Judicial Review of Security Council Chapter VII Decisions:
A New Perspective

 

by Kelly Keenan

*Please note that reference footnotes have been removed from this article,

however a complete bibliography may be found at the end of the text.

 

In October 1945, representatives of fifty states gathered to form the United Nations (“U.N.”), an institution intended to “save succeeding generations from the scourge of war.”  To this end, Chapter VII of the U.N. Charter (“Charter”) bestowed upon the newly established Security Council (“Council”) broad powers to authorize military and non-military action in order to “maintain or restore international peace and security.” During the Cold War, disagreement among the permanent members precluded the Council from operating in all but a few instances.  In the last fifteen years, however, the Council has dramatically increased the use of its powers and has displayed a willingness to exercise those powers in response to a broad range of circumstances. 

The recent activism of the Council has raised questions by some states, particularly those of the South, about the proper scope of Chapter VII and the competence of the Council to act in certain situations.   Countries of the South are particularly apprehensive about the Council’s actions because they are denied full and equal participation in Council proceedings.  These are also the states most directly affected by actions taken pursuant to Council resolutions.  Accordingly, many states of the South have begun to advocate some form of institutional “check” on the Council’s powers.

One potential method of checking the Council’s powers is through judicial review[1] by the International Court of Justice (“ICJ” or the “Court”).[2]   Neither the Statute of the Court (“Statute”) nor the Charter explicitly provides the ICJ with a power of judicial review and, despite some discussion of the subject in various judgments, the Court has not made a firm pronouncement about its powers in this regard.   Nonetheless, as a potential check on the Council’s growing powers, judicial review offers significant advantages.  For countries of the South, which have displayed a growing acceptance of the ICJ as a forum for the resolution of international disputes, judicial review offers a balance against the inequities of the Council.  For the more reluctant countries of the North, judicial review may offer an opportunity to enhance the legitimacy of Council decisions and lend credibility to the Council process.   

This paper addresses the issue of judicial review, the challenges it presents and the benefits it offers, with an emphasis on the conflicts, different approaches and concerns of the South and North.   It begins with a discussion of the powers exercised by the Council, its composition and the methods it employs.  This is followed by a description of the legal constraints that bind the Council and a summary of the ICJ’s commentary on its judicial review powers.  Finally, judicial review is considered in light of the particular concerns of the South and North.

 

Security Council Chapter VII Decisions

 

Introduction

Under Article 39 of the Charter, the Council is given the power to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” and to make recommendations or take action in order to “maintain or restore international peace and security.”  The Charter authorizes the Council to, inter alia, enact sanctions or use force where necessary to fulfill its authorized function.  The Charter provides no further guidance to the Council regarding the circumstances necessary to invoke a Chapter VII response.  As a consequence, since the end of the Cold War, the Council has taken the opportunity to invoke its Chapter VII powers with increasing frequency and in response to a wide range of circumstances.  The Council has, inter alia, demarcated a boundary between two states, established a highly intrusive arms control regime for a state, established a claims commission and two international criminal tribunals, ordered humanitarian intervention, imposed an embargo to force reinstatement of an overthrown government and legislated all member states to take certain action to combat terrorism.

It is evident from this list that the Council’s exercise of its broad, ill-defined powers has the potential to impact, for better or for worse, the relationships between states, the ability of a state to exercise sovereignty over its territory and peoples and, perhaps most importantly, the everyday lives of an enormous number of people.  Remarkably, these significant powers are exercised by representatives of only 15 states on behalf of a U.N. membership of 191 states.   With such considerable powers concentrated in the hands of a few, the legitimacy of the Council is, in large part, dependent upon its ability to demonstrate that it is an equitable, democratic and truly representative body.  Unfortunately, the Council would have considerable difficulty establishing that it is any of those things.

 

Decision-Making by the Council

An obvious place to start when challenging the Council as an equitable, democratic and representative institution is the permanent membership.  In addition to gaining a permanent seat at the Council table, France, the U.K., the U.S., Russia[3] and China (the “P-5”) have been granted a veto power over all substantive decisions made by the Council.  Four of these states are “Western or pro-Western democracies” leaving China to speak for the entire developing world.  Even if it could assume the formidable task of representing such a large and diverse group, China has not accepted such a responsibility.  In fact, China often abstains on significant Chapter VII decisions and has been swayed to conform with the rest of the P-5 when a special interest of its own has been satisfied.  Countries of the South have described permanent membership and the veto as “obsolete”, “anachronis[tic]” and “relics of a bygone era.”

