Home
| Databases
| WorldLII
| Search
| Feedback
University of New South Wales Law Journal Student Series |
JUDICIAL GUARDIANSHIP OF GLOBAL RIGHTS: TO WHAT EXTENT WOULD AFFIRMING THE POWERS OF JUDICIAL REVIEW AFFORDED TO THE INTERNATIONAL COURT OF JUSTICE OVER THE SECURITY COUNCIL INCREASE GLOBAL HUMAN RIGHTS PROTECTIONS?
IONA LINDSAY
‘In the equilibrium of forces underpinning the structure of the United Nations within the evolving international order, is there any conceivable point beyond which a legal issue may properly arise as to the competence of the Security Council to produce such overriding results? If there are any limits, what are those limits and what body, if other than the Security Council, is competent to say what those limits are?’[1]
In his separate opinion in Lockerbie Provisional Measures, Shahabuddeen J succinctly summarises the crux of the debate to which this essay aims to contribute. Indeed, as his musing allude, no conclusive answer has been reached as to whether the decisions of the Security Council (‘SC’) can be subjected to legal review, nor whether if such review, if possible, would even be desirable to implement.
In this context, the following essay endeavours to provide fresh insight into this debate by evaluating how effective judicial review powers, if granted to the International Court of Justice (‘ICJ’), would be in vindicating global human rights. To do as such, after the necessary context has first been presented, Part II of this essay will analyse whether the technical and normative bases of affording the ICJ powers of judicial review indeed exist. Part III will then examine the extent to which such powers could materially improve human rights protections. Part IV finally concludes by finding that affording limited powers of judicial review of the SC to the ICJ is indeed technically and normatively justifiable, and would indeed promote the furtherance of human rights. However, the analysis as set out necessarily concedes that such powers cannot be evaluated in isolation. An acknowledgment of its limitations, and of the potential comparative utility of other mechanisms for protecting human rights must be considered as part of any effectiveness evaluation. Thus, overall, whilst affirming the ICJ’s power of judicial review over SC resolutions would mark an undeniable improvement of the status-quo, such reform does not by itself represent a miracle solution, instead representing simply a small step, or at least a starting point, in what must be a series of reforms that contribute to the vindication of human rights globally.
To begin, however, it is first important to outline the relevant context for the analysis outlined in this essay.
Firstly, the Charter of the UN makes clear that the organisation was established with a central purpose of ‘promoting’ and ‘encouraging’ respect for human rights.[2] The United Nations (‘UN’) was founded in the wake of the atrocities of World War II, in which the Nazi Regime left the world order horrified, and the inherent value in human dignity firmly realised by global stakeholders. In fact, Spijkers argues that it was with the establishment of the UN, and the General Assembly’s subsequent Universal Declaration of Human Rights in 1948, that the ‘humanisation’ of international law began.[3] Indeed, consequentialist theories deriding human rights as ‘nonsense upon stilts,’[4] a mere hindrance to the expediency and efficiency required to create the ‘greatest happiness for the greatest number,’[5] have long since been rejected. Instead, as Dworkin succinctly puts, ‘liberty’s value lies on a different scale,’ and cannot be measured ‘case by case’ against ordinary politics in a consequentialist manner.[6] Instead, the ‘general principles of respect for human dignity... have become of such paramount importance as to permeate the whole body of international law.’[7]
Yet, arguably, despite its noble beginnings, the UN is steering away from this functional goal, with the SC firmly at its helm. For example, the SC has been accused before the ICJ of contributing to the ethnic cleansing of Bosnians,[8] and has been found by the European Court of Justice (‘ECJ’) to have violated the fundamental rights of a suspected terrorist through the application of its sanction procedures.[9] Thus, whilst international organisations were once considered ‘the salvation of mankind,’[10] history has made paramount that they are equally capable of committing wrongs.[11]
This fallibility has only become more relevant in recent years, as post-9/11 the SC has marched at the forefront of the global ‘fight against international terrorism,’[12] utilising its authority in ‘an almost unprecedented agglomeration of power.’[13] Indeed, whilst, during its first 45 years of existence, the SC may have been ‘largely paralysed’ as a result of the Cold War,[14] this is evidently no longer the case. The SC has taken measures far beyond the vision of the original drafters, including establishing criminal tribunals and administering territories such as Kosovo and East Timor.[15] As Von Schorlemer poignantly puts it, ‘the history of international relations shows that the Security Council is the most influential and powerful institution ever created,’[16] exercising powers almost matching sovereign states.[17]
Thus, with its increased remit, and seemingly increased propensity for wrongdoing, the question of how the accountability and legitimacy of the SC may be improved, so that human rights can be adequately vindicated, is irrefutably significant. Judicial review seems intrinsically relevant in this debate, as it ‘has been seen virtually everywhere as a bulwark against authoritarianism, [and] as a mechanism to protect human rights.’[18]
Thus, as this short introduction makes clear, in answering the question as to how human rights should be vindicated on the global stage, the potential judicial review powers of the ICJ must be evaluated.
However, before analysing the merits of such powers, it is logical to summarily review the question of whether ICJ judicial review powers can be said to already legally exist within the UN framework- a question to which much scholarship has been afforded.
