Pace International Law Review Volume 7 Issue 2 Spring 1995 Article 2 April 1995 Second-Guessing the Security Council: The International Court of Justice and Its Powers of Judicial Review Ken Roberts Follow this and additional works at: https://digitalcommons.pace.edu/pilr Recommended Citation Ken Roberts, Second-Guessing the Security Council: The International Court of Justice and Its Powers of Judicial Review, 7 Pace Int'l L. Rev. 281 (1995) Available at: https://digitalcommons.pace.edu/pilr/vol7/iss2/2 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace International Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. ARTICLES SECOND-GUESSING THE SECURITY COUNCIL: THE INTERNATIONAL COURT OF JUSTICE AND ITS POWERS OF JUDICIAL REVIEW Ken Robertst TABLE OF CONTENTS INTRODUCTION ............................................ 282 I. SOURCES OF JUDiciAL REvIEw ...................... 286 A. Charter of the United Nations ................. 286 B. Statute of the International Court of Justice ... 289 C. Negotiating History ............................ 289 D. The Development of Judicial Review in Case L aw ............................................ 293 1. The Certain Expenses Case ................. 293 2. The Namibia Case .......................... 296 3. Lockerbie (ProvisionalMeasures) ........... 299 4. Bosnia v. Yugoslavia (Serbia and M ontenegro) ................................ 309 II. SHOULD THERE BE A POWER OF JUDIcIAL REvIEw?.. 312 t LL.B., University of Western Ontario; LL.M. in Public International Law, London School of Economics. Mr. Roberts is currently employed by the United Nations Food and Agriculture Organization in Dakar, Senegal. His work in Sene- gal consists of working as a legal assistant on a project for the Improvement of the Legal Framework for Fisheries Cooperation, Management and Development of Coastal States of West Africa. Mr. Roberts would like to thank Professor Rosalyn Higgins, Q.C. of the London School of Economics for her valuable assistance during the research and writing stages of this paper. He is also grateful to Professor Don- ald Buckingham of the University of Western Ontario for his suggestions, particu- larly with regard to defining the scope for judicial review power. Also, he thanks Fiona Menzies for helping him to produce the finished product and for general support throughout. 1 PACE INT'L L. REV. [Vol. 7:281 A. Traditional Arguments for and against Judicial Review ......................................... 312 1. The U.S. Example .......................... 312 2. The International Court of Justice .......... 313 B. A New World Order ............................ 315 C. Review by the Council Itself ................... 318 D. Security Council Interference with Court Functions ...................................... 319 E. Scope of Judicial Review ....................... 321 F. Problems with Implementation ................. 324 G. The Effects of Judicial Review ................. 325 CONCLUSION .............................................. 326 INTRODUCTION In the four decades following the end of World War II, the East-West political divide played a central role in the function- ing of the United Nations (hereinafter U.N.). The world balance of power during this period, reflected in the structure of the Se- curity Council's (hereinafter Council) permanent membership, often frustrated the Council's ability to act quickly and effec- tively to deal with perceived threats to the peace. With either side able to veto the use of armed force, it was only in unique situations such as the U.N. action in Korea that the Council was able to function as originally envisaged.1 However, events in recent years have transformed the global political arena quickly and drastically. The collapse of the 'iron curtain' and the movement of Russia and other former Soviet Republics to- wards democracy has led to tangible reductions in nuclear and conventional weapons and a marked decline in East-West ten- sion. The stage has been set for the emergence of a new world order, one in which there will likely be a greater role to be played by supranational institutions, particularly the U.N. The Secretary-General of the U.N. acknowledged this development in his report, An Agenda for Peace, addressing the changing 1 The Council was able to authorize a U.N. force to act in Korea due to the absence of the Soviet delegate at that meeting. The Soviet delegate was protesting the representation of China in the U.N. by the Nationalist Chiang Kai-Shek. If the Soviet delegate had been present at that meeting, he would have certainly used his veto power to block the resolution. See LELAND M. GOODRICH, KOREA: A STUDY OF U.S. POLICY IN THE UNITED NATIONS 114 (1956). https://digitalcommons.pace.edu/pilr/vol7/iss2/2 2 1995] INTERNATIONAL COURT OF JUSTICE context of international relations and the need for the U.N. to play a greater role in the prevention and resolution of conflicts and the preservation of peace. 