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?

International and Comparative Law Quarterly

Volumn 46, Issue 2, 1997, Pages 309-343

  Akande, Dapo ^a  

^a UNIVERSITY OF CAMBRIDGE   (United Kingdom)

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EID: 85007229889     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S0020589300060450     Document Type: Article

References (113)

1. Comprehensive sanctions have been imposed on Iraq (Res. 661 (1990)) and were imposed on the Federal Republic of Yugoslavia (Serbia and Montenegro)
2. (Res. 757 (1992)
3. Res. 787 (1992)
4. Res. 820 (1993).
5. Haiti (Res. 841 (1993).
6. Res. 861 (1993).
7. Res. 873 (1993). and
8. Res. 917 (1994)). and
9. the parts of the Republic of Bosnia and Herzegovina controlled by the Bosnian Serbs (Res. 820(1993) and
10. Res. 942 (1994) and
11. the (then) United Nations Protected Areas in the Republic of Croatia (Res. 820 (1993)).
12. Selective sanctions have also been imposed on Libya (Res. 748 (1992) and
13. Res. 883 (1993)) and
14. Sudan (Res. 1054 (1996) and
15. Res. 1070 (1996)) and
16. were imposed on the territory of Angola under the control of the UNITA rebel movement (Res. 864 (1993)).
17. Arms embargoes have been imposed in respect of Liberia (Res. 788 (1992)).
18. Somalia (Res. 733 (1992)).
19. Rwanda (Res. 918 (1994) and
20. Res. 1011 (1995)) and
21. the whole of the territory of the former Yugoslavia (Res. 713(1991)).
22. See Franck. “The ‘Powers of Appreciation’: Who Is the Ultimate Guardian of UN Legality?” (1992) 86 AJ.I.L. 519:
23. Reisman. “The Constitutional Crisis in the United Nations” (1993) 87 AJ.I.L. 83:
24. R. St J. Macdonald. “Changing Relations between the International Court of Justice and the Security Council of the United Nations” (1993) 31 Can. Y.I.L. 3:
25. Watson. “Constitutionalism. Judicial Review, and the World Court” (1993) 34 Harv.I.LJ. 1:
26. 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. 643;
27. Bedjaoui. The New World Order and the Security Council$Testing the Legality of its Acts (1994):
28. Brownlie. “The Decisions of Political Organs of the United Nations and the Rule of Law”, in Essays in Honour of Wang Tieya (1994). p.91:
29. 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. 33;
30. Alvarez. “Judging the Security Council” (1996)90 AJ.I.L. 1.
31. Alvarez, AJ.I.L., pp. 8–14.
32. See also Reisman. AJ.I.L., pp. 96–100.
33. Alvarez, AJ.I.L. pp.11–14.
34. Alvarez, AJ.I.L., pp.20 et seq.
35. Alvarez, AJ.I.L. p.23.
36. 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 quasi-legislative determinations.
37. Alvarez N.Y.U.J.I.L. & Pol., pp.28–36.
38. 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 obli-
39. 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.
40. I.C.J. Rep. 1992, 3, 61;
41. l.CJ. Rep. 1993. 325.440, para.101;
42. See Pleadings, Oral Arguments, Documents$The Namibia Advisory Opinion, Vol. 2, p.48.
43. Also reproduced by Bedjaoui, Pleadings, Oral Arguments, Documents$The Namibia Advisory Opinion, pp. 285–286.
44. See Bedjaoui. Pleadings, Oral Arguments, Documents$The Namibia Advisory Opinion. p.7.
45. I.C.J. Rep. 1992, 3, 65;
46. I.L.R., p.46:
47. See also Judge Fitzmaurice in the Namibia Advisory Opinion I.CJ. Rep. 1971, 6.294.
48. Hans Kelsen, the Law of the United Nations. A Critical Analysis of its Fundamental Problems (1951). p.294.
49. See Doc.l.G/l(a) 3 U.N.C.I.O. Docs., 24, (1 May 1945).
50. I.CJ. Rep. 1971.6.294.
51. repr. in 94 I.L.R. 1;
52. (1993) 32 I.L.M. 1425.
53. 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.
54. See also 94 I.L.R. 41.
55. I.CJ. Rep. 1993, 325, 441. para.102:
56. I.L.R., p.441. para.103;
57. I.L.R., p.442. para.107;
58. See The Times. 29 July 1995, p.8.
59. See The Times. 29. 12 Aug. 1995. p.13.
60. 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.
61. Also in Namibia Advisory Opinion I.CJ. 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”.