To begin, the UN Charter is a useful source in which to look for the legal foundation of these rights. In the Charter, the SC has been granted “primary responsibility for the maintenance of international peace and security,”[19] along with the power to determine the existence of any threats to the peace, and actions in breach of such peace under Chapter VII of the Charter.[20] The SC’s decisions (to the extent they are in line with the Charter) are binding on all UN Member States.[21]
By comparison, the ICJ has been deemed the UN’s ‘Principal Judicial Organ.’[22] Interestingly, the ICJ has two jurisdictions: contentious and advisory. Contentious proceedings are brought between two state parties,[23] and may only be brought if both parties consent to proceedings.[24] The court’s decision is binding only on the parties to the dispute.[25] Advisory proceedings, contrastingly, are considered on request from the SC or General Assembly,[26] or, if given permission by the Assembly, other UN organs and specialised agencies.[27] Advisory Opinions are not legally binding, but are considered highly persuasive and thus carry much force in (de)legitimising the actions considered under its jurisdiction.[28]
As the above summary makes clear, therefore, the UN Charter is silent on the topic at issue in this essay, as it does not expressly allow nor forbid the ICJ from exercising judicial review powers over Council decisions. Indeed, the question of whether the ICJ could legitimately exercise judicial review has yet to find “an authoritative answer.”[29]
Some argue that the Charter’s silence requires the ICJ to assume the validity of SC Acts whenever presented with them. However, Cannizzaro and Palchetti argue the opposite is true.[30] Given the SC or Assembly may request the ICJ to provide an opinion on “any legal question,”[31] in absence of a specific prohibition, this could logically include questions on the validity of SC decisions.[32] Indeed, Crawford argues that with this mandate, as Council resolutions are necessarily a part of international law, and a core tenet of applying the law is assessing its validity, the ICJ must be at liberty to review SC resolutions.[33] To analogise with municipal law, in the famous American case of Marbury v Madison,[34] no ‘express constitutional warrant’ was required to find the right of judicial review.[35] As Akande puts, a ‘lack of an express power of review is not ... determinative. What is more important is a lack of an express prohibition from engaging in judicial review.’[36] Prima facie, therefore, it seems the Charter’s silence does not prohibit a finding of the necessary powers.
However, many critics argue that judicial review over SC decisions cannot be established, as it would result in the ICJ overstepping its jurisdiction, from the legal to the political realm. John Hart Ely’s oft repeated criticisms of municipal judicial review practices, as quoted by Klabbers, may also ring true on the international plane. [37] Indeed, what right do lawyers have to ‘superimpose’ their values on popular decisions taken by legitimate institutions.
Yet, such an analogy may be limited, as the Trias Politica cannot be said to exist in the realm of international organisations due to the unanalogous design of the international order.[38]
Moreover, as made clear in the Nicaragua Opinion,[39] whilst the Charter explicitly demarcates the functions of the General Assembly and SC in relation to each other,[40] ‘there is no similar provision anywhere in the Charter with respect to the Security Council and Court.’[41] With no express exclusion of its concurrent competency, therefore, it seems even more justifiable that the ICJ’s remit might expand.[42]
As such, whilst the SC ‘has functions of a political nature,’ and the court remains purely judicial, both organs may still ‘perform their separate but complementary functions with respect to the same events.’[43] The case law of the ICJ further affirms that the ICJ ‘has seldom shied away from exercising its jurisdiction because of the political implications of its judgment or opinion.’[44]
In particular, the ICTY in Prosecutor v Dusko Tadic (‘Tadic’), affirmatively shut down this fallacy, stating that as long as the issue under examination ‘turns on a legal question capable of a legal answer, the Court considers that it is duty bound to take jurisdiction over it, regardless of the political background or the other political facets of the issue.’[45] Evidently, concerns over judicial politicisation can be discarded.
On another point, many so called ‘judicial realists,’[46] would argue that no such power can be legitimately read into the Charter as it is against the explicit intention of the founders. Indeed, at the 1945 San Francisco Conference in which the UN Charter and ICJ Statute were agreed, a Belgian proposal was emphatically rejected which sought to include ICJ Review of Council decisions alleged (by affected States) to have infringed their essential rights.[47] Instead, the Conference decided that ‘each organ’ was to ‘interpret such parts of the Charter as are applicable to its particular functions.’[48]
Yet, whilst ICJ powers of judicial review may seem to be a broad expansion of the powers imagined by the founders, it is submitted that in enhancing its powers, the ICJ would merely be following the lead of the Council itself. As Dugard so eloquently puts, since the Council ‘has interpreted the Charter liberally to give itself implied powers... there is no reason why the ICJ should not follow this example in respect of its own.’[49] Indeed, the present imbalance of power between the two organs is arguably further from the founder’s image of co-equal institutions,[50] in a horizontal relationship,[51] than a ICJ-SC relationship inclusive of judicial review. Instead, the latter would merely include the appropriate level of accountability mechanisms to reflect an increased scope of SC powers.[52] As the SC Report affirms, the Charter lays the foundation for the two to establish a strong relationship, a foundation which is presently being squandered. That is why the equilibrium of the legal balance must be re-evaluated.[53] Redistribution of power is required, and this may readily be achieved through affirming powers of judicial review.
Moreover, in further opposition to the arguments pining over the ‘founders’ intentions,’ the current composition of the UN is vastly different than that of the San Francisco Conference. At the conference, only 50 states were represented, although including, notably, all of the Permanent Five (‘P5’) States. Indeed, of the most vocal critics were the USSR, who argued a right of review would ‘handicap’ the SC ‘in carrying out its functions,’[54] and the United Kingdom (‘UK’) who added that it would cause unjustifiable ‘delays,’ preventing the SC from acting promptly.[55] Hence, the relevance of the intention of these limited founders, in comparison to the accountability requirements of the modern organisation, are debatable.[56] Indeed, the Charter is a ‘living tree,’[57] which can, and should, adapt to accommodate the changing organisation and global order.
