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 OrderOn 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 Order1.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 ConventionInterpretation 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 ResolutionsUnited 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 731Resolution 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 748When 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 ICJA. 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 ICJ1. 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.
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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