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Introduction
The United Nations Security council is presently the most powerful
institutional body ever established at the global level. Its existence
and powers, as based on the United Nations Charter, firmly
evidence the
support of the entire international community. On September 10,
2003,
Libya agreed, separately with the United States and the United
Kingdom,
to withdraw the two cases that it had brought against those states
before the International Court of Justice [hereinafter ICJ]. By
this
mutual withdrawal, the Court lost the opportunity to hear the
merits of
and pronounce itself upon one of the most controversial issues
that it
had encountered since its inception, which had the potential for
changing the structure of the collective security system under the
supervision of the United Nations Security Council. The Court, in
the
course of resolving those disputes, would have to answer the
question of
whether it had the authority to invalidate the resolutions of the
Security Council, if it found them illegal. In this era, with new
frontiers opening for action, the Security Council has been
expanding
its role and authority. The Council, for good or ill, is
designating a
wider variety of cases as potential threats to the peace and
security of
the world, and has been more willing to authorize the use of force
in
addressing theses crises.
Marbury v. Madison is one of the leading cases from which the
genesis
of judicial review can be traced. It has become emblematic,
reaching far
beyond the Security Council open of what was actually discussed
and
decided by the Supreme Court of the United States of America. The
principle of judicial review of the constitutionality of acts of
Congress was not expressed in the U.S. Constitution, nor was it an
inevitable development. Other political or legal means for
controlling
the exercise of supreme legislative power might have been
preferred. But
John Marshall saw otherwise.
But in the realm of international law the proposition of law laid
down
in Marbury v. Madison is yet to be incorporated. While it is true
that
there have been some premonitions--the Provisional Measures
decision in
the Lockerbie case is one, there has been no ICJ decision which
clearly
states that international courts have powers of judicial review in
the
international legal system. Instead there have been some
contradictory
indications.
A. The Factual Context of the Order
On December 21, 1988, Pan American Flight 103, on its way to New
York's
John F. Kennedy Airport, exploded over Lockerbie, a town in
southern
Scotland. All 259 passengers on board were killed. Eleven
Lockerbie
residents also were killed as the shattered civilian carrier
crashed to
the ground. The investigation that followed indicated that Libya
and
Libyan agents were almost exclusively responsible for the bombing.
On
November 14, 1991, the United States handed down indictments
against
Abdel Basset Ali Al-Megrahi and Lamen Khalifa Fhimah for their
role in
the murder of the passengers and crew of Flight 103. The Scottish
Courts
also issued a warrant for the arrest of these two individuals
based on
the extensive evidence gathered. On September 19, 1989, the French
airliner Union des Transports Aerens (UTA) Flight 772, exploded
over
south eastern Niger, killing 171 passengers and crew. Although the
Islamic Jihad essentially claimed responsibility for the bombing,
the
investigation report submitted by the Congolese investigation team
and
endorsed by French judiciary officials stated that the bombing was
"conceived and financed by Libya."
B. The Legal Context of the Order
1.The U.N. Charter
The U.N. Charter, to which all parties to this dispute are
signatories,
prohibits aggression. Specifically, article 2(4) states: ?All members
shall refrain in their international relations from the threat or
use of
force against the territorial integrity or political independence
of any
state, or in any other manner inconsistent with the Purposes of
the
United Nations. Indirect aggression, sometimes referred to as
"low-intensity aggression" or "unconventional violence," falls
somewhere short of full-security council armed invasion across
national
borders and may include external assistance to insurgents, secret
warfare, massive human rights violations or narcotics trafficking.
The Security Council resolutions were responding to the Libyan
aggression specify article 2(4) as the basis for international
action.
According to Resolution 748, the Security Council was "convinced
that
the suppression of acts of international terrorism, including
those in
which states are directly or indirectly involved, is essential for
the
maintenance of international peace and security."
2. The Montreal Convention
Interpretation of the 1971 Montreal Convention for the Suppression
of Unlawful Acts against the Safety of Civil Aviation [hereinafter
"Montreal Convention"] Libya claimed that it had the right and the
duty
to investigate and prosecute the individuals and to exercise
jurisdiction over them. Specifically, the letter called for the
"implementation of article 14" of the Convention. Moreover, Libya
primarily relied upon article 14, which provides:
Any dispute between two or more Contracting States concerning the
interpretation or application of this Convention which cannot be
settled
through negotiation, shall, at the request of one of them, be
submitted
to arbitration. If within six months from the date of the request
for
arbitration the Parties are unable to agree on the organization of
the
arbitration, any one of those Parties may refer the dispute to the ICJ
by request in conformity with the Statute of the Court.