(d) Case Law
However, despite these compelling justifications, to date, the Court has seemingly been reluctant to acknowledge its own power of judicial review. In Certain Expenses,[58] it held that “as anticipated in 1945 ... each organ must, in the first place at least, determine its own jurisdiction.[59] Whilst Certain Expenses related to the review of a General Assembly resolution, this sentiment has been reiterated in the Namibia Opinion, in which the ICJ firmly stated that, ‘undoubtedly, the Court does not possess powers of judicial review or appeal in respect of the decisions taken by the United Nations Organs concerned.’ [60]
However, the so-called ‘judicial romantics’[61] offer compelling counterarguments to these claims. Indeed, the seeming rejection of judicial review powers by the ICJ itself in Namibia, must be understood with a pinch of salt.[62] As Klabbers convincingly argues, examined in context, it is clear that the ICJ aimed not to reject all powers of judicial review, but instead merely to affirm that its competence is not a general one, but one ‘necessarily confined within the limits imposed by the functions assigned to it by the Charter and by the Statute.’ [63] In short, such powers of review only arise if an assessment of the validity of Act is necessary in order to answer a legal question or to settle a dispute.[64] Yet, importantly, such powers can, and do, still arise.
Lockerbie (Provisional Measures)[65] represents the instance in which the ICJ has been the closest to recognising its jurisdiction to review. In this case, Libya (after failing to surrender accused terrorists for trial to the United States (‘US’) and UK and denying allegations of knowledge and responsibility for their crimes) was deemed ‘a threat to international peace and security.’[66]
Libya challenged the substance of this resolution, arguing, inter alia, that the SC had no basis for concluding it was a ‘threat to the peace,’ and that the SC was intruding in its domestic jurisdiction, contrary to the Charter.[67]
Libya’s appeal was denied, with the ICJ concluding that ‘since no sufficient case of mala fides or ultra vires had been established by Libya at this preliminary stage, there were no grounds upon which the Court could order such interim relief.’[68]
Significantly, many commentators argue that the ICJ in this case has implicitly accepted its ability to review SC resolutions. By finding no violations in the case at hand, it implied that in future cases it could.[69]
Yet, whilst the above analysis seems in constitutional favour of introducing powers of judicial review, concerns over the practical impact of introducing such a mechanism are, indeed, validly posited.
On this note, Reisman speaks of ‘incurable judicial romantics’ whose blinding prejudice towards judicial outcomes causes them to ‘summon forth mysterious powers inherent in the law’ inappropriately utilising legal tools ‘to bring order and justice to the most untidy, even violent political situations.’[70]
And indeed, his concerns are not unfounded. As Claude argues, major international disputes are often fundamentally messy, and as such ‘a judgment does not constitute a settlement ... Indeed, the authoritative statements of legal rights and wrongs may even impede settlement by encouraging self-assertive rigidity on one side and self-defensive rigidity on the other.’[71] Analysing the example of South Africa and South-West Africa, Claude makes clear that often in heated political disputes, legalistic technicalities offer no real comfort to the parties. Instead, such decisions might ‘add judicial fuel to the political fire rather than to turn a judicial fire extinguisher upon the flames of political antagonism.’[72]
Yet, whilst this ‘realpolitik’[73] concept is certainly convincing, it does not necessarily preclude the introduction of ICJ judicial review powers if global peace and human rights are to be protected. Instead, it merely requires that any judicial review comes in a qualified, and specific form.
Indeed, the above criticisms are not difficult to answer, but are rather accepted and conceded. It is accepted that an ‘all-encompassing scope of review’ would undoubtedly inhibit the ability of the SC to work efficiently to defuse security threats.[74] But, as Alvarez outlines, municipal legal systems illustrate the wide array of modes of review: for example the Japanese deferential approach or France and Germany’s abstract review.[75] The question of the desirability of review cannot be satisfactorily answered, therefore, unless the analysis connects directly with the specific form of review in question. A method of review, must, therefore, be selected.
Perhaps, the original Belgian proposition represents the most convincing basis for a form of review on this international level.[76] In this proposal, similar to the UK’s system of review under the Human Rights Act 1998, if the Court finds a decision to be illegal, it should not be directly disapplied as ‘void ab initio’ but should instead be referred back to the SC to reconsider the question. Furthermore, (as Reisman argues would have been appropriate in Lockerbie) the court could also defer to the SC, thus insisting on its own equality with the SC, whilst still affirming its ability to defer, or decline to exercise its jurisdiction when ‘the larger purposes of the UN require it.’[77]
Additionally, it is argued that the present limitations on standing to bring review (i.e., that only States (in contentious) and UN Organs (in advisory)) should be preserved. Given the practical difficulties with implementing judicial review as analysed above, to hold otherwise would be to dramatically increase the powers of review beyond what is currently politically palatable.
Whilst greater powers of review may be desired by many advocates, implementing limited powers to review to begin with does not prevent greater powers being introduced in the future, when political realities allow. Indeed, Judicial review is an evolutionary tool, as municipal examples reveal, as seen by its varied development in municipal legal systems from Italy to the US. [78]
Judicial review’s metamorphic nature is exactly what makes it the perfect tool to increase collaboration, and, therefore, legitimacy in the relationship between the two central organs.[79] As the SC and global world order continues to adapt, allowing judicial review will mean the ICJ can adapt alongside, and that appropriate checks and balances can be maintained. Thus, whilst it must necessarily be implemented in a limited fashion to begin with, as UN constitutional order develops, so may the powers of review within it.