The ten non-permanent members of the Council are elected by the General Assembly (“Assembly”) represent an equitable geographic distribution of states.[4]   Despite this laudable requirement, the presence of permanent members combined with the fact that the world’s population is not equitably distributed across the earth’s surface, results in an unbalanced and unrepresentative Council.  European states currently comprise one-third of the Council’s membership.[5] 

Even if a state is fortunate enough to acquire a non-permanent seat, it faces additional obstacles to having its voice heard in the Council.  Former Council President Ambassador Keating of New Zealand notes that it takes most representatives “more than a year to get a sense of the workings of the Council and to begin speaking up in meetings and questioning the actions of the Permanent Five.”  Since election to the Council is only for two years, and consecutive terms are prohibited, most non-permanent members do not become “effective” until “their term is virtually up.”  Furthermore, the diversity of non-permanent member states makes it practically impossible for them to exercise a “non-aligned” veto by preventing permanent members from obtaining the required nine votes to pass a resolution.  The primacy of the Council over the Assembly, where developing countries represent a majority, and the further primacy of the P-5 over the Council “[makes] a mockery of the notion of sovereign equality among states.”

The opportunity for non-permanent members that are states of the South to freely engage in votes of the Council may be compromised by economic pressure imposed by the permanent members.  Developing states that receive aid from a permanent member may incur severe punishment for voting in a manner contrary to the interests of that member.  After abstaining from the vote that authorized the 1991 use of force against Iraq, the Yemeni Ambassador was told by his U.S. counterpart that it was “the most expensive vote [he had] ever cast.”  The U.S. immediately suspended more than $100 million in aid to Yemen.  One commentator notes that:

It seems that powerful states (particularly the U.S.) often resort to economic threats and blackmail—threats to cut-off aid, to block loans, to block trade deals and the like—to push smaller states into line on important resolutions.  Concrete cases are hard to document, but ambassadors constantly refer to the problem.  A number of small states are said to have refused to run for Council seats on the ground that they would expose themselves to too much abuse from powerful Council members.

During the recent Council debates over Iraq in 2003, six developing states that remained undecided on the impending vote were subject to enormous pressures from the feuding P-5 members.  France and Britain sent foreign ministers to tour the three African “undecideds” twice during the Council debates. The Assistant U.S. Secretary of State also visited two of the African countries, Guinea and Angola, both of which receive substantial aid from the U.S.  Conveniently, the U.S. announced at this time that its campaign to ease agriculture subsidies could open markets to developing country farmers.  Pakistan, which was one of the undecided states, received substantial reward for agreeing to support the U.S. anti-terrorism campaign.  The sanctions imposed on Pakistan as a result of its nuclear weapons program were lifted and it received $12.5 billion in debt restructuring.  Accordingly, questions about the potential economic coercion of developing, non-permanent states during contentious Council debates are certainly warranted.

An additional obstacle faced by developing countries is the lack of transparency at the Council level.  The tendency in recent years to conduct most Council work in private meetings, emerging into a public forum only to adopt resolutions and to give set speeches, is increasingly problematic for those states not on the Council.  This occurred during the period in which the Council addressed the conflict in Bosnia-Herzegovina; Chapter VII resolutions were negotiated in private and were subject to a “formal show of hands and some speeches in a public session.”  Often Assembly members fail to receive advance notice of resolutions that impact on their states.  Also problematic, in light of the Council’s exclusionary practices, is its repeated failure to detail in its resolutions the threat or breach of international peace and security that has prompted action.  

It is not only Assembly members that are excluded from Council proceedings.  The P-5 and P-3 (U.S., U.K. and France) often meet alone, drafting resolutions and determining policy.  The former Council member from New Zealand notes that non-permanent members often come to Council meetings and resolutions from the P-5 are presented “as a fait accompli.”  Former Ambassador Jaramillo of Colombia describes how he was “forced to stand outside the chamber where the [P-5] were meeting and ‘beg’ for pieces of information.” In this process, he explains, the non-permanent members get “informal, biased, and unreliable” information that “cannot be the basis of serious and responsible decision-making.”  As a result, the non-permanent members are denied democratic participation in Council proceedings.            