In addition to these two articles, several other provisions of the
Convention also bear upon the issue at hand. For example, article
5(2)
entitles Libya to establish jurisdiction over Al-Megrahi and
Fhimah
because they were present in Libyan territory. Article 5(3) allows
Libya
to exercise criminal jurisdiction over the individuals in
accordance
with Libyan national law. Article 7 requires Libya to submit the
case to
competent authorities for prosecution. Finally, article 11(1)
requires
the United States and the United Kingdom to provide assistance
with the
criminal proceedings against Al-Megrahi and Fhimah. Libya has
asserted
that each of these articles has been violated.
3. The Security Council Resolutions
United Nations Security Council Resolutions 731 and 748 provoked
Libya's request for provisional measures in the Lockerbie Incident
Cases. Together, these resolutions had envisaged punitive actions
against Libya for its failure to surrender Al-Megrahi and Fhimah,
the
two individuals allegedly involved in the bombing of Pan Am Flight
103.
a. Resolution 731
Resolution 731 requested Libya to comply with U.S., U.K. and
French
requests concerning the bombing of Pan Am Flight 103 and UTA
Flight 772.
Under the terms of the resolution, Libya was required to renounce
terrorism, to provide information regarding the individuals
involved in
the bombing of UTA Flight 772 and to surrender the individuals
involved
in the bombing of Pan Am Flight 103. None of the requests were
unusually
bold-except the request to surrender Al-Megrahi and Fhimah. This
was an
unprecedented request for the Security Council; it was the first
time
the Council had requested the surrender of a member nation's
nationals
as well as the first time the Council had ever directly implicated
a
member state in involvement in state-sponsored terrorism.
b. Resolution 748
When the requests of Resolution 731 were not adequately addressed
by
Libya, the Security Council adopted Resolution 748. This
resolution was
adopted under Chapter VII of the United Nations Charter and
imposed
mandatory sanctions on Libya. Specifically, Resolution 748 called
for
three types of actions. First, the resolution demanded the
surrender of
Al-Megrahi and Fhimah in compliance with paragraph three of
Resolution
731. Second, it required that Libya demonstrate its renunciation
of
terrorism by "concrete actions." Finally, the resolution imposed
specific sanctions. The sanctions included the prohibition of air
flights, prohibition of the sale or supply to Libya or its
nationals of
military weapons, ammunition, vehicles, equipment or parts and
prohibition of the supply to Libya or its nationals of military
training
or advice.
III. The Order of the ICJ
A. Pre-Order Events
A combination of events had led Libya to challenge the imposition
of
sanctions in the ICJ. The Libyans refused to surrender the
individuals
and then brought the Lockerbie Incident Cases before the ICJ for
three
reasons. First, Libya was concerned that to surrender Al-Megrahi
and
Fhimah would be tantamount to admitting guilt, a proposition the
Libyan
government was probably unwilling to face. Second, the refusal to
surrender the men and the following application to the ICJ were
attempts
to stall the prosecution and the sanctions. Finally, according to
Libya,
it could not surrender Al-Megrahi and Fhimah because Libyan
domestic law
prohibits the extradition of nationals. According to Ibrahim
Bishari,
Libya's Foreign Minister, Libya was ready to have the individuals
tried
"in front of a neutral court in any neutral country."
B. Arguments Before the ICJ
1. Propositions of law in favour of the ICJ exercising the power
of
judicial review.