Overall, introducing powers in this qualified fashion would increase the legitimacy of both the SC and the ICJ.
Indeed, lacking the enforcement powers of a municipal legal system, it is essential that both the SC and the ICJ maintain their credibility. As Klabbers points out, ‘to be overly generous with judicial review would tend to undermine the very idea of judicial review.’[80] As such, ‘the legitimacy of a rule derives from the perception that it has arisen fairly.’[81] Naturally, judicial review’s ability to vindicate human rights depends entirely on the ability of the UN Organs to actually enforce compliance with such decisions. Hence, judicial review must only be introduced if it can be said to increase perceptions of legitimacy in both UN institutions.
Thus, whilst judicial review is normally framed as an encroachment on SC power, instead it may be the institution’s saving grace. Arguably, the SC is in need of much legitimisation. As Dugard points out, increasingly, smaller States are growing frustrated with the veto powers of the P5’s ‘police state’ in which the historical powerhouses are unfairly able to entrench their dominance.[82] The expansion of the BRIC states represents a recent example of how smaller states are seeking to rebalance the global order.[83]
In this context, without review, the consent-based structure of the UN seems unsustainable. Instead, the review powers of the ICJ can represent a useful tool to re-enforce the legitimacy of the Council.[84]
The strength of this argument is supported by the recent example of the establishment of the Office of the Ombudsman. Following the 9/11 attacks, the SC introduced Da’esh Sanctions Committee List imposing sanctions on individuals and entities. These sanctions were subjected to severe legal scrutiny, with alleged violations of the human rights of those on the sanctions list, specifically their due process and property rights. Thus, in response to intense political pressure, the SC established the Office of the Ombudsperson to manage a sanctions de-listing and rights-safeguarding process.[85] Whilst created ‘reluctantly’” the mandate of the Ombudsperson has undeniably been a success, improving, rather than limiting, the effectiveness of the sanctions regime.[86]
Thus, it is submitted that instead of conceding in the face of political pressure, if the SC has received guidance from the ICJ as to the legality of the measures, the authority of the SC would have been left ‘less diminished’ as the SC would not have had to ‘succumb to pressure from domestic jurisdictions.’[87] Instead, its legitimacy would have been further preserved by its appropriate use of pacific dispute settlement procedures.
As Alvarez summarises, the question of legitimacy should be significant to all UN actors, especially to the SC. Indeed, if it fails to view legitimacy as a ‘two-way street ... over the long term, the Council may find that it ignores such legalistic issues at its and the system's peril.’[88] Thus, rather than viewing the introduction of judicial review powers as an encroachment on SC authority, ‘it is precisely the fact that the Council has such wide discretion on how to perform its responsibilities that would allow it to make energetic use of the Court.’[89]
Overall, therefore, introducing powers of judicial review, provided they are introduced in the stated qualified manner to mitigate political concerns, represents a win-win solution, allowing for the increased accountability of the SC by increasing the powers of the ICJ in a legitimate way. Such increased legitimacy will increase overall compliance, and thus improve the ability of the UN to promote global human rights.
Thus, with the qualified scope of judicial review required by realpolitik identified, this essay will now evaluate in what ways the affirmation of such powers could help vindicate global human rights.
Firstly, it is clear that for judicial review to be at all useful in vindicating human rights, the SC must be found to be bound by such obligations. Otherwise, no standard of review against which to validate its decisions would exist.
As a starting point, art 103 holds that the UN organs cannot be bound by operative international conventions which conflict with obligations under the UN Charter.[90] This raises the question as to whether the SC can be made to comply with human rights conventions where such conventions conflict with declarations made under the Charter provisions. Moreover, the SC itself is not a party to the General Assembly’s Universal Declaration on human rights, or associated treaties, creating further questions on the extent of its duty to respect such fundamental rights. Indeed, such conventions were drafted with the view of affecting the performance of States, not UN Organs.[91]
Yet, whilst these questions persist, most academics agree that the SC must at least be subject to the peremptory norms of general international law, otherwise known as jus cogens.[92]
Firstly, Schweigman argues that, even subject to art 103, as an organ created by a treaty, the Security Council is subject to the rules of the Vienna Convention on the Law of Treaties (‘VCLT’).[93] Article 53 VCLT provides that a treaty is void if, at the time of its conclusion, it conflicts with jus cogens principles.[94] The conclusion that the SC is bound by such principles thus necessarily follows.
Furthermore, Lauterpacht J, in the Application of the Genocide Convention (Provisional Measures), logically held that the idea that article 103 excludes the application of jus cogens, is wrong, on a simple matter of hierarchy of norms. As he compellingly puts, ‘one only has to state the opposite proposition – that a Security Council resolution may even require participation in genocide – for its unacceptability to be apparent.’[95]
In addition, whilst art 103 raises questions, arts 1 and 24 of the Charter hold that the SC must maintain international peace and security ‘in conformity with the principles of justice and international law.’[96] As Dugard makes clear, this necessarily places limits on the SC to issues resolutions in accordance with the principles of jus cogens.[97] With the promotion of human rights set firmly as a core purpose of the UN, the theory of functionalism demands that the SC is necessarily bound by this.[98] Indeed, if the Charter is considered as a ‘living instrument,’ given the increasing centrality of human rights protections in the UN’s mission today, arts 1 and 24 create a strong foundation for any argument suggesting that the SC is bound to respect international human rights standards when exercising its powers.[99]
To settle this matter, Dugard deems the decision in Tadic as, ‘probably the best evidence for the proposition that the powers of the SC are subject to judicial review,’ in relation to human rights compliance.[100] In this case, the ICTY affirmed that the tribunal must be ‘established by law,’ meaning that ‘it must provide all the guarantees of fairness, justice and even-handedness, in full conformity with internationally recognised human rights instruments.’[101] Whilst not a decision of the ICJ, the decision in Tadic further illustrated that review by a court as to SC’s compliance with its human rights obligations under the Charter is permitted. As a result of this analysis, therefore, it must be accepted that the SC is indeed subject to peremptory norms.