 

Conclusion

The activism of the post-Cold War Council has generated concern and criticism from developing states, which are distrustful of its inequitable and undemocratic composition and methods. Developing states on the Council are denied equitable representation, in the form of a disproportionate number of seats and an “unequal” vote, they wield less power and are subject to a coercive environment, and they are denied access to information and to significant Council negotiations.  The concerns of these states are heightened by the fact that action under Chapter VII has an almost exclusive impact on countries of the South.   The representative of Zimbabwe once commented that “[i]t is ironic that those who assiduously resist the democratization of relations among nations…are the most vocal in insisting on democratic governance within nations.”

Consequently, developing countries have begun to focus on whether the Council is acting beyond its legal authority. Countries of the South demand that, in making its decisions, the Council abide by, rather than create, international law.  Concerned about whether the Council is “overstep[ping] its boundaries”, these states are discussing possibilities for controls on the Council’s far-reaching powers. 

 

 

Overview of Judicial Review

 

Legal Constraints of the Council

Although there is still some academic commentary to the contrary, it is generally accepted that the Council is bound by legal constraints when it acts under Chapter VII. As stated by the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia in a recent case, the Council is “subjected to certain constitutional limitations” and “neither the text nor the spirit of the Charter conceives of the Security Council as unbound by law.”  The specifics of the limitations that bind the Council, however, are the subject of some debate.   

The Charter provides some guidance to the legal framework in which the Council operates.  The Charter states that the Council’s power must be exercised “in accordance with the purposes and principles of the [U.N.]” and further states that the first purpose of the U.N. is “to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace”   Article 103 indicates that conflicts between a state’s treaty obligations and Charter obligations are to be resolved in favour of the latter.

Many argue that the determination of what constitutes a threat to or breach of the peace is an entirely political decision and therefore exclusively within the purview of the Council.  With respect to the actions that the Council takes in response to a threat or breach, however, most commentators argue that there are some legal boundaries.  Specifically, they argue that the Council is constrained by the limitations imposed by the Charter (e.g. the mandate of the Council, the principles and purposes of the U.N.) and by principles of jus cogens.  For the purposes of this paper, it is sufficient to establish that the Council is generally regarded as bound by some legal constraints when it operates under Chapter VII and that, consequently, there is some basis on which a judicial review could be conducted.   

 

Pronouncements by the ICJ

No specific provision is made for judicial review in either the Statute or the Charter.  However, the concept of judicial review of Council decisions is not new.  The idea was raised (and rejected) at the San Francisco Conference of 1945 and has since received attention from the Court in four cases.  The Court has not yet had the opportunity to strike down a Council resolution and has not made an explicit pronouncement of its ability to do so.  However, the judicial commentary in these four cases does shed some light on the Court’s general attitude toward review and gives indications of how the Court may deal with this issue in the future. 

The Court first had occasion to comment on its review powers in Certain Expenses of the United Nations, which was an advisory opinion requested by the Assembly.  Unfortunately, the Court’s opinion contains contradictory statements regarding its powers of review.  At one point the Court seems to expressly reject the notion of review, stating that: “In the legal systems of States, there is often some procedure for determining the validity of even a legislative or governmental act, but no analogous procedure is to be found in the structure of the United Nations.”  However, later the Court recognizes that where action is taken for the fulfillment of one of the Charter’s stated purposes, there is a presumption that the act is intra vires.  This presumption of validity suggests a power of the Court to declare an action ultra vires where appropriate.  Judge Bustamente, in his separate opinion, embraced the concept of judicial review, noting that:

It cannot be maintained that the resolutions of any organ of the United Nations are not subject to review: that would amount to declaring the pointlessness of the Charter or its absolute subordination to the judgment, always fallible, of the organs.

            A similar problem with apparently contradictory statements from the Court arises in the advisory opinion given in the Namibia case.  The Court stated that it “does not possess powers of judicial review or appeal in respect of the decisions taken by the United Nations organs concerned.”  Later, however, the Court concludes that the decisions taken by the Council were in conformity with the Charter.  In the separate opinions, Judge Fitzmaurice adopts the review power whereas Judge Nervo concludes that the Court should not review Council decisions “without specific request to that effect.” 

