Published online by Cambridge University Press: 27 February 2017
The relationship between the International Court of Justice and the Security Council may be approached from the perspective of the United Nations Charter and the way it delimits competences between two principal UN organs and regulates the exercise of their concurrent powers. The Court, however, has a dual, ambivalent role. It is not only the principal judicial organ of the United Nations under Article 92 of the Charter; it is also an autonomous adjudicative body with the function, under Article 38 of its Statute, of applying international law to such disputes between states as are brought before it. Viewed in the light of Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie, the relationship between the judicial and political organs raises some fundamental questions of general international law that go beyond UN constitutional issues.
1 By contrast, the Permanent Court of International Justice, though closely related to the League of Nations, was independent of it.
2 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. UK; Libya v. U.S.), Provisional Measures, 1992 ICJ Rep. 3, 114 (Orders of Apr. 14) [hereinafter Lockerbie].
3 Aegean Sea Continental Shelf (Greece v. Turk.), Interim Protection, 1976 ICJ Rep. 3 (Order of Sept. 11); United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3 (May 24) [hereinafter Hostages]; Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Provisional Measures, 1984 ICJ Rep. 169 (Order of May 10) [hereinafter Nicaragua Provisional Measures]; Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392 (Nov. 26) [hereinafter Nicaragua Jurisdiction].
4 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina v. Yugo. (Serbia & Montenegro)), Provisional Measures, 1993 ICJ Rep. 325 (Order of Sept. 13).
5 See Jean-Marc Sorel, Les Ordonnances de la Cour Internationale de Justice du 14 avril 1992 dans I’affaire relative a des questions d’interprétation et d’application de la Convention de Montréal de 1971 résultant de l’incident aérien de Lockerbie, 97 Revue Générale de Droit International Public [RGDIP] 689 (1993); Fiona Beveridge, The Lockerbie Affair, 41 Int’l & Comp. L.Q. 907 (1992); Christian Tomuschat, The Lockerbie Case Before the International Court of Justice, Rev. Int’l Comm’n Jurists, June 1992, at 38, 43–48; Marc Weller, The Lockerbie Case: A Premature End to the “New World Order”?, 4 J. Afr. Soc’y Int’l & Comp. L., pt. 2 at 302 (1992).
6 For the joint U.S.-UK communique, see UN Doc. S/23308 (1991). On November 14, 1991, the Lord Advocate of Scotland announced that charges had been brought against two Libyan nationals, Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah, alleged to be members of the Libyan Intelligence Services. Simultaneously, the two suspects were indicted by a grand jury of the United States District Court for the District of Columbia. After the destruction of Union de Transports Aeriens Flight 772 over Niger in September 1989, France had also indicated, by a communique dated September 19, 1989 (UN Doc. S/23306 (1991)), that a judicial inquiry pointed to the involvement of Libyan nationals. Contrary to the United States and the United Kingdom, however, France merely requested the cooperation of Libya with its continuing investigations and did not claim a duty of extradition. See also UN Docs. S/23309, S/23307 and S/23317 (1991). For documents cited in this note, see 31 ILM 717 (1992).
7 The issues arising out of the attack against UTA Flight 772 were also included in the Council’s resolution but were not in issue before the Court. SC Res. 731 (Jan. 21, 1992), reprinted in 31 ILM at 732.
8 Sept. 23, 1971, 24 UST 564, reprinted in 10 ILM 1151 (1971) [hereinafter Montreal Convention].
9 Article 1 covers any person who unlawfully and intentionally “destroys an aircraft in service or places or causes to be placed in any aircraft in service by any means whatsoever, a device or substance which is likely to destroy that aircraft.”
10 Other alleged breaches of the Convention by the United Kingdom and the United States were of Article 5(2), by preventing Libya from establishing its jurisdiction over the alleged offenders present in its territory; Article 5(3), by preventing Libya from exercising criminal jurisdiction under its national law; Article 8(2), by which extradition is subordinated to national law; and Article 11, by refusing judicial assistance in connection with criminal proceedings. 1992 ICJ Rep. at 4–6, 115–17.
11 Id. at 6–7, 117–18.
12 See also Rules of Court 73–75, reprinted in 73 AJIL 748, 771–72 (1979). Article 41, as the Court stated in Electricity Co. of Sofia and Bulgaria (Interim Protection), merely applies a universally accepted principle “that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute.” 1939 PCIJ (ser. A/B) No. 79, at 199 (Order of Dec. 5).