The Security Council is "a political organ which acts for
political
reasons." Although in the Namibia Case the ICJ expressed that it
lacked
the power of judicial review with respect to Security Council
decisions,
it proceeded to review the validity of one such decision, clearly
contradicting its previous assertion. Indeed, ICJ Justices have
expressed that examining the validity and effect of Security
Council
decisions relevant to a case is paramount to its judicial
function, particularly because the political intervention of the
Security Council
in certain matters does not prevent the exercise of the ICJ?s
judicial
functions. Despite its political character, the Security Council
is
subject under Article 24(2) of the Charter to observe certain
limitations imposed by UN principles and purposes. One such
purpose is
to establish conditions under which respect for treaty obligations
and
other sources of international law can be maintained. In fact,
failure
to adopt a decision in accordance with said purpose relieves UN
Members
from their duty of compliance. As seen in the deliberations at the
UN
constituent conference, States deem that any interpretation of the
Charter made by an UN organ but not generally accepted is without
binding force. However, legal experts, the UNSG and several States
have denied said power of the Security Council. Security council
Resolutions are binding upon members of the United Nations as per
Article 25 of the Charter. Moreover, Article 24 ?confers on the
Security
council primary responsibility for the maintenance of
international
peace and security. The ICJ affirmed the importance of the
Security
council acting in accordance with international peace and security
in
the Namibia Case when it stated, ?[t]he only limitations [on the
Security Council] are the fundamental principles and purposes
found in
Chapter 1 of the Charter.? Maintaining international peace and
security
is the first purpose listed in Chapter 1.
Security Council Resolution 1497 concerning the situation in
Liberia is
instructive. Paragraph 7 of Resolution 1497 contained the same
wording
as Paragraph 7 of Resolution 2241, and Mexico, France and Germany
expressly stated that they abstained solely on the basis of
Paragraph 7.
Judge Lauterpacht in the Norwegian Loans Case held that it is
acceptable
to sever the invalid portion of an international instrument from
the
valid part, so long as the severed portion does not pertain to the
essence of the undertaking. In addition, the Charter does not
expressly
restrict the ICJ from making determinations in regards to the
Security
Council; however, Article 12 does expressly forbid the General
Assembly
from doing so.
2. Propositions of law in favour of the ICJ declining to exercise
the
power of judicial review.
Article 103 of the Charter of the United Nations provides: In the
event
of a conflict between the obligations of the Members of the United
Nations under the present Charter and their obligations under any
other
international agreement, their obligations under the present
Charter
shall prevail?. The UN Charter authorizes the Security Council to
act
on behalf of all United Nations members in order to maintain
international peace and security. Every United Nations member is
bound
by a Security Council resolution.
As an organ of the United Nations, the Security Council
independently
determines its own jurisdiction to act in pursuit of its
overarching
responsibility for the maintenance of international peace and
security.
Hence, the Security Council?s interpretation of the UN Charter is
not
open to question.
The UN Charter stipulates two conditions that govern Security
Council
resolutions. First, Article 39 provides that the Security Council
must
determine a breach of the peace before adopting a binding
resolution.
Second, Article 24(2) provides that the Security Council
resolution must
be consistent with the principles and purposes of the United
Nations.
However, the Charter confers upon UN organs the powers required to
duly
discharge their functions, including those which, though not
expressly
provided, are conferred by necessary implication as being
essential to
the performance of their duties. This holds true for the Security
Council, which holds the primary responsibility for the
maintenance of
international peace and security as it is empowered to take
whatever
measures it deems necessary to fulfil its responsibility.
The Security Council has ample powers to determine the existence
of
threats to peace, and such determination cannot be questioned.
Indeed,
no procedures exist for determining the validity of acts of UN
organs.
Moreover, this Court has recognized the inherent limitations to
its
judicial function, and that it lacks the power of judicial review
of
Security Council decisions. In fact, neither the Charter nor the
ICJ
Statute nor their travaux preparatoires indicate that such power
was to
be attributed to the Court.
C. The Order
The Orders of the Court were handed down on April 14, 1992. The
request
for the indication of provisional measures was denied by a vote of
eleven to five. The Order provides key insights into both the
reasoning
behind the decision and the future prospects for the decision on
the
merits. Perhaps the most important event cited in the Order was
the
adoption of Resolution 748 which imposed sanctions. Resolution 748
is a
binding resolution made pursuant to Chapter VII of the Charter it
therefore carries tremendous weight as international authority.
Because
of the timing of oral arguments before the Court, its subsequent
consideration of the issues, and the Security Council's
intermediate
adoption of Resolution 748, the United States gave the text of the
resolution, along with a letter, to the Court on April 2, 1992. In
the
letter, the United States contended that the Council's adoption of
the
resolution was an additional reason to deny provisional measures.