            The most prolific source of commentary from the Court on its review powers is the Lockerbie case.  This case was advanced by Libya against the U.S. and the U.K. on grounds that these states had violated the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Sabotage) by attempting to have two Libyan nationals extradited.  Libya claimed that two Council resolutions aimed at securing surrender of the Libyans violated the Montreal Convention.   The difficult nature of the issues raised in this case prompted 11 separate Provisional Measures opinions.  However, Provisional Measures is “the first time a significant portion of the [ICJ] intimated it could exercise a power of judicial review in contentious cases.”  Several judges concluded that the Council resolutions were entitled to a presumption of validity, and one judge went so far as to declare a resolution invalid.  In Preliminary Objections, however, Judge Schwebel offers a lengthy and detailed argument against the Court having any judicial review powers.

            Finally, the Court again addressed judicial review in Genocide.  In this case, Bosnia sought provisional measures to stop Yugoslavia (Serbia and Montenegro) from committing allegedly genocidal acts.  During the course of its application, Bosnia argued that the Chapter VII resolution imposing an arms embargo on Yugoslavia (including Bosnia) violated its right to self-defense under the Charter.  Judge Lauterpacht, in his separate opinion, stated that to the extent the resolution supported the act of genocide it may be legally null and void.  However, Judge Lauterpacht stopped short of endorsing a review by the Court and suggested the matter be referred to the Council for further consideration. 

            Although the Court has not yet explicitly endorsed a judicial review power, these four cases reveal that its attitude toward the issue is evolving.  The judgments in Lockerbie, specifically, imply “that the international community is moving toward a broader acceptance of judicial review than the framers of the U.N. Charter perhaps envisioned.”  Given this growing acceptance, it is important to examine how countries of the South and North would respond to the Court’s adoption of such a power.  

 

 

 Check on the Council’s Powers – Is the ICJ an Appropriate Forum?

        

Attitudes Toward the ICJ

In examining whether the ICJ is an appropriate body for checking the Council’s powers, a good starting place is to look at state attitudes toward the Court.  If the ICJ does not have the respect of states as a credible forum for the resolution of international disputes, then a judicial review power would prove unproductive.  Below, the attitudes of developing countries are examined first, followed by those of developed countries.

Immediately following its creation after WWII, and for the following 15 years, the Court was seen primarily as a Western institution.   The Court contained a disproportionate number of judges from developed countries and was used almost exclusively by the U.S. and Western European states.  During the period of decolonization, developing states continued to demonstrate a reluctance to use the Court.  Although some commentators suggest that this was the result of a different cultural attitude toward adjudication as a method of dispute resolution, the favoured opinion focuses on the attitude of developing states toward international law generally.   Having just emerged from a period of colonization, states of the South viewed international law “as a regime…of domination and subordination” and questioned its “objectivity, universality and effectiveness.”   Developing countries were interested in changing the legal status quo, rather than appearing before a court that was expected to enforce the current, unsatisfactory legal regime.

An important event in the evolution of the Court occurred following the 1966 judgment in South West Africa. In this case, two African states challenged the extension of South Africa’s apartheid regime into the U.N. Mandate[6] that it administered.  The Court denied jurisdiction on the ground that the two African states did not have a sufficient legal interest to bring the case.  The judgment was very technical in nature and reflected a strict positivist approach.  It was viewed as a “‘Western’ or ‘white man’s’ vote” and resulted in a “political disaster for the Court.”  Through the 1960s and 1970s, the Court’s popularity plummeted.  However, the case served as a catalyst for change in the approach taken by the Court’s judges.  Gradually, there was movement away from positivism toward a more “sociological” and “policy-oriented” approach to the legal process.  In 1971, the ICJ effectively reversed its 1966 approach in Namibia.

            This change, along with changes to the composition of the Court, led to a greater acceptance of the ICJ by states of the South.  In the 1960s, 50% of cases were brought by developing countries; during the 1980s it was nearly 80%. It is not just the percentage of cases brought by developing countries that increased, but also the number of cases on the docket of the ICJ.  The 1990s were the Court’s busiest years with 86% of the cases brought by developing countries.  Certainly it can be said that the ICJ has a new popularity among developing countries and that the “principle of judicial settlement of disputes is no longer – if it ever was – an esoteric, ‘Western’, even purely U.S….notion.”

            The increasing percentage of ICJ cases that are brought by developing countries is obviously paralleled by a decreasing number of cases in which developed states are the applicant.  The 1990s reflect a perfect equilibrium in the sense that developed countries, which comprise 14% of the U.N. membership, were responsible for 14% of the Court’s docket.  Despite this apparent balance, developed states have demonstrated a change in attitude toward the ICJ as a forum for the resolution of certain disputes.  A developed country has not brought a claim against a developing country since 1979.  This demonstrates some disinclination to use the ICJ for this type of dispute.  Western states, predominantly the U.S., have increasingly accused the Court of having an anti-Western bias.