13 1992 ICJ Rep. at 7–8, 118–19.
14 SC Res. 748 (Mar. 31, 1992), reprinted in 31 ILM at 749.
15 The sanctions envisaged by Resolution 748 subsequently went into effect on the designated date, which was the day after the Court rendered its decision on provisional measures. These sanctions were reinforced on November 11, 1993, by Resolution 883, which provided for an extension of the measures on December 1, 1993, should Libya continue not to comply with Resolutions 731 and 748.
16 Nicaragua Provisional Measures, 1984 ICJ Rep. at 179; see also Nuclear Tests (Austl. v. Fr.), Interim Protection, 1973 ICJ Rep. 99, 101 (Order of June 22); and Passage through the Great Belt (Fin. v. Den.), Provisional Measures, 1991 ICJ Rep. 12, 15 (Order of July 29).
17 Montreal Convention, supra note 8, Art. 14(1).
18 See Submission of Counsel for Libya, ICJ Verbatim Record CR 92/5, at 30–35 (1992). Libya addressed several communications to the Security Council requesting the cooperation of the United Kingdom and the United States in its investigations and declaring its willingness to negotiate. See UN Docs. S/23221, S/23226 (1991), and S/23396, S/23416 (1992). Its request for arbitration is dated January 18, 1992. It also expressed its willingness to cooperate with the Secretary-General and proposed, on various occasions, that the two suspects be surrendered to the United Nations, the Arab League, the judicial authorities of a third country or an international judicial or arbitral body. See Report of the Secretary-General pursuant to paragraph 4 of Security Council Resolution 731 (1992), UN Doc. S/23574 (1992); Further Report by the Secretary-General pursuant to paragraph 4 of Security Council Resolution 731 (1992), UN Doc. S/23672 (1992).
On the six-month limit, see also Mavrommatis Palestine Concessions (Jurisdiction), 1924 PCIJ (ser. A) No. 2, at 13 (Aug. 30); South West Africa Cases (Eth. v. S. Afr.; Liber, v. S. Afr.), Preliminary Objections, 1962 ICJ Rep. 319, 345–46 (Dec. 21); Nicaragua Preliminary Objections, 1984 ICJ Rep. at 515–16 (Ago, J., sep. op.). Judge Bedjaoui notes that in the context of the choice Libya was made to face between non-negotiable extradition and the adoption of Security Council sanctions, the very notion of a six-month limit, as well as that of a negotiating process, was meaningless. Lockerbie, 1992 ICJ Rep. at 35–36, 145–46 (Bedjaoui, J., dissenting); see also 1992 ICJ Rep. at 50–52, 160–62, and 82–84, 187–89 (Weeramantry & Ajibola, JJ., respectively, dissenting).
19 1992 ICJ Rep. at 23, 135 (Ni, J., Declaration).
20 This appears to have been the contention of the United States in asking the Court to reject Libya’s request. Submission of Counsel, ICJ Verbatim Record CR 92/4, at 28–30 (1992). The United Kingdom, however, asked the Court to decline to indicate interim measures, thereby implying that the request was admissible. Submission of Counsel, id., CR 92/3, at 43–69. See 1992 ICJ Rep. at 9 and 121, respectively; Sorel, supra note 5, at 694.
21 See 1992 ICJ Rep. at 18, 130 (Oda, J., Declaration); 1992 ICJ Rep. at 38–40, 148–50, and 84–85, 189–90 (Bedjaoui & Ajibola, JJ., dissenting). These conditions for the indication of provisional measures have evolved in the jurisprudence of the Court. See, e.g., Fisheries Jurisdiction (UK v. Ice.), Interim Protection, 1972 ICJ Rep. 12, 16 (Order of Aug. 17); Aegean Sea Continental Shelf, supra note 3, 1976 ICJ Rep. at 11; Frontier Dispute (Burkina Faso/Mali), Provisional Measures, 1986 ICJ Rep. 3, 8–10 (Order of Jan. 10); Passage through the Great Belt, supra note 16, 1991 ICJ Rep. at 15.
22 1992 ICJ Rep. at 19, 131.
23 1992 ICJ Rep. at 46, 156.
24 This is not the same contention as that made by Denmark in Passage through the Great Belt, where it claimed that Finland had to show not only a prima facie basis for jurisdiction on the merits, but also the prima facie existence of rights to be protected. Provisional Measures, supra note 16, 1991 ICJ Rep. at 17.
