The International Court of Justice and the Judicial Review of Security Council Decisions

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The present research has examined a question of whether the International Court of Justice may examine the legality or validity of Security Council resolutions adopted under Chapter VII of the Charter of the United Nations. This important question has been raised before the Court in the Lockerbie cases which are still pending before it. Opinions expressed by international lawyers and individual judges of the Court naturally differ. Neither the Charter nor the Statute has any explicit provision concerning the question of judicial review. The current controversy is, to a certain extent, a natural result of this silence in the constituent instruments.In order to examine the question at issue, a distinction should first be made on the meaning of "power of judicial review", namely a distinction between a judicial review power in a constitutionally institutionalized sense (institutional review power) and the one incidental to the proper exercise of judicial function of a court (incidental re … More view power). While the former is familiar to some national constitutional courts, it is unknown to the International Court of Justice. This fact, though, does not necessarily prevent the Court from exercising the second type of review function, the incidental review power. Where the Court takes the view that its correct decision could not, in a given case duly brought before it, be rendered without examining the validity of specific resolutions of the United Nations, it could and should do so, for this would fall within the proper sphere of its judicial function. Lack of an express power of review is not determinative. What is more important is a lack of an express prohibition from engaging in the latter type of the review function.This appears to be the position actually taken by the Court, as shown in its opinions in the Certain Expenses and the Namibia cases. It is true that these opinions of the Court were expressed in the advisory cases requested to it by the Security council and the General Assembly respectively. There is, however, no reason to believe that the Court should take a different approach in case of contentious proceedings if a similar situation occurs as in the Lockerbie cases. Should the Court engage in judicial review of the Security Council decisions in these cases, it would no doubt, as a case prima impressionis of the Court in contentious proceedings, mark a great milestone in the course of promoting for the rule of law in the international community as a whole. Less