The change in attitude of the U.S. was most evident following the Court’s decision in Nicaragua.  The U.S. maintained that the matters at issue in the case were “political” and therefore unsuitable for resolution by a court.  Following the Court’s holding that it had jurisdiction to hear the case, the U.S. announced that it would no longer participate in the proceedings.  Several months later, the U.S. withdrew its acceptance of the Court’s compulsory jurisdiction.  The Court and its judges became the targets of much U.S. criticism.  The “Court’s composition” was decried as a “source of institutional weakness” and the U.S. stated that the evidence it would have had to present to support Nicaragua’s aggression was too sensitive to put before judges from Warsaw Pact Nations. 

            Despite all of this distrust expressed by the U.S. toward the Court, the impact of the Nicaragua case has been nothing like that of South West Africa.   Western countries, including the U.S., have continued to appear before the Court.  In fact, since Nicaragua the U.S. has appeared before the Court in six cases, once as an applicant.  Furthermore, although developed states represent approximately 14% of the U.N. membership, they account for 28.5% of compulsory jurisdiction declarations filed with the Court.  Accordingly, it is fair to say that the Court currently enjoys a significant level of popularity from both developed and developing states.  This confidence in the Court is critical if the ICJ is to provide a forum for checking the powers of the Council.

 

Just and Equitable?

In examining whether the Court is an appropriate forum for checking the powers of the Council, it is also important to question the operation of the Court from a more objective perspective.  Does the ICJ provide a just and equitable forum for the resolution of international disputes?

As mentioned earlier, the composition of the Court has changed over time to provide a more equitable geographic representation of judges on the bench.  Unlike the Council, there is no specific provision in the Statute for this type of arrangement nor is there a requirement that the P-5 be guaranteed permanent seats. Article 2 of the Statute states that the Court “shall be composed of a body of independent judges, elected regardless of their nationality.”[7] Nonetheless, custom dictates that there be four Western European judges (including the U.K. and France), two Latin American judges, two sub-Sahara African judges, three Asian judges (including China), two former Soviet block judges (including Russia), one North African judge and one North American judge (U.S.)[8]  Although this does not equitably reflect the distribution of the earth’s population,[9] it provides a less skewed composition than the Council.  Currently there are eight developing country representatives sitting on the ICJ bench, each with the same “vote” as all other members.  Furthermore, it meets the standard suggested in Article 9 of the Statute that “in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured.”

The mechanisms by which the Court operates also ensure that the “principal legal systems of the world” are “assured.”   The preparation of the judgments of the Court is a long and arduous process, in part because it ensures that each of the 15 judges is intimately involved in the final product.  This process also produces impartial results.  Studies of decisions of the Court “have demonstrated that the reduction of judicial outcomes to nationality is not justified.”  Furthermore, there is no statistically significant evidence of “factional voting or … ideological or regional voting alignments.” Consequently, the Court offers an impartial and just forum for dispute resolution.

 

Judicial Review - Advantages and Disadvantages

Judicial review is not the only possible method of checking or legitimizing the exercise of powers by the Council. Reform of the Council is appealing for countries of the South and may be considered in addition to, not necessarily as an alternative to, judicial review.  Reform provides its own challenges, not least of which is a highly politicized dialogue amongst members of the international community who are divided on the specifics of what changes should be instituted.  By comparison, a unique aspect of judicial review is that it offers a legal, rather than political, institution that can provide an independent assessment of the Council’s acts. 

Unfortunately, resort to a legal mechanism for checking the Council’s powers also has several disadvantages, particularly for developing countries.   First and foremost, using the Court is expensive.  Developing countries do not have the same international litigation resources, including lawyers with international law expertise, as do developed states.  These states often must hire non-nationals to appear in the Court,[10] an expensive prospect particularly for states with limited economic resources.   This also poses another challenge for developing countries.  Many of these governments are reluctant to retain outside counsel when the issue is of great political importance or is politically sensitive.  To help defray the costs of ICJ litigation for countries of the South, a trust fund was established by the Secretary-General in 1989 to which states could apply for monetary assistance.  Unfortunately, however, the fund has proven inadequate.  Contributions to the fund are voluntary, and thus far have failed to accumulate a substantial trust.  