25 1992 ICJ Rep. at 15, 126–27 (emphasis added).
26 For the judges upheld its nonmandatory nature, and viewed it as an exercise of the Council’s powers under chapter VI of the Charter, in particular Articles 33(2), 34 and 36(1). See, e.g., id. at 87, 192 (Ajibola, J., dissenting). See also W. Michael Reisman, The Constitutional Crisis in the United Nations, 87 AJIL 83, 87 (1993). He writes that Resolution 731 could also be viewed as a nonbinding recommendation under Article 39 of chapter VII. It should be pointed out, however, that the resolution does not contain a formal determination under Article 39, the essential prerequisite for the application of mandatory measures under chapter VII.
27 1992 ICJ Rep. at 46–47, 156–57. Judge Bedjaoui also believed this to be a case of retroactive application of an issue the parties had not had an opportunity to debate. Id. at 41, 151.
28 See Rule 75(1), Rules of Court, supra note 12; 1992 ICJ Rep. at 48–49, 158–59 (Bedjaoui), 70–71, 181 (Weeramantry), and 88–90, 193–95 (Ajibola) (all dissenting). See also Legal Status of the South-Eastern Territory of Greenland (Interim Protection), 1932 PCIJ (ser. A/B) No. 48, at 287–88 (Order of Aug. 2); Electricity Co. of Sofia and Bulgaria, supra note 12, at 199; Anglo-Iranian Oil Co. (UK v. Iran), Interim Measures, 1951 ICJ Rep. 89, 93 (Order of July 5); and Frontier Dispute, supra note 21, 1986 ICJ Rep. at 9 (ordering provisional measures propria motu against both parties independently of any request made by either party).
29 1992 ICJ Rep. at 29, 141.
30 1992 ICJ Rep. at 27, 139 (Lachs, J., sep. op.).
31 1992 ICJ Rep. at 22, 134 (quoting Nicaragua Jurisdiction, 1984 ICJ Rep. at 434–35) (Ni, J., Declaration).
33 UN Doc. S/PV.3033, at 13–14 (1992).
34 See, e.g., Submission of Counsel for United States, ICJ Verbatim Record CR 92/4, at 10 (1992); UN Doc. S/PV.3033, supra note 33.
35 A dispute has been defined as “a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.” Mavrommatis Palestine Concessions, supra note 18, at 11. “[I]t must be shown that the claim of one party is positively opposed by the other.” South West Africa Cases, supra note 18, 1962 ICJ Rep. at 328. See also Case concerning the Northern Cameroons (Cameroon v. UK), Preliminary Objections, 1963 ICJ Rep. 15, 27–28 (Dec. 2); Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, 1988 ICJ Rep. 12, 28 (Advisory Opinion of Apr. 26).
36 Hersch Lauterpacht, The Function of Law in the International Community 4–7 (1933).
37 Emmerich de Vattel, Le Droit des Gens, bk. II, ch. xviii (Carnegie ed., Charles G. Fenwick trans., 1916) (1758).
38 Convention for the Pacific Settlement of International Disputes, July 29, 1899, 32 Stat. 1779, 1 Bevans 230, and Oct. 18, 1907, 36 Stat. 2199, 1 Bevans 577. For a history of international arbitration, see Hans von Mangoldt, Arbitration and Conciliation, in Max Planck Institute for Comparative Public Law and International Law, Judicial Settlement of International Disputes 417 (1974).
39 Oct. 14, 1903, 194 Consol. TS 194, 195.
40 Arbitration Convention, Oct. 16, 1925, Ger.-Belg., Art. 1, 54 LNTS 303; Arbitration Convention, Oct. 16, 1925, Ger.-Fr., Art. 1, 54 LNTS 315.
41 Sept. 26, 1928, 93 LNTS 343.
42 One of four texts approved on December 15, 1992, by the CSCE Council in Stockholm, reprinted in 32 ILM 551, 557 (1993). It is based on the concept of subsidiarity. The disputes in question concern “territorial integrity, national defence, title to sovereignty over land territory, or competing claims with regard to jurisdiction over other areas.” Id. at 564, Art. 26(2). The draft Convention was preceded by initiatives that also reflect this distinction. See, e.g., Doc. CSCE/II/B/1 (Sept. 18, 1973) (Swiss initiatives concerning Draft Conventions on a European System for the Peaceful Settlement of Disputes). See further Lucius Caflisch, Vers des mécanismes pan-européens de règlement des différends, 97 RGDIP 1 (1993); Victor-Yves Ghébali, La CSCE et la transformation des relations intemationales en Europe, in The Peaceful Settlement of International Disputes in Europe: Future Prospects 529, 554–64 (Daniel Bardonnet ed., 1991).
