JUDICIAL REVIEW FROM THE PERSPECTIVE OF INTERNATIONAL LAW Balu G Nair, IIIrd Year, 209095.

INTRODUCTION The idea of imposing checks and balances on the political and executive organs of the International Organizations (IOs) assumes much significance in the present global scenario. The looming threats of UN sanctions against Iran are a clear indication of the same.1 The balance of power equations between nations have changed drastically in the aftermath of the Cold War, resulting in concerted actions targeted against weaker nations.2 This is where the idea of judicial review comes in. It acts as a check on any indiscreet exercise of powers by the political organs.3 The concept of judicial review in international law is unsettled and is in its formative phase. The International Court of Justice (ICJ) has been maintaining the position that it does not have powers to review the decision of any UN political organ.4 On the other hand, European Court of Justice is conferred express powers to carry out judicial review under its constituent treaty.5 As opposed to this, it is still unclear whether the African Court of Justice and Human Rights possesses these powers.6 In this paper, I will not be taking up a detailed study on the powers of judicial review conferred on all international judicial fora. Rather, I restrict my analysis to the recent debates surrounding the ICJ and its authority to review the binding decisions of the Security Council (SC) taken under Chapter VII of the Charter in the light of Lockerbie Case, Namibia case etc. The first part

Vladimir Radyuhin, Russia escalates war of words with U.S., THE HINDU (Delhi), January 13, 2012.

See generally, Ken Roberts, Second Guessing the Security Council: The International Court of Justice And Its Powers Of Judicial Review, 7 Pace Intl L.Rev.281 (1995) [Roberts].
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Nicholas Wasonga Orago, Interrogating the Competence of African Court of Justice and Human Rights to Review the African Union Assemblys Decisions for Compliance with Human Rights, 28 October 2010, available at http://137.215.9.22/bitstream/handle/2263/16789/Constitutional_Orago(2010).PDF?sequence=1 (Last visited on February 24, 2012) [Orago].
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See generally, Bernd Martenczuk, The Security Council, International Court and Judicial Review: What Lessons from Lockerbie?, EJIL (1999), Vol. 10 No. 3, 517547 [Martenczuk].
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KH Kaikobad, The ICJ and judicial review: A study of the Courts powers with respect to judgments of the ILO and UN Administrative Tribunal (2000) 12-13.
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Orago, Supra note 3.

of the paper would briefly summarise the idea of judicial review as used in this paper. The second part would outline the debate surrounding ICJ and SC. I. THE IDEA OF JUDICIAL REVIEW IN INTERNATIONAL LAW The notion of judicial review was brought into focus in Marbury v. Madison.7 This decision laid down that the paramount law of the land is in their respective constitutions and any decision taken by the executive or legislative organs in violation of the constitution is null and void and the Courts will have the power to strike them down.8 Thus, judicial review by courts acts as a restraint on the political organs of the state when they exceed their legally authorized powers. II. POWERS OF ICJ TO REVIEW SECURITY COUNCIL DECISIONS: DEBATES IN THE AFTERMATH OF LOCKERBIE. a) Current Position The only role played by ICJ in evaluating the decisions of the SC before the advent of cases like Lockerbie was under Art. 36 (3), wherein it could give an advisory opinion if the matter is referred to it by the SC.9 The question of ICJs review powers in general came up strongly after the observations made in cases like The Certain Expenses Case, 10 The Namibia Case 11 and Lockerbie. 12 Although none of these cases explicitly arrogated the powers of judicial review upon the ICJ, certain actions taken by them and obiter dicta gave strong indications of at least an incidental power of judicial review.13 The authors who have commented on this issue are divided into two opposing camps: realists, who oppose judicial review by ICJ on the ground that there is no legal basis for the same and

(1803) Cranch 137, 2 L.Ed. 60, available at http://www.law.cornell.edu/supct/html/historics/USSC_CR_0005_0137_ZO.html (accessed on 20/09/2010).

8

Orago, Supra note 3. Art. 36 (3) of UN Charter; Martenczuk, Supra note 4. Certain Expenses of the U.N., 1962 I.C.J. 151 (July 20).