Furthermore, funding is available only where the dispute has been submitted by an ad hoc agreement, which has occurred in 5 of 41 cases since the fund was established. 

There are additional challenges to using judicial review as a check on the Council.  One such challenge is that judicial review is primarily a Western construct; it is not a common part of legal systems in the South.  Despite this, developing countries have not rejected the idea of the Court having such a power.  In fact, at the time that judicial review was advocated by Belgium at the Conference in 1945, several developing states supported it.  Furthermore, the two attempts that have been made to have the ICJ pronounce on the legality of Council resolutions have been initiated by developing countries.

A further obstacle to judicial review is that the jurisdiction of the ICJ is dependent upon the consent of both parties to a dispute.  This makes it more difficult to ensure that a matter will actually be adjudicated upon by the Court.  Those states who view Council issues as entirely political may be able to deny their elevation to the Court by challenging the Court’s jurisdiction.  This obstacle speaks more to the need for a diversity of approaches to the problem of an inequitable and unchecked Council, rather than to a weakness of judicial review itself.  Review cannot be seen as a cure-all for the problems that arise by virtue of the Council’s exercise of its Chapter VII powers.  It simply offers one means of checking those powers where the issue arises as a consequence of a dispute between two parties or where the majority of a U.N. body seeks the opinion of the Court on such a matter.  Review should not be viewed as a substitute for Council reform of any kind.  Furthermore, the consent that is required by both states to have the ICJ adjudicate a dispute increases the likelihood that states will respect and abide by the Court’s Orders.  If the Court exercises a power of judicial review, respect for and adherence to the Council’s decisions will strengthen the legitimacy and credibility of the review power.  Although the process may be slow, the expectation is that this would lead to an increased acceptance of review among currently reluctant developed states.

A final challenge for the review process is procedural in nature.  If the Court hears a judicial review matter, the Council cannot be a party before the ICJ.  Accordingly, there is no advocate acting on behalf of the Council. Judicial review of a Council decision in the ICJ, however, is to be distinguished from judicial review of a domestic administrative decision.  In ICJ contentious proceedings where a review is undertaken, it may often be the case that a Council member is one (or both) of the parties before the Court.  In such a circumstance, the Council will have an advocate in the proceedings.  Where neither party (or only the party challenging the resolution) is a Council member, procedural safeguards may need to be implemented to ensure the fairness of the hearing.  This could amount to written submissions on behalf of the Council members who voted in favour of the resolution at issue and may not necessitate the Council taking part in oral argument. 

The obstacles described above are by no means insurmountable, and offer insufficient reason to reject judicial review altogether.  This is particularly true given that judicial review is not offered as a solution for all of the problems that arise as a consequence of the undemocratic exercise of power in the Council.  Furthermore, the judicial review of Council decisions offers both the U.N. membership, and the U.N. institution, considerable advantages. 

First, the Council “will not gain in credibility, authority and efficiency unless the conviction takes root that it acts not as an institution above the Charter and international law but as their servant.”  Thus, review provides an opportunity to enhance not only the credibility, but also the legitimacy of the Council.  This is significant for countries of both the South and the North.  For the former, a “structural restraint” on the behaviour of the Council is preferable to “depending on the good will of the more powerful nations.”

As stated by a Colombian delegate to the United Nations: [H]aving recourse to a separate and independent body, particularly at the current time when the Council takes decisions very frequently about such diverse subjects and makes exaggerated use of Chapter VII of the Charter, would bring about a greater sense of responsibility in the exercise of the authority delegated to Council members by all States, prevent abuses of authority and confer legitimacy on the actions of the Council.

Through judicial review, the ICJ provides a forum in which developing countries, as equal players, can challenge undemocratic Council decisions.  This legitimizes the Council by providing a check on its exercise of power.  As stated by former ICJ Judge Bedjaoui: [H]ow can one conceivably imagine any real democratization of the United Nations without raising inter alia the fundamental problem of controlling the acts of the political organs, above all the kingpin, the Security Council? The primary structural elements of any democracy are weights and counterweights, checks and balances. 

 

Control over power is at the heart of democracy.

For the more reluctant states of the North, particularly the U.S., it provides a means of disputing accusations that the Council pursues U.S. interests with little regard for international law. As noted by two commentators:

The US-UN relationship confronts the United States and other member states with difficult problems of balance.  If the United States pursues its objectives through the UN, it risks accusations of dominance, and if it does not it is accused of unilateralism. 