43 Corfu Channel case (Preliminary Objection), 1948 ICJ Rep. 15, 17 (Mar. 25). The General Assembly also recommended in Resolution 171 (II) of November 14, 1947, that states submit their legal disputes to the ICJ.
44 Article 13 of the Covenant, however, did not refer to “legal disputes” but to ”those which are generally suitable for submission to arbitration or judicial settlement.” Article 36(2) of the old Statute established jurisdiction of the Court “in all or any of the classes of legal disputes” concerning the four different subjects enumerated; hence, jurisdiction could be restricted by the parties to one or another of these classes of disputes. See Lauterpacht, supra note 36, at 35 n.1; 1 Shabtai Rosenne, The Law and Practice of the International Court 94 (1965); Edward Gordon, “Legal Disputes” under Article 36(2) of the Statute, in The International Court of Justice at a Crossroads 183, 183–84 (Lori Fisler Damrosch ed., 1987).
45 Rosenne, supra note 44, at 94. See also references cited in Mangoldt, supra note 38, at 507 n.387.
46 Domingo E. Acevedo, Disputes under Consideration by the UN Security Council or Regional Bodies, in The International Court of Justice at a Crossroads, supra note 44, at 242, 246, points out that the term “political” dispute should be distinguished from the term “nonjusticiable” dispute. For Articles 36(2) and 65(1) of the Statute, he observes, can refer only to situations not susceptible of legal determination, whereas the concept of justiciability can embrace all disputes.
47 See Rosenne, supra note 44, at 99; Gordon, supra note 44, at 190. The terms “jurisdiction” and “competence” appear to have been used interchangeably. See, e.g., ICJ Statute, ch. II (as well as the French version). Whatever the terms used, there are two aspects of jurisdiction or competence: the general field in which the Court exercises and is entitled to exercise its functions, whether ratione materiae, personae or temporis, and its competence to hear and determine a particular case. See 1 Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice 109–11 (1986); 2 id. at 434–38. For Rosenne, supra note 44, at 301–02, the term “competence” is broader than “jurisdiction” and includes both jurisdiction and the element of the propriety of the Court’s exercise of jurisdiction. See, however, infra note 78, regarding the distinction between competence and admissibility.
48 Hostages, supra note 3, 1980 ICJ Rep. at 20. Again:
It is for the Court, the principal judicial organ of the United Nations, to resolve any legal questions that may be in issue between parties to a dispute; and the resolution of such legal questions by the Court may be an important, and sometimes decisive, factor in promoting the peaceful settlement of the dispute.
Id. at 22.
49 The United States, however, was not arguing that international law was not relevant or fell outside the category of “legal disputes” under Article 36(2). See Acevedo, supra note 46, at 242–44.
50 Nicaragua Jurisdiction, supra note 3, 1984 ICJ Rep. at 435. But see Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 220–37 (June 27) (Oda, J., dissenting) (considering that the dispute did not fall into the category of a legal dispute within Article 36(2) of the Court’s Statute) [hereinafter Nicaragua Merits]. See also Aegean Sea Continental Shelf (Greece v. Turk.), 1978 ICJ Rep. 3, 12–13 (Dec. 19); Taslim O. Elias, The International Court of Justice and Some Contemporary Problems 57 (1983).
51 E.g., Admission of a State to the United Nations (Charter, Art. 4), 1948 ICJ Rep. 57, 61 (Advisory Opinion of May 28) [hereinafter UN Admission]; Competence of Assembly regarding admission to the United Nations, 1950 ICJ Rep. 4, 6–7 (Advisory Opinion of Mar. 3).
52 Rosenne, supra note 44, at 23. See also Alain Pellet, Le Glaive et la balance. Remarques sur le role de la C.I.J, en matiere de maintien de la paix et de la securite Internationales, in International Law at a Time of Perplexity 539, 539–40 (Yoram Dinstein ed., 1989).
63 See, e.g., Customs Regime between Germany and Austria, 1931 PCIJ (ser. A/B) No. 41, at 3 (Advisory Opinion of Sept. 5). Rosenne, supra note 44, at 10–14.