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Legal Consequences for States of the Continued Presence of S. Ar. In Namib. (S. W. Afr.) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16 (June 21).
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Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.K; Libya v. U.S.), 1992 I.C.J. 3, 114 (Apr. 14).
13

Eric Zubel, The Lockerbie Controversy: Tension Between International Court of Justice and the Security Council, Annual Survey of International & Comparative Law: Vol. 5: Iss. 1, Article 10.,available at: http://digitalcommons.law.ggu.edu/annlsurvey/vol5/iss1/10 (Last visited on February 24, 2012).

romantics, who assert that judicial review by ICJ is implicit within the Charter provisions.14 The realists contend that the concept of judicial review was intentionally omitted from the UN Charter and the ICJ statute to avoid the same problems which affected the League of Nations from taking quick decisions.15 This contention is well backed up by the travaux preparatoires as well, in which a proposal by Belgium to confer ICJ with powers of judicial review was rejected.16They further contend that the UN Charter is not in the nature of a State Constitution with checks and balances on the powers of the political organs. Rather, it is a hierarchical collective security scheme with SC at the helm of the affairs.17 Judicial romantics counter this position by pointing out that the relationship between the SC and ICJ is that of functional parallelism, i.e., each one has its own sphere of activity and they complement each other in its functions.18 Further, no organization or body, be it of any standing, is authorized to violate the fundamental principles of international law. Thus, the powers of ICJ are not all encompassing and are subject to checks.19 b) Legal basis for the claim in favour of ICJs power of Judicial Review Both ICJ judges and commentators have made it fairly clear that there are no provisions in the UN Charter or ICJ Statute into which powers of judicial review can be explicitly read into.20 Nevertheless, commentators point to Chapters XIV and V of the Charter to indicate that the concept of judicial review is implicit within it. 21 Article 92 states that the court shall be the principal judicial organ of the UN. The title principal judicial organ might well be taken as an indication that the countries can imply a power of judicial review if they want to. 22 Furthermore, Article 25 states that members of the UN agree to accept and carry out the decisions of SC in accordance with the present Charter. Also, Article 24 (2) mandates the SC to exercise its powers in accordance with the purposes and principles of UN. Both these provisions are

14

Jose E Alvarez, Theoretical Perspectives on Judicial Review by World Court, Proceedings of the Annual Meeting of ASIL, Vol. 89 (1995) [Alvarez].
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Geoffrey R Watson, Constitutionalism, Judicial Review and World Court, 34 Harv. Intl L.J. 1 1993. Roberts, Supra note 2. Supra note 14, Alvarez. Id.

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Id. See generally, Mark Angehr, The International Court of Justices Advisory Jurisdiction and Review of Security Council and General Assembly Resolutions, 103 Nw.U.L.Rev 1007 (2009).
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Roberts, Supra note 2. Id.

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seen as placing a restraint on the SC and conferring ICJ the power to disregard any decision taken in contravention of the principles of UN Charter and principles of international law.23 The judgments of ICJ itself have contributed immensely to the evolution of this idea. In the Certain Expenses case, the court reserved for itself the right to determine whether certain expenses authorized by the SC were in conformity with the SCs charter obligations. 24 Additionally, the separate opinions of Judges Bustamente and Judge Morelli indicated the existence of judicial review to a certain extent. In the Namibia Case, although the Court did not overturn the decision of the SC, it examined the SC resolution for conformity with the charter principles. Thus, in essence the court exercised the powers of review in practice. In the Lockerbie case, the Court asserted its jurisdiction to examine the claims of Libya to provide for provisional measures in spite of the binding resolutions of the SC against Libya under Chapter VII. Although the Court was unwilling to make a call on its powers of judicial review, it clearly asserted that even in contentious case brought before it, it will look into the validity of binding SC resolutions in case they are fundamental to resolving the legal conflict before it. 25 Thus, the Court in Lockerbie asserted that it has at least an incidental power of judicial review.26 CONCLUSION Although it would be difficult to assert an explicit power of judicial review from either the Charter provisions or the ICJ statute, there are definite clues within the Charter restricting the Security Councils powers and empowering the ICJ. The global political developments also have necessitated the evolution of ICJs review powers. The Court in the future should take a cue from cases like Lockerbie and ensure that it at least asserts in no uncertain terms an incidental power of judicial review for the greater global stability.

23

Professor D. Bowett, Lecture at the British Institute for International and Comparative Law, Judicial and Political Functions of the Security Council and the International Court of Justice (Feb.17, 1994) as quoted in Supra note 2.
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Certain Expenses, Supra note 10; Supra note 2. Supra note 4, Martenzcuk. Id.

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