However, even with this debate settled, the question still remains as to exact content of such norms. Indeed, art 53 VCLT does not specify which individual rights fall within this box of jus cogens.[102] Even the Western World is unable to decide upon how human rights should be manifested, as made clear, for example, by the different interpretations of free speech in Germany and the US.[103] Might it be that even if judicial review is possible, and that the SC is subject to jus cogens, it may be the case that there is no ‘standard of validity’ of which to judge the SC against?[104]
However, as Bianchi asserts, ‘there is an almost intrinsic relationship between peremptory norms and human rights.[105] This statement is further confirmed in caselaw, for example, in the South-West Africa case where Tanaka J (in dissent) confirmed that ‘surely the law concerning the protection of human rights may be considered to belong to the jus cogens.’[106]
However, even accepting that human rights form part of jus cogens, it is still unclear as to which rights fall under the category of jus cogens. Indeed, Michaelson argues that whilst a ‘widespread view is that those human rights which are identified as non-derogable for the purposes of Article 4(2) of the ICCPR possess jus cogens status,’[107] in practice, SC violations of jus cogens largely belong to hypothetical academic arguments rather than to political realities.[108]
Yet, even with these questions still in mind, the European Court of Justice’s (‘ECJ’) judgment in Kadi,[109] provides valuable insight into how judicial review may move such protections beyond the realm of academic theory.
In this case, following a SC mandated sanction, Yassin Kadi had his assets frozen due to suspected terrorist affiliations. As a result, the ECJ found that Kadi’s fundamental rights had been violated, and thus annulled the UN mandate. [110] Specifically, the Court found that whilst it was mindful of the specific context in which UN SC resolutions are adopted, it could not allow full immunity against judicial review.[111] It held that various fundamental rights, including the right to be heard and to judicial review were ‘patently not respected.’ Instead, individuals that are blacklisted must have an opportunity to be heard and to present their argument against blacklisting.[112]
Finally, whilst the ECJ accepted that restrictions on freezing property to implement sanctions cannot ‘per se be regarded as inappropriate or disproportionate,’ in the present case, as Kadi was unable to present his case to the authorities the freezing measure represented an infringement of his right to property.[113]
Overall, this ECJ jurisprudence represents a useful example in proving the need for ICJ powers of review.
Firstly, the case presents yet another example of wrongdoing by the SC, further evidencing its fallibility and the need for checks and balances. Yet, in this case, the injustice could be corrected only due to Kadi’s good fortune of falling within the ECJ’s geographical jurisdiction. If his rights had been violated on a different continent, he would not have been so lucky. This is inherently unsatisfactory. As Lavranos puts, ‘the protection and exercise of fundamental rights is not a question of bad or good luck, but of the proper application of existing rules in all cases.’[114] The ECJ’s judgment, thus, reveals the gaps that exist in the global system, and thus the need to move such legal avenues onto the level of the ICJ.[115]
Secondly, the judgment provides a clear application of how ‘human rights peremptory norms’ can perform as ‘constitutional parameters against which the legality of the Security Council anti-terror measures’ can be tested.[116] Despite a wide margin of appreciation, the ECJ was still able to apply the proportionality principle, and cogently confirm that fundamental rights had been breached. Thus, concerns over how courts could judge SC decisions given its large discretionary power,[117] are successfully refuted.[118]
As Alvarez succinctly puts, even if it is accepted that some UN Charter rules are too ‘elastic’ for the Court to judge against, “merely because some Charter rules are void because of vagueness does not indicate that all sovereign rights are.”[119] Indeed, as absolute powers of judicial review are not proposed, where appropriate review of discretionary powers is not possible, the ICJ may in any event defer to the SC as previously mentioned.
Finally, it is submitted that the knock-on effects of allowing such review would further improve global human rights protections. Such review would hold the SC accountable, thus encouraging its members to incorporate ‘sufficient procedural guarantees and effective review mechanisms’ into UN procedures.[120] Furthermore, by improving the legitimacy overall of the UN Organs, it is likely that engagement and compliance with its aims will increase among its Member States. This further improves the ability of the UN to introduce ambitious resolutions to improve global rights protections.
Thus, overall, the above analysis makes clear that allowing limited powers of judicial review to the ICJ would indeed help improve global rights protections, by filling in regional gaps, holding the SC accountable, and increasing overall member alignment with its purpose.
Yet, it is equally clear that allowing judicial review powers for the ICJ does not represent a perfect solution. In fact, there are many limitations to using the ICJ as a forum for human rights protections.