2 One of the main beneficiaries of these developments has been the Council, which emerged from under the shadow of the permanent stalemate in existence since its creation. No longer paralyzed by superpower vetoes, the Council has displayed an unprecedented activism in the past five years,3 including a key role in the Gulf War. Some analysts portray this activism as proof of the emergence of a new world order in which our inter- national institutions will function quickly and effectively. Others claim that no new world order has yet emerged to re- place that of the Cold War. According to this line of reasoning, the Council was established based on the premise of a Soviet- Western bipolar model of world order, with the resultant bal- ance of power between the Soviet bloc states and the Western states~and their allies.4 No other checks were provided for at that time because no need was seen. Following the demise of the bipolar model, no political equilibrium has emerged to re- place these lost checks and balances. It has been suggested by many that such checks will be necessary to prevent infringe- ments on state sovereignty and to balance an unleashed Coun- cil determined to take advantage of its new found power in traditional or other ways.5 Iraq took this view with 2 BouTmos BouTRos-GHALI, AN AGENDA FOR PEACE 7-8 (1992). 3 See e.g. S.C. Res. 748, U.N. SCOR, 47th Sess., 3063d mtg. at 2-3, U.N. Doc. S/RES/3063 (1992) (economic and diplomatic sanctions on Libya); S.C. Res. 678, U.N. SCOR, 45th Sess., 2963d mtg. at 27, U.N. Doc. S/RES/2963 (1990) (authoriz- ing the use of force to expel Iraqi troops from Kuwait); S.C. Res. 770, U.N. SCOR, 47th Sess., 3106th mtg., U.N. Doc. S/RES/3106 (1992) (authorizing peacekeeping for humanitarian purposes in Bosnia and Herzegovina). 4 Edward McWhinney, The InternationalCourt as Emerging Constitutional Court and the Coordinate UN Institutions (Especiallythe Security Council): Impli- cations of the Aerial Incident at Lockerbie, 30 CAN. Y.B. Irr'L L. 261 (1992). S The Council issued the following statement at the summit meeting of Jan. 31, 1992: The absence of war and military conflicts amongst States does not in itself ensure international peace and security. The non-military sources of insta- bility in the economic, social, humanitarian and ecological fields have be- come threats to peace and security. The United Nations membership as a whole, working through the appropriate bodies, needs to give the highest priority to the solution of these matters. U.N. Doc. S/PV. 3046, 143 (1992). 3 PACE INT'L L. REV. [Vol. 7:281 regard to the Council's resolutions during and after the Gulf War.6 In light of these concerns the International Court of Justice (hereinafter the Court) has become the focus of much attention. As the principal judicial organ of the U.N.,7 it has been champi- oned as a possible check on unbridled Council power, the miss- ing link in order to restore some kind of balance to the U.N. system. There is some uncertainty with regard to the legal ba- sis for this suggestion. The question of whether the Court has the competence to review the legality of a Council decision has been considered. It was generally accepted for years by many experts that Council resolutions could not in fact be reviewed by the Court." However, recently it appears there has been a shift in popular opinion, largely based on the Provisional Measures decision in Lockerbie,9 towards a view that the Court may in- deed possess a power of judicial review. Before beginning an analysis of possible Court power in this area, it is necessary to clarify the sense in which the term 'judicial review' is being used. In the U.K., this term connotes an accepted power of the High Court to supervise the activities of government bodies on the basis of principles of public law.10 The power to review decisions is not with reference to a written constitution, but rather dependent on the decision being 'irra- tional' or 'unreasonable.' The question of how 'unreasonable' a decision or rule must be before it is liable to be quashed was dealt with in the 1948 King's Bench decision, Associated Provin- cial Picture Houses Ltd. v. Wednesbury Corporation." Lord 6 See Geoffrey Watson, Constitutionalism, Judicial Review, and the World Court, 34 HARv. INT'L L.J. 1 (1993). 7 U.N. CHARTER art. 92. By virtue of Article 92, "[t]he International Court of Justice shall be the principal judicial organ of the United Nations." Id. 8 See e.g. SHABTAI ROSENNE, THE LAW AND PRACTICE OF THE INTERNATIONAL COURT 74 (1985). Some authors today still reject the idea of the Court attempting to fill any gap in law-making power within the U.N.