54 The present Court’s caseload has shown how far it has come since the Free Zones of Upper Savoy and the District of Gex, 1932 PCIJ (ser. A/B) No. 46, at 162 (June 7), in which the Permanent Court stated that “the interplay of economic interests” posed questions “outside the sphere in which a Court of Justice, concerned with the application of rules of law, can help in the solution of disputes between two States.” However, Mangoldt, supra note 38, at 508 n.377, points out:
It is certainly correct that the Court made a declaration, from which generalizations may be drawn, on the necessary preconditions regarding substance for the existence of a legal dispute. But it deduced the lack of these preconditions in the case in point not from the nature of the dispute but from the terms in which the question was framed by the parties.
55 See Hans Kelsen, Principles of International Law 526 (R. W. Tucker ed., 2d rev. ed. 1966), quoted in Rosalyn Higgins, Policy Considerations and the International Judicial Process, 17 Int’l & Comp. L.Q. 58, 61, 74 (1968). Higgins refers to another distinction that has been made between political and legal disputes, in the sense of meaning that judges are concerned with applying rules of law, whereas political, humanitarian, social and moral considerations are outside their purview. This she rejects, since she considers that “the assessment of ‘extra-legal’ considerations is part of the legal process,” Higgins, supra, at 61. See also Rosenne, supra note 44, at 94; see generally André Beirlaen, La Distinction entre les différends juridiques et les différends politiques dans la pratique des organisations internationales, 1975 Revue Belge de Droit International 405; Hermann Mosler, Problems and Tasks of International Judicial and Arbitral Settlement of Disputes Fifty Years after the Founding of the World Court, in Judicial Settlement of International Disputes, supra note 38, at 3, 10–11; Hermann Mosler, Political and Justiciable Legal Disputes. Revival of an Old Controversy, in Contemporary Problems of International Law: Essays in Honour of Georg Schwarzenberger 216 (Bin Cheng & Eddie Brown eds., 1988).
56 Since the Statute forms an integral part of the Charter (Article 92 of the Charter), the two instruments must be interpreted together as an integral whole. See Judge Schwebel’s Dissenting Opinion in Elettronica Sicula S.p.A. (ELSI) (U.S. v. Italy), 1989 ICJ Rep. 15, 96 (July 20). This organic connection between the Court and the United Nations appears to have been upheld in other cases. See Stephen M. Schwebel, Relations between the International Court of Justice and the United Nations, in Mélanges Michel Virally 431, 432–33 (1990). See also Rosenne, supra note 44, at 68.
57 Lockerbie, 1992 ICJ Rep. at 22, 134, and 34, 144, respectively.
58 1992 ICJ Rep. at 96, 201 (El-Kosheri, J., dissenting). See also Submission of Counsel for Libya, ICJ Verbatim Record CR 92/2, at 62–64 (1992).
59 The wording of the Charter, however, is far from consistent: Article 1(1) refers to “international disputes or situations which might lead to a breach of the peace.” Article 2(3) calls on members to “settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” Under Article 34 “the Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.”
60 Hans Kelsen, Law of the United Nations 415–16 (1950), indicates that in a sense these Charter articles are a retrogression from the Covenant, in which the League Council was empowered to recommend the 𠄌terms of settlement” of a dispute. (Article 13(4).)
61 Although, under Article 1(1), adjustment or settlement of international disputes or situations that might lead to a breach of the peace is to be brought about “in conformity with the principles of justice and international law,” and Article 2(3) obliges members to “settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” Curiously, while the former provision is addressed to all the organs of the United Nations, the Statute of the Court makes no reference to justice in enumerating the sources the Court is to apply in deciding disputes that are submitted to it. Kelsen, supra note 60, at 385.
62 Mangoldt, supra note 38, at 422.
63 UN Admission, 1948 ICJ Rep. at 85 (Basdevant, Winiarski, McNair & Read, JJ., dissenting).
64 Haya de la Torre Case (Colom./Peru), 1951 ICJ Rep. 71, 79 (June 13). See Dan Ciobanu, Litispendence between the International Court of Justice and the Political Organs of the United Nations, in 1 The Future of the International Court of Justice 209, 214 (Leo Gross ed., 1976).
65 1992 ICJ Rep. at 56, 166. See also Elihu Lauterpacht, Aspects of the Administration of International Justice 42–43 (1991).
66 Under Article 38, “the Security Council may, if all the parties to any dispute so request, make recommendations to the parties with a view to a pacific settlement of the dispute.”