Firstly, as the above analysis alludes to, the SC is not the sole, or indeed even the main, perpetrator of human rights abuses. As history has repeatedly shown, human rights are violated by States and individuals. Yet, many governments have failed to sign and ratify important human rights conventions, or to bring their laws into conformity with such conventions after signing.[121] As the ICJ’s jurisdiction is limited, it is unable to meaningfully intervene in the domestic affairs of its members to rectify such situations.[122]
Moreover, the consent-based model of the ICJ’s jurisdiction requires parties to agree to review. This requirement represents a ‘serious set-back,’ as when referred a question, before the Court can even begin to deal with merits of the case in front of it, it must first meticulously analyse as to whether its limited head of jurisdiction has been invoked. [123] If its analysis is ‘too restrictive,’ the ICJ will needlessly limit its powers. Yet, if its analysis is too broad, “it will endanger its position, since States may become more reluctant to accept its jurisdiction or more inclined to withdraw the acceptance already given.” [124] Thus, the consent-based jurisdiction irrefutably limits the ability of the ICJ to meaningfully review cases of human rights violations. Even if judicial review powers over the SC were afforded, the ICJ would still be severely limited in its ability to protect individuals against violations by States.
Furthermore, the ICJ is also limited in that it is only able to review cases recommended to it by States (contentious) or UN Organs (advisory). As Schmalenbach notes, despite numerous occasions on which SC resolutions could legitimately have been challenged, ‘the Lockerbie case remains the sole venture in this regard.’ [125] Indeed, the difficulty in establishing a jurisdictional link, along with potential associated political costs of litigation, mean that it is exceptionally rare for a relevant case to reach the ICJ.[126] Whilst an increased scope of SC review may encourage States and Organs to bring more requests than are presently seen, it cannot be denied that such a mechanism will never be able to provide a fully comprehensive means to rights protection.
Finally, whilst Kadi was able to bring his case against the ECJ, no direct cause of action is afforded to individuals at the UN level. Indeed, for individuals to access the ICJ, their claim must either be espoused by their Home State in contentious proceedings, or a sufficient number of states in an appropriate UN Organ (e.g. the General Assembly) must vote in favour of a request for an advisory opinion.[127] Such avenues do not represent an easily accessible means by which to access justice.[128]
Ultimately, therefore, such powers of review seem to manifest as an ill-suited tool to fill the dearth of global human rights protection, given the sheer inaccessibility of the review mechanism to those directly in need: namely, the ‘humans’ to which the rights belong.
Hence, considering all of these limitations, it is clear that whilst allowing a power of review may improve global rights protections, it cannot on its own solve the issue and achieve the UN’s purpose of human rights vindication.
For this reason, other solutions have been posited by various organisations and academics. Whilst it is beyond the scope of this essay to evaluate such methods, for reasons of completion they will be briefly mentioned. For example, the United Nation’s Human Rights Committee could have a role to play in creating a judicial space to protect the fundamental rights of individuals.[129] Alternatively, as was first suggested by the Netherlands at the San Francisco Conference, perhaps the Security Council should be reviewed by a ‘Body of Eminent Men.’[130] Klabbers has further explored this idea, positing the desirability of ‘Kadi Justice,’ where review takes place in the form of ‘panels of wise men (or women)’ who can ‘decide on issues where a strict application of legal rules might be awkward or, more often perhaps, lead to awkward results.’ [131] Equally, whilst review of the SC has been the primary focus of this essay, it cannot be denied that review of other UN organs, such as the General Assembly, would also help further vindicate global human rights.[132]
The availability of other methods of “judicially” increasing human rights protections at the UN level, therefore, further require the advantages of ICJ judicial review powers to be considered against its weaknesses, and overall limits the express necessity to implement this specific solution.
To conclude, therefore, allowing the ICJ qualified powers of judicial review over SC resolutions is indeed possible, and such a measure would increase both the SC’s legitimacy and its ability to protect global human rights. However, such reform does not represent a miracle solution, with many glaring holes in the system of global human rights protections persisting even if implemented. Yet, this is does not utterly reduce its utility as a solution. Instead, as Alvarez puts, ‘today’s “realists” and “romantics” need to doft these labels and engage in a frank cost/benefit analysis of judicial review.’[133] Thus, whilst judicial review of SC resolutions cannot on its own cure all human rights violations, it is still a step in the right direction. Indeed, if implemented, it would allow the global community to remember and reinforce the core founding intentions behind the UN: the protection and vindication of human rights and dignity.
[1] Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America) (Provisional Measures) [1992] ICJ Rep 113, 142 (Judge Shahabuddeen).
[2] Charter of the United Nations art 1(3).
[3] Otto Spijkers, The United Nations, The Evolution of Global Values and International Law (Intersentia, 2011) 303 (‘Evolution of Global Values’).
[4] Jeremy Bentham, ‘Anarchical Fallacies’ in John Bowring (ed) The Works of Jeremy Bentham (William Tait, 1843) vol 2, 501.
[5] Jeremy Bentham, ‘A Fragment on Government’ in Ross Harrison (ed) Cambridge Texts in the History of Political Thought (Cambridge University Press, 2012) 3.
[6] Ronald Dworkin, A Bill of Rights for Britain (Chatto & Windus Ltd, 1990) 12.
[7] Prosecutor v Furundzija (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-95-17/1-T, 10 December 1998) [183].
[8] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Order on 8 April 1993) [1993] ICJ Rep 3.
[9] Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities (C-402/05 P and C-415/05 P) [2008] ECR I-6351 (‘Kadi’).
[10] Jan Klabbers, ‘Straddling Law and Politics: Judicial Review in International Law’ in Ronald St. John MacDonald & Douglas M Johnston (eds), Towards World Constitutionalism (Leiden, Martinus Nijhoff, 2005) 816 (‘Straddling Law and Politics’).