Libya,
given an opportunity, pursuant to article 62 of the Rules of the
Court,
to respond to the implications of the resolution, reiterated the
comments it made at oral argument.
The Court rejected Libya's contentions and stated five reasons
that
Resolution 748 could not be countermanded or superseded by an
order
indicating provisional measures. First, the Court noted that under
article 25 of the Charter, Libya, the United States and all other
Member
States are obliged to carry out decisions of the Security Council.
Second, the Court stated that, at least prima facie, Resolution
748 was
a binding decision. Third, the Court held that obligations arising
under
article 25 and Chapter VII supersede obligations arising under the
Montreal Convention. Fourth, while not deciding the legal effect
of
Resolution 748, the Court stated. Whatever the situation previous
to the
adoption of that resolution 748, the rights claimed by Libya under
the
Montreal Convention cannot be regarded as appropriate for
protection by
the indication of provisional measures. Finally, the Court stated
that
the indication of provisional measures would likely impair the
rights of
the United States vis-à-vis the adoption and implementation of
Resolution 748.
In addition to the reasons specific to Resolution 748, the Court
stated
another reason that the indication of provisional measures would
be
inappropriate. "[The] right of the Parties to contest such issues
[of
fact or law relating to the merits] at the stage of the merits
must
remain unaffected by the Court's decision." This language
indicates
that, apart from Resolution 748, certain issues presented by Libya
are
so fundamental, both to a determination whether to indicate
provisional
measures and a decision on the merits, that it would be impossible
to
consider them at this preliminary stage of the case .Also important is that the Order did not deny the request for the
indication of provisional or interim measures because the Court
found
that it lacked prima facie jurisdiction. The Court denied interim
measures on other grounds, inferentially, it found jurisdiction,
at
least at this preliminary stage, based on the Montreal Convention.
However, the Court's finding of jurisdiction in this preliminary
stage
is no guarantee that the Court will find jurisdiction in the
merits
phase.
IV. Analysis of the
Judgment
Discussion of judicial review must focus primarily on its
implications
for the system of collective security as established by the UN
Charter,
rather than on academic speculations analogizing the United
Nations to
various domestic systems and their doctrines of separation of
powers.
The current fascination of recent commentators with such
constitutional
parallels demonstrates that this elementary principle has not been
adequately considered.
This analysis must start from Article 25 of the Charter, which
obliges
the Member States to comply with mandatory resolutions. Similarly,
Article 48 of the Charter obliges members to implement the
decisions of
the Security Council for the maintenance of international peace
and
security according to the Security Council's determination. The
mere
existence of judicial review would have a dramatic impact on the
functioning of the UN security system, for neither the Charter nor
the
ICJ Statute vests the ICJ with any powers to strike down binding
decisions adopted pursuant to Chapter VII. During the travaux
préparatories preceding the adoption of the UN Charter, Belgium
proposed
an amendment that would have allowed a State, whose "essential
rights"
might be infringed by a resolution of the Security Council, to
request
an advisory opinion by the ICJ. Later, however, Belgium withdrew
this
proposal. The lack of specific annulment powers means that any ICJ
judicial scrutiny must focus on the invalidity of a Security
Council
decision and not on mere illegality as such. Any authoritative
determination regarding Article 39 or other provisions of Chapter
VII,
both as to facts and law, cannot be questioned by the ICJ, if
covered by
the Security Council's competencies. This power of authoritative
construction refers to interpretation as well as to the
appreciation of
facts. Beyond those competencies authoritatively concretized in
the
Charter, the ICJ may be barred from inquiring into the legality of
a
Security Council's decision to the extent that legal defects do
not
destroy its validity and its binding effect under Article 25 and
Article
48 of the Charter.
The liberal challenge to judicial review is not merely overstated.