67 See the Albanian response to the British Application:
There can, however, be no doubt that Article 25 of the Charter relates solely to decisions of the Security Council taken on the basis of the provisions of Chapter VII of the Charter and does not apply to recommendations made by the Council with reference to the pacific settlement of disputes, since such recommendations are not binding and consequently cannot afford an indirect basis for the compulsory jurisdiction of the Court, a jurisdiction which can only ensue from explicit declarations made by States parties to the Statute of the Court, in accordance with Article 36, 3, of the Statute.
1950 ICJ Pleadings (2 Corfu Channel) 25.
68 See statement by the UK representative during the debate before the Council, UN Doc. S/PV.3063, at 68–69 (1992). Again, as Counsel for the United Kingdom stated:
Matters of political appreciation are for the Security Council alone …. The Court Should never, when exercising its jurisdiction to indicate interim measures under Article 41 of its Statute, do so if the result would be to interfere with the Security Council in the exercise of its duties and powers under Chapter VI or VII of the Charter or even run the risk of doing so. Above all, the Court should never indicate interim measures designed to protect a State against the decisions of the Security Council.
ICJ Verbatim Record CR 92/3, at 74 (1992). The United States was also in a position to contend that Libya’s request for provisional measures was directed at restraining action in the Security Council. Submission of Counsel, id., CR 92/4, at 36. See 1992 ICJ Rep. at 11 and 122, respectively.
69 See Higgins, supra note 55, at 80.
70 Hostages, 1980 ICJ Rep. at 21–22.
71 Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter), 1962 ICJ Rep. 151, 163 (Advisory Opinion of July 20) [hereinafter Certain Expenses]. At that time, the Court found that the General Assembly was entitled to claim this residual responsibility in questions affecting international peace and security. See also Nicaragua Jurisdiction, 1984 ICJ Rep. at 434. It could also be argued, of course, that the fact that the Court is cited in the Charter as being the principal judicial organ implies that other organs may also exercise some form of judicial power. However, the United Kingdom stated in Lockerbie: “The jurisdictions of the Security Council and International Court are parallel and not mutually exclusive, but that does not mean that each possesses every competence of the other.” Submission of Counsel, ICJ Verbatim Record CR 92/3, at 72 (1992).
72 Nicaragua Jurisdiction, 1984 ICJ Rep. at 432 (emphasis added), quoted in Declaration by Judge Ni, 1992 ICJ Rep. at 21, 133. The United States had argued, inter alia, that a claim of unlawful use of armed force is a matter falling under the exclusive competence of other UN organs, in particular the Security Council. The Court rejected these arguments on the basis that the Charter “does not confer exclusive responsibility upon the Security Council” for the maintenance of international peace and security. Id. at 434. See also Dissenting Opinion of Judge Schwebel, Nicaragua Merits, 1986 ICJ Rep. at 287–93 (pointing out that nothing in the Charter or in the travaux preparatories supports the view that it was the intent of the drafters of the Charter to vest the determination of acts of aggression exclusively in the Security Council); and Schwebel, Relations between the International Court of Justice and the United Nations, supra note 56, at 438–39.
73 1992 ICJ Rep. at 20–21, 132–33. See also Dissenting Opinion of Judge Ajibola, id. at 78, 183.
74 1980 ICJ Rep. at 22.
75 Nicaragua Jurisdiction, 1984 ICJ Rep. at 433. See Rosenne, supra note 44, at 70–73.
76 Argument of Mr. Owen (U.S. Agent), 1980 ICJ Pleadings (U.S. Diplomatic and Consular Staff in Tehran) 25, 29. See also arguments of Alain Pellet, Nicaragua case, ICJ Verbatim Record CR 84/15, at 30–32 (1984).
77 Kelsen, supra note 60, at 405; Ciobanu, supra note 64, at 222, who states:
[T]he travaux preparatories of the San Francisco Conference seem to indicate that it was not the intent of the conferees to restrict the jurisdiction of the Security Council to deal with any dispute falling under its jurisdiction for the sole reason that other means and procedures for its peaceful settlement (among them the judicial settlement by the International Court of Justice) have been adopted by the parties.
See Doc. 992, III/2/27, 12 U.N.C.I.O. Docs. 105, 108–09 (1945); Theodor J. H. Elsen, Litispendence between the International Court of Justice and the Security Council 54–56 (1986). With respect to the relations of the Court with the General Assembly, the latter on certain issues (e.g., South West Africa) has overruled arguments against the adoption of substantive resolutions based on the principle of sub judice. See Rosenne, supra note 44, at 84–87.