[11] Ibid 814.
[12] Andrea Bianchi, ‘Human Rights and the Magic of Jus Cogens’ (2008) 19(3) European Journal of International Law 491, 497.
[13] Ibid 497.
[14] Christopher Michaelsen, ‘Human Rights as Limits for the Security Council: A Matter of Substantive Law or Defining the Application of Proportionality’ (2014) 19(3) Journal of Conflict and Security Law 451, 452.
[15] Jan Klabbers, An Introduction to International Institutional Law (Cambridge University Press, 2002) 223.
[16] Sabine Von Schorlemer, ‘The United Nations’ in Jan Klabbers & Asa Wallendahl (eds) Research Handbook on the Law of International Organisations (Edward Elgar Publishing, 2011) 475 (‘The United Nations’).
[17] Michaelsen (n 14) 452.
[18] Jose E Alvarez, ‘Judging the Security Council’ (1996) 90(1) American Journal of International Law 1, 36 (‘Judging the Security Council’).
[19] Charter of the United Nations (n 2) art 24.
[20] Ibid art 39.
[21] Ibid art 25.
[22] Ibid art 92.
[23] Statute of the International Court of Justice art 34.
[24] Ibid arts 36.1, 36.2.
[25] Ibid art 59.
[26] Charter of the United Nations (n 2) art 96.1.
[27] Ibid art 96.2.
[28] David Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter: Legal Limits and the Role of the International Court of Justice (Kluwer Law International, 2001) 33.
[29] Schorlemer (n 16) 484.
[30] Enzo Cannizzaro and Paolo Palchetti, ‘Ultra Vires Acts of International Organisations’ in Jan Klabbers & Asa Wallendahl (eds) Research Handbook on the Law of International Organisations (Edward Elgar Publishing, 2011) 386.
[31] Charter of the United Nations (n 2) art 96.
[32] Cannizzaro and Palchetti (n 30) 386.
[33] James Crawford, ‘Marbury v. Madison at the International Level’ (2004) 36(3) George Washington International Law Review 505, 512.
[34] Marbury v. Madison, 5 US [1803] USSC 16; (1 Cranch) 137 [1803].
[35] Alvarez, ‘Judging the Security Council’ (n 18) 3.
[36] Dapo Akande, ‘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’ (1997) 46(2) International and Comparative Law Quarterly 309, 327.
[37] Klabbers, ‘Straddling Law and Politics’ (n 10) 809.
[38] Schweigman (n 28) 248.
[39] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Jurisdiction/Admissibility) [1984] ICJ Rep, 392 (‘Paramilitary Activities in Nicaragua’).
[40] Charter of the United Nations (n 2) art 12.
[41] Paramilitary Activities in Nicaragua (n 39) 435 [95].
[42] John Dugard, ‘Judicial Review of Sanctions’ in V. Gowlland-Debbas (ed), United Nations Sanctions and International Law (Nijhoff, 2001) 83, 85.
[43] Paramilitary Activities in Nicaragua (n 39) 435 [95].
[44] Schweigman (n 28) 263.
[45] Prosecutor v Dusko Tadic aka “Dule”(Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) (International Criminal Tribunal for the Former Yugoslavia), Trial Chamber II, Case No IT-94-1-AR-72, 2 Oct1995) [24] (‘Prosecutor v Tadic’).
[46] Alvarez, ‘Judging the Security Council’ (n 18) 36.
[47] ‘Amendments Submitted by the Belgian Delegation’ (1945) 3 UNCIO Documents 336 (‘Belgian Amendments’).
[48] ‘Draft Report of the Rapporteur of Committee IV/2’ (1945) 13 UNCIO Documents 668; ‘Sixteenth Meeting of Committee IV/2, June 12, 1945’ (1945) 13 UNCIO Documents 709.
[49] Dugard (n 42) 85.
[50] Michael J Matheson, ‘ICJ Review of Security Council Decisions’ (2004) 36(3) George Washington International Law Review 615, 619.
[51] Charter of the United Nations (n 2) art 7.1.
[52] Bardo Fassbender, ‘Quis Judicabit? The Security Council, Its Powers and Its Legal Control’ (2000) 11(1) European Journal of International Law 219, 223.
[53] Security Council Report, The Rule of Law: Can the Security Council Make Better Use of the International Court of Justice? Security (Research Report, 20 December 2016) 9.
[54] ‘Seventh Meeting of Committee III/2, May 17, 1945’ (1945) 12 UNCIO Documents 49.
[55] ‘Ninth Meeting of Committee III/2, May 21, 1945’ (1945) 12 UNCIO Documents 66.
[56] Erika de Wet ‘Judicial Review as an Emerging General Principle of Law and Its Implications for the International Court of Justice’ (2009) 47(2) Netherlands International Law Review 181, 182.
[57] Spijkers (n 3) 131.
[58] Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151, 168.
[59] Ibid.
[60] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (Advisory Opinion) [1970] ICJ Rep 16, 45.
[61] Alvarez, ‘Judging the Security Council’ (n 18) 36.
[62] Klabbers, ‘Straddling Law and Politics’ (n10) 818.
[63] Ibid.
[64] Ibid.
[65] Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v United States of America) (Provisional Measures) [1992] ICJ Rep 114.
[66] SC Res 731, UN Doc S/RES/731(21 January 1992).
[67] Matheson (n 50) 619.