Through judicial review, Council decisions could be validated.  Although this provides benefit to the U.S. and other developed states, particularly those in the P-5, it will likely take some time before these states are willing to concede such a power to the Court.

            A final benefit that judicial review offers is consistency.  Currently, a state can legally challenge multilateral action taken against it so long as that action was not U.N.-sponsored.[11]  However, multilateral action taken under U.N. auspices is protected from legal challenge.  This is an inconsistency that should be rectified.  Review also resolves the potential problem of a state being bound by inconsistent pronouncements from the Council and the Court.

 

Conclusion

For countries of the South, the Council’s increased and more expansive use of its Chapter VII powers in the last 15 years has raised cause for alarm.  Although developing countries are significantly impacted by the exercise of Chapter VII powers, they are unequal participants in the process of Council decision-making. Developing countries have begun to question whether the Council is acting beyond its legal authority and have, accordingly, called for some form of institutional check on the Council’s powers. 

Judicial review by the ICJ provides such a check.  Although review has not been embraced by the Court in its judgments, the Court’s has demonstrated a more favourable attitude toward review in recent years.  At the same time, developing countries have displayed a growing acceptance of the ICJ as an appropriate and respected forum for the resolution of their international disputes.  Although developed states are more reluctant participants in the Court’s processes, they have continued to demonstrate a significant interest in accepting the jurisdiction of the Court.  In addition to commanding substantial respect from the international community, the Court provides an impartial and equitable forum for adjudication.  Accordingly, the ICJ offers an appealing “institutional check” on the Council.

Judicial review should not be viewed as the only means of controlling or affecting the manner in which the Council operates under Chapter VII.  It is not, for example, a substitute for Council reform.  However, as a legal, as opposed to political, means of checking the Council, judicial review is unique.  There are some challenges to review, including a lack of funds and expertise for countries of the South and the absence of a procedural mechanism for allowing those states who supported an impugned resolution to defend it before the Court.  However, judicial review offers to countries of both the South and the North a significant opportunity to enhance the credibility and legitimacy of Council decisions.  It does this by advancing the primary purpose of the U.N., as envisaged by the drafters of the Charter over 50 years ago, to ensure that the settlement of international disputes which might lead to a breach of the peace is accomplished “in conformity with the principles of justice and international law.” 

 

Bibliography

 

Secondary Sources: Articles and Books

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Bedjaoui, Mohammed.  The New World Order and the Security Council: Testing the Legality of its Acts (Norwell, MA: Kluwer Academic Publishers, 1994).

Crock, Stan & Walczak, Lee.  “Dollar diplomacy: Short on funds, the White House tries wooing allies with its wallet” Business Week 3823 (10 March 2003) 32.

Duke, Lynne.  “Small nations suddenly come to the fore at UN” Vancouver Sun (13 March 2003) A9.

Eyffinger, Arthur.  The International Court of Justice (Cambridge: Kluwer Law International, 1996).

Franck, Thomas M. Judging the World Court (New York: Priority Press Publications, 1986).

King, Faiza Patel.  “Sensible Scrutiny: The Yugoslavia Tribunal’s Development of Limits on the Security Council’s Powers Under Chapter VII of the Charter” (1996) 10 Emory International Law Review 509. 

Kirgis Jr., Frederic L.  “The United Nations at Fifty: The Security Council’s First Fifty Years” (1995) 89 A.J.I.L. 506.

McWhinney, Edward.  The International Court of Justice and the Western Tradition of International Law: The Paul Martin Lectures in International Relaitons and Law (Hingham, MA: Kluwer Academic Publishers, 1987).

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Case Law

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) Order of 13 September 1993, [1993] I.C.J. Rep. 325.

Certain Expenses of the United Nations, Advisory Opinion, [1962] I.C.J. Rep. 151.

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [1971] I.C.J. Rep. 16.

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), [1986] I.C.J. Rep. 14.

Prosecutor v. Tadic (1995) Case No. IT-94-1-AR72 (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber). 

Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Order of 14 April 1992, [1992] I.C.J. Rep. 3.

Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), [1998] I.C.J. Rep. 9.   

South West Africa (Ethiopia v. South Africa; Liberia v. South Africa) [1966] I.C.J. Rep. 6.