78 See Elsen, supra note 77, at 1:
The exception of lis pendens is a plea to prevent an organ from asserting jurisdiction over an action because proceedings on the same cause of action are already pending before another forum. It is the procedural means available for the implementation of the concept of litispendence. The purpose underlying litispendence has a dual foundation. The objective usually attached to it, is the avoidance of the possibility of conflicting judgments. On the other hand, the quintessence of the exception lies in the prevention of multiplicity of simultaneously pending cases on the same issue.
As he points out, id. at 2, the exception of lis pendens, which is the procedural means by which the concept of litispendence is implemented, is a preliminary objection against admissibility of a claim, rather than against the jurisdiction of the tribunal. For the distinction between the two, see Georges Abi-Saab, Les Exceptions préliminaires dans la procédure de la Cour internationale 173 (1967): “En bref, la compétence désigne le champ d’application de l’activité de la Cour, c’est-à-dire de la juridiction, alors que la recevabilité décrit les modalités d’exercice de cette juridiction.”
79 1925 PCIJ (ser. A) No. 6, at 20 (Aug. 25). The absence of these conditions was pointed to by the Court to justify its concurrent jurisdiction with the German-Polish Mixed Arbitral Tribunal. Ciobanu, supra note 64, at 215. See Rights of Minorities in Upper Silesia (Minority Schools), 1928 PCIJ (ser. A) No. 15, at 23 (Apr. 26), in which the Court stated: “The Court’s position, in regard to jurisdiction, cannot be compared to the position of municipal courts, amongst which jurisdiction is apportioned by the State, either ratione materiae or in accordance with a hierarchical system.” See also Elsen, supra note 77, at 39–43; Rosenne, supra note 44, at 83–89.
80 See Elsen, supra note 77, at 12–14.
81 Under Article 15(1) of the Covenant, the members agreed to submit to the League Council only those disputes likely to lead to a rupture that had not been submitted to arbitration or judicial settlement. See Ciobanu, supra note 64, at 220–21; Georges Tenekides, L’exception de litispendance devant les organismes internationaux, 36 RGDIP 30 (1929).
82 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Art. 298(1)(c), UN Doc. A/CONF.62/122 (1982), reprinted in United Nations, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 (1983).
83 See 2 Paul Guggenheim, Traité de droit international public 194–95 (1954), who states with reference to litispendence between arbitral tribunals and judicial courts, on the one hand, and the Security Council, on the other: “il ne saurait du reste etre question d’une litispendance au sens technique du mot, puisque, dans la procédure arbitrate ou judiciaire, la requête a un autre contenu que la recommendation du Conseil de Securite.” See also Eckart Klein, Paralleles Tätigwerden von Sicherheitsrat und Intemationalem Gerichtshof bei friedensbedrohenden Streitigkeiten, in Völkerrecht als Rechtsordnung—internationale Gerichtsbarkeit—Menschenrechte: Festschrift für Hermann Mosler 467, 474 (Rudolf Bernhardt, Wilhelm Karl Geek, Giinther Jaenicke & Helmut Steinberger eds., 1983); Ciobanu, supra note 64, at 216.
84 Rosenne, supra note 44, at 87.
85 As Judge Bedjaoui points out with reference to the Anglo-Iranian Oil Co. case, 1992 ICJ Rep. at 44, 154. The representative of India had then observed: “It may not therefore be wise or proper for us to pronounce on this question while substantially the same question is sub judice before the International Court of Justice.” UN SCOR, 6th Sess., 561st mtg., para. 17, UN Doc. S/PV.561 (1951). A French proposal to adjourn the Council debate on the issue until the Court ruled on its own jurisdiction had then been adopted. Id., 565th mtg., paras. 2–3, UN Doc. S/PV.565 (1951). See, however, the opinion of Judge Alvarez, considering that, if the case constituted a threat to world peace, the Security Council could seize itself of the case, thereby putting an end to the Court’s jurisdiction. Anglo-Iranian Oil Co. (UK v. Iran), Jurisdiction, 1952 ICJ Rep. 93, 134 (July 22) (Alvarez, J., dissenting).
86 1992 ICJ Rep. at 34, 144. See also Dissenting Opinion of Judge Ajibola, stating:
[T]he Montreal Convention on which Libya’s Application is based squarely presents the Court with issues of “rights” and “disputes” under international law, involving, in particular, extradition, while the Security Council is dealing with the issue of the “surrender” of two suspects and the problem of international terrorism as it affects international peace and the security of nations—i.e., matters of a political nature.