[68] Thomas M. Franck, ‘The “Powers of Appreciation”: Who Is the Ultimate Guardian of UN Legality?’ (1992) 86(3) American Journal of International Law 519, 521.
[69] Alvarez, ‘Judging the Security Council’ (n 18) 34.
[70] W Michael Reisman, ‘The Constitutional Crisis in the United Nations’ (1993) 87(1) American Journal of International Law 83, 94.
[71] Inis L Claude, Jr, Swords into Plowshares: The Problems and Progress of International Organization (Random House, 4th ed, 1971) 234–5.
[72] Ibid.
[73] Alvarez, ‘Judging the Security Council’ (n 18) 36.
[74] Ken Roberts, ‘Second-Guessing the Security Council: The International Court of Justice and Its Powers of Judicial Review’ (1995) 7(2) Pace International Law Review 281, 321.
[75] Jose Alvarez, ‘Theoretical Perspectives on Judicial Review by the World Court’ (1995) 89 American Society of International Law 85, 89 (‘Theoretical Perspectives’).
[76] ‘Belgian Amendments’ (n 47) 336.
[77] Reisman (n 70) 89.
[78] Alvarez, ‘Judging the Security Council’ (n 18) 36.
[79] Security Council Report (n 53) 9.
[80] Klabbers, ‘Straddling Law and Politics’ (n 10) 835.
[81] Kathleen Renee Cronin-Furman, ‘The International Court of Justice and the United Nations Security Council: Rethinking a Complicated Relationship’ (2006) 106(2) Columbia Law Review 435, 457.
[82] Roberts (n 74) 315.
[83] Sarang Shidore, ‘With BRICS Expansion, American Power Just Took a Big Hit’ The New York Times (Opinion Piece, 1 September 2023).
[84] Security Council Report (n 53) 9.
[85] Ibid.
[86] Ibid.
[87] Ibid.
[88] Alvarez, ‘Theoretical Perspectives’ (n 75) 88–9.
[89] Ibid.
[90] Charter of the United Nations (n 2) art 103.
[91] Michaelson (n 14) 454.
[92] Schweigman (n 28) 202.
[93] Schweigman (n 28) 202.
[94] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) art 53 (‘Vienna Convention’).
[95] Application of the Genocide Convention (Bosnia and Herzegovina v Yugoslavia), (Provisional Measures) [1993] ICJ Rep 407, 440 (Judge Lauterpacht).
[96] Charter of the United Nations (n 2) arts 1, 24.
[97] Dugard (n 42) 85.
[98] Vera Gowlland-Debbas, ‘The Relationship Between the International Court of Justice and the Security Council in the Light of the Lockerbie Case’ (1994) 88(4) American Journal of International Law 643, 662.
[99] Michaelsen (n 14) 455.
[100] Dugard (n 42) 87.
[101] Prosecutor v Tadic (n 45) [44].
[102] Vienna Convention (n 94) art 53.
[103] Ronald Dworkin, Is Democracy Possible Here? (Princeton University Press, 2006) 34.
[104] Klabbers, ‘Straddling Law and Politics’ (n 10) 82.
[105] Bianchi (n 12) 491.
[106] South West Africa (Ethiopia v South Africa) (Second Phase Judgment) [1966] ICJ Rep 250, 298 (Judge Tanaka).
[107] Michaelsen (n 14) 459.
[108] Ibid.
[109] See Kadi (n 9).
[110] Ibid.
[111] Ibid.
[112] Ibid.
[113] Ibid.
[114] Nikolaos Lavranos, ‘Judicial Review of UN Sanctions by the European Court of Justice’ (2009) 78(3) Nordic Journal of International Law 343, 357.
[115] Larissa Van Den Herik, ‘The Security Council’s Targeted Sanctions Regimes: In Need of Better Protection of the Individual’ (2007) 20(4) Leiden Journal of International Law 797, 803.
[116] Bianchi (n 12) 497.
[117] Ioana Petculescu,‘The Review of the United Nations Security Council Decisions by the International Court of Justice’ (2005) 52(2) Netherlands International Law Review 167, 174.
[118] Dugard (n 42) 88.
[119] Alvarez (n 18) 16.
[120] Lavranos (n 114) 357.
[121] International Commission of Jurists, Towards Universal Justice (International Commission of Jurists, 1993) 9.
[122] Charter of the United Nations (n 2) art 7.
[123] Pieter Kooijmans, ‘The ICJ in the 21st Century: Judicial Restraint, Judicial Activism, or Proactive Judicial Policy’ (2007) 56(4) International and Comparative Law Quarterly 741, 743.
[124] Ibid 743.
[125] Kirsten Schmalenbach, ‘Dispute Settlement’ in Jan Klabbers & Asa Wallendahl (eds) Research Handbook on the Law of International Organisations (Edward Elgar Publishing, 2011) 260.
[126] Canizzaro and Palchetti (n 30) 387.
[127] August Reinisch, ‘Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions’ (2001) 95(4) The American Journal of International Law 851, 866.
[128] Emerging Principle of Law (n 56) 183.
[129] Reinisch (n 127) 868.
[130] Spijkers (n 3) 129–34.
[131] Jan Klabbers, ‘Kadi Justice at the Security Council’ (2007) 4(2) International Organizations Law Review 293, 301–3.
[132] Klabbers, ‘Stradding Law and Politics’ (n 10) 823.
[133] Alvarez, ‘Theoretical Perspectives’ (n 75) 90.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/UNSWLawJlStuS/2024/9.html