62. I.CJ. Rep. 1993.325.440 at paras.101 and 102.
63. See also 95 I.L.R. at 158.
64. See Gowlland-Debbas, “Security Council Enforcement Action and Issues of State Responsibility” (1994) 43 I.C.L.Q. 55, 91.
65. See also Gowlland-Debbas, Collective Responses to Illegal Acts in International Law. United Nations Action in the Question of Southern Rhodesia (1990), pp. 437–441 and 459–460.
66. [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.
67. 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;
68. Iraq$Res. 661 (1990) paras.3(c) & 4.
69. Res. 666 (1990)
70. Res. 687 (1991) para.20
71. Res. 820 (1993) para.12
72. Res. 917 (1994) para.7(a).
73. Nevertheless, certain parts of Res. 820(1993) & 992 (1995) raise the question as to whether the Council may have authorised the violation of the right to a fair hearing provided for in Article 14 of the International Covenant on Civil and Political Rights. Paragraphs 16 and 4 of those resolutions (respectively) provide that no vessels suspected of having violated or being in violation of the relevant Security Councils imposing sanctions on the Federal Republic of Yugoslavia (Serbia & Montenegro) or on the Serbian controlled parts of Bosnia-Herzegovina is to be allowed passage through installations, including river locks or canals within the territory of Member States (in particular through the locks of Iron Gates I system on the left hand bank of the Danube in Romanian territory$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.
74. See Provost, “Starvation as a Weapon: Legal Implications of the UN Food Blockade Against Iraq and Kuwait” (1992) 30 Col.J.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.
75. 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.
76. Repr. (1993) 32 I.L.M. 1159.
77. (1996) 35 I.L.M. 32.46.
78. I.CJ. Rep. 1992.3.142:
79. I.CJ. Rep. 1971.6.45.
80. I.CJ. Rep. 1962.151.
81. Discussed by Cappelletti in “The Mighty Problem of Judicial Review” (1980) 53 S. Calif. L.Rev. 409
82. repr. in Cappelletti, The Judicial Process in Comparative Perspective (1989), p.150 at 155.
83. Factortame Ltd v. Secretary of Slate for Transport [1991] A.C. 603.
84. 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.
85. See Nathanson. “Constitutional Adjudication in Japan” (1958) 7 AJ.Comp.L. 195.
86. 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.
87. I.CJ. Rep. 1962.151.156.
88. I.CJ. Rep., p.l57.
89. I.CJ. Rep., pp.163–168.
90. I.C.J. Rep. 1971.6.45.
91. I.C.J. Rep. 1971, 6, 180.
92. I.CJ. Rep. 1993, 325, 442;
93. Cappelletti. “Judicial Review in Comparative Perspective”
94. 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.
95. See also Osieke. “The Legal Validity of Ultra Vires Decisions of International Organizations”. 77 AJ.I.L. 239 (1983).
96. 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).
97. I.CJ. Rep. 1971.6.53. para.l 15.
98. See Franck. The Power of Legitimacy Among Nations (1990) p.26. 100.
99. I.CJ. 1992.3 at 32;
100. I.CJ. Rep. 1971.6. 340. para.34.
101. I.CJ. Rep., p.293. para. 112.
102. I.CJ. Rep. p.294. para.H6.
103. (1996) 35 I.L.M. 32.43.
104. I.CJ. Rep. 1993.325.439:
105. I.CJ. Rep. 1992.3.66 & 176:
106. 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.
107. 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 M. Cherif Bassiouni and Benjamin B. Ferencz. in Part 2. chap. 1 (Crimes Against Peace), of Bassiouni (Ed.). International Criminal Law (1986). Vol. 1, pp. 174–175.
108. (1976) 11(2) Y.B.1.L.C 95.
109. See Broms. “The Definition of Aggression”. 154 Rdc 299 (1977.1):
110. Stone. “Holes and Loopholes in the 1974 Definition of Aggression”. 71 A.J.I.L. 224 (1977).
111. 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].”
112. 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 AJ.I.L. 404. 411.
113. See Certain Expenses Opinion I.CJ. Rep. 1962. 151. 168.