Its
basic presuppositions are open to question. Opponents of judicial
review
should not be given the benefit of the doubt on the supposed
limitations
faced by the "illiberal" UN order. History does not demonstrate
that
illiberal systems or systems characterized by heterogeneity cannot
have
a functioning judiciary capable of some constitutional review, or
that
even if this were so for domestic systems, the same holds true for
the
United Nations. Historical support for the latter supposed truism
is
clouded by the ICJ's successful assertions of constitutional
review in
various advisory opinions. Given the many modes for Council action
and
Court review, it is unwarranted to assume that "judicial review"
by the ICJ is inconceivable absent direct penetration or "direct effect"
of
international law in domestic legal orders. If this feature is
what
liberals contend is required for effective judicial review, at
least
some ostensibly "liberal" states lack
"judicial
review" so
narrowly
conceived.
Political issues obviously are implicated in the Libya case. At
the
heart of the dispute is the Council's power of exclusive
jurisdiction
over the maintenance of international peace and security. In a
sense,
then, the Lockerbie Incident Cases and the Order implicate an
issue
committed to a co-ordinate branch as well as an issue that has
previously been determined by the Council. Applying the logic of a
Supreme Court, before the ICJ can determine whether this is a
political
question, it must first reach the merits of the case and decide
whether
the Court has the power to preside over an issue which is, at
least in
part, political. In order to deny the request for provisional
measures,
the Court had to determine not only that it had the power to
review a
Security Council decision, but also that the Council's decision
trumped
judicial concerns. In rejecting the request for provisional
measures and
upholding Resolution 748, the Court indicated that there are some
"political questions" which may be non-justifiable, but also
indicated
that it reserves the right to determine when politics and prudence
will
be outweighed by the demands of justice.
Conclusion
The question of judicial review should not remain a sterile debate
between "legalists" and "hard-headed realists." Both sides need to
recognize that they are engaged, with the Court and the Council,
in the
pursuit of an effective, but legitimate, collective security
scheme.
Both the Council and the Court are engaged in supervising rule
compliance by members. Both must maintain a "delicate" balance
"between
securing continued co-operation from the members on the one hand,
and
obtaining and maintaining the integrity" of their roles as
supervisors
on the other. If the simultaneous pursuit of these goals is
required for
"institutional legitimacy," both Council and Court have roles to
play
and need to coexist in a state of inevitable and sometimes
desirable
tension.
No one model of judicial review for Council/Court interaction has
yet
been articulated by the Court and perhaps no one model is
appropriate.
In the meantime, reality cannot be denied. Aspects of "review" by
the
Court are already here and, especially through the Court's
advisory
jurisdiction, have been here for some time. They are as real--and
probably as inevitable--as the Security Council's need to
represent the
interests of the effective police powers and to respond flexibly
to
crises.
The World Court exists today as one of many possible (de)legitimating
agencies. Through its advisory and contentious case capacities, it
has
"cued" other actors as to lawful possibilities and expressed
important
community aspirations--while also sending a message that affirms
its
view of itself. The Court, as well as other national and
international adjudicative bodies, will be required, sooner or
later, to pass on legal
issues emerging from the Security Council's proliferating legal
determinations and precedents. The ICJ's judges will almost
certainly
"expound" on at least some issues of Council/Court overlap and
will
continue to operate in an "expressive mode" if for no other
reason than
that they are members of a "court" charged with the interpretation
of
"law" who also tend to share an "internationalist sensibility."-
The prospects for Court/Council interaction will almost certainly
not be
conclusively determined in the course of the pending Lockerbie or
Bosnia
cases. Nor are the possible future modes of ICJ review either
limited to
those suggested by the Marbury analogy or necessarily constrained
by
real politik to those dictated by the Council. The Council and the
Court
face a continuum of options and interpretive modes for which both
domestic systems and other international tribunals serve as
sources of
inspiration. Judicial review is an evolutionary process, emerging
from a
dialogue among all international actors. Fortunately, the Court
has a
ready body of comparatives expertise to draw upon to evolve its
own
powers.
Given the many modes of Council action with potential legal effect
and
the many possible modes of World Court "review," the issue need
not be
seen as a choice between hegemonic (or systemic) needs and the
"rule of
law" Even more activist forms of judicial review than have
appeared to date may prove to be neither utopian nor
calamitous--especially if the
permanent members of the Security Council come to appreciate that
they
have long-term interests in pursuing peace through law.
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The
Lockerbie Incident Cases: Judicial Review By The ICJ
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The
author can be reached at:
adityakrishnamurthy@legalserviceindia.com /
