwebel] The conclusions to which the travaux préparatoires and text of the Charter lead are that the Court was not and was not meant to be invested with a power of judicial review of the legality or effects of decisions of the Security Council. Only the Security Council can determine what is a threat to or breach of the peace or act of aggression under Article 39, and under Article 39 only it can "decide what measures shall be taken ... to maintain or restore international peace and security". Two States at variance in the interpretation of the Charter may submit a dispute to the Court, but that facility does not empower the Court to set aside or second-guess the determinations of the Security Council under Article 39. Contentious cases may come before the Court that call for its passing upon questions of law raised by Council decisions and for interpreting pertinent Council resolutions. But that power cannot be equated with an authority to review and confute the decisions of the Security Council.
It may of course be maintained that the Charter is a living instrument; that the present-day interpreters of the Charter are not bound by the intentions of its drafters of 50 years ago; that the Court has interpreted the powers of the United Nations constructively in other respects, and could take a constructive view of its own powers in respect of judicial review or some variation of it. The difficulty with this approach is that for the Court to engraft upon the Charter régime a power to review, and revise the reach of, resolutions of the Security Council would not be evolutionary but revolutionary. It would be not a development but a departure, and a great and grave departure. It would not be a development even arguably derived from the terms or structure of the Charter and Statute. It would not be a development arising out of customary international law, which has no principle of or provision for judicial review. It would not be a development drawn from the general principles of law. Judicial review, in varying forms, is found in a number of democratic polities, most famously that of the United States, where it was developed by the Supreme Court itself. But it is by no means a universal or even general principle of government or law. It is hardly found outside the democratic world and is not uniformly found in it. Where it exists internationally, as in the European Union, it is expressly provided for by treaty in specific terms. The United Nations is far from being a government, or an international organization comparable in its integration to the European Union, and it is not democratic.
The conclusion that the Court cannot judicially review or revise the resolutions of the Security Council is buttressed by the fact that only States may be parties in cases before the Court. The Security Council cannot be a party. For the Court to adjudge the legality of the Council's decisions in a proceeding brought by one State against another would be for the Court to adjudicate the Council's rights without giving the Council a hearing, which would run counter to fundamental judicial principles. It would run counter as well to the jurisprudence of the Court. (Cf. East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, pp. 100-105; Monetary Gold Removed from Rome in 1943, Judgment, I.C.J. Reports 1954, pp. 32-33) Any such judgment could not bind the Council, because, by the terms of Article 59 of the Statute, the decision of the Court has no binding force except between the parties and in respect of that particular case.
At the same time, a judgment of the Court which held resolutions of the Security Council adopted under Chapter VII of the Charter not to bind or to be "opposable" to a State, despite the terms of Article 25 of the Charter, would seriously prejudice the effectiveness of the Council's resolutions and subvert the integrity of the Charter. Such a holding would be tantamount to a judgment that the resolutions of the Security Council were ultra vires, at any rate in relation to that State. That could set the stage for an extraordinary confrontation between the Court and the Security Council. It could give rise to the question, is a holding by the Court that the Council has acted ultra vires a holding which of itself is ultra vires?7
[pp. 97-98 D.O. Oda] 42. The question remains whether these Security Council resolutions, particularly resolutions 748 (1992) and 883 (1993), which were adopted after the filing of the Application in this case, bear on the present case as brought by Libya. In other words, the question of whether Libya's 3 March 1992 Application has become without object after the adoption of these 31 March 1992 and 11 November 1993 Security Council resolutions is distinct from the case as presented by Libya. If there is any dispute in this respect, it could be a dispute between Libya and the Security Council or between Libya and the United Nations, or both, but not between Libya and the United Kingdom.
The effect of the Security Council resolutions (adopted for the aim of maintaining international peace and security) upon member States is a matter quite irrelevant to this case and the question of whether Libya's application is without object in the light of those resolutions hardly arises.8
[p. 111 D.O. Jennings] That there is no power of judicial review of Security Council decisions under Chapter VII of the Charter is not merely because of the dictum of the Court in the Namibia case. The position is established by the provisions of the Charter itself. Moreover it is evident from the records of San Francisco that a power of judicial review was proposed and rejected by the drafting conference. The Court is not a revising body, it may not substitute its own discretion for that of the Security Council; nor would it in my view be a suitable body for doing that; nor is the forensic adversarial system suited to the making of political decisions.
The legal position is therefore to my mind very clear. The function of the principal judicial organ of the United Nations is to apply the law laid down in the Charter of the United Nations. The Security Council is given primary responsibility for the maintenance of the peace; its decisions under Chapter VII are binding decisions, and all Members of the United Nations have agreed to carry them out; and Article 103 provides that obligations under the Charter shall prevail in the event of a "conflict" between those obligations.
|1||Identical with Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. United States of America), Preliminary Objections, Judgment of 27 February 1998, pp. 128-129, 36-37.|
|2||Identical with Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. United States of America), Preliminary Objections, Judgment of 27 February 1998, pp. 130-131, 42-44.|
|3||See, mutatis mutandis, Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. United States of America), Preliminary Objections, Judgment of 27 February 1998, I.C.J. Reports 1998, p. 115.|
|4||See, mutatis mutandis, Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. United States of America), Preliminary Objections, Judgment of 27 February 1998, I.C.J. Reports 1998, p. 115.|
|5||See, mutatis mutandis, Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. United States of America), Preliminary Objections, Judgment of 27 February 1998, I.C.J. Reports 1998, p. 115.|