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World Court Digest

III. The International Court of Justice
4. JUDGMENTS OF THE INTERNATIONAL COURT OF JUSTICE
4.1. General Questions

¤ 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. 80-81 D.O. Schwebel] 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?1

1See, 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.