1992 ICJ Rep. at 79, 184. And see Dissenting Opinion of Judge El-Kosheri, 1992 ICJ Rep. at 96, 201.
87 1992 ICJ Rep. at 44, 154. See also 1992 ICJ Rep. at 27, 139 (Lachs, J., sep. op.).
88 Vera Gowlland-Debbas, Security Council Enforcement Action and Issues of State Responsibility, 43 Int’l & Comp. L.Q. 55 (1994) [hereinafter SC Enforcement Action]. See also by the same author, Collective Responses to Illegal Acts in International Law. United Nations Action in the Question of Southern Rhodesia (1990) [hereinafter Collective Responses], The term “state responsibility” is used in the sense given to it by the draft articles on state responsibility, i.e., as all the legal consequences flowing from the internationally wrongful act of a state, whether limited to the relations between the violating state and the directly injured state or extending also to other subjects of international law, and whether they are centered on the duty of the guilty state to make reparation or entail a right of the injured state or other states to impose a legal sanction. Report of the International Law Commission on the work of its twenty-fifth session,  2 Y.B. Int’l L. Comm’n 161, 175, UN Doc. A/CN.4/SER.A/1973/Add.1.
89 Violation of the right to self-determination, systematic and massive violations of human rights, invasion and occupation of a member state, grave breaches of humanitarian law, “ethnic cleansing” … For examples of these resolutions, see Gowlland-Debbas, SC Enforcement Action, supra note 88, at 63–68.
90 Id. at 74–90.
91 The preamble to Resolution 748, supra note 14, states:
Reaffirming that, in accordance with the principle in Article 2, paragraph 4, of the Charter of the United Nations, every State has the duty to refrain from organizing, instigating, assisting or participating in terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when such acts involve a threat or use of force,
Determining, in this context, that the failure by the Libyan Government to demonstrate by concrete actions its renunciation of terrorism and in particular its continued failure to respond fully and effectively to the requests in resolution 731 (1992) constitute a threat to international peace and security ….
Several statements during the debates linked acts of terrorism with threats to the peace. See UN Docs. S/PV. 3033, at 81 (France), 47 (Canada), 80 (U.S.); and S/PV. 3063, at 66 (U.S.), 72 (UK) (1992). But see UN Doc. S/PV.3033, at 23–25, 32–35 (protests by Libya and Sudan, respectively).
92 For document references, see note 6 supra. By simply referring to the relevant documents, the Council avoided using the term “surrender,” which is not a term of art in international law and is not to be confused with extradition. Note that the Council dealt with state responsibility, leaving the implications of individual criminal responsibility to the U.S. and UK Governments to handle. By invoking state terrorism, the Council can thus assert the irrelevance, for its own purposes, of the Montreal Convention. See Weller, supra note 5, at 318.
93 For Article 103, which refers to the obligations of member states under other international agreements, is not concerned either with the rights of the targeted state under such agreements or with its sovereign rights under general international law. In this connection, see Joint Declaration of Judges Evensen, Tarassov, Guillaume and Aguilar Mawdsley, Lockerbie, 1992 ICJ Rep. at 24–25, 136–37.
94 In its observations to the Court on Security Council Resolution 748, Libya contended: “by deciding, in effect, that Libya must surrender its nationals to the United States and the United Kingdom, the Security Council infringes, or threatens to infringe, the enjoyment and the exercise of the rights conferred on Libya by the Montreal Convention and its economic, commercial and diplomatic rights.” 1992 ICJ Rep. at 125. See also id. at 14.
95 UN Doc. S/PV.3033, at 104 (1992).
96 Sanctions are a means of collective enforcement, defined in the International Law Commission’s commentaries as
reactive measures applied by virtue of a decision taken by an international organization following a breach of an international obligation having serious consequences for the international community as a whole, and in particular … certain measures which the United Nations is empowered to adopt, under the system established by the Charter, with a view to the maintenance of international peace and security.
 2 Y.B. Int’l L. Comm’n, pt. 2, at 121, UN Doc. A/CN.4/SER.A/1979/Add.1 (pt.2); and Gaetano Arangio-Ruiz, Third Report on State Responsibility, UN Doc. A/CN.4/440, at 7 (1991).
97 See Henri Donnedieu de Vabres, L’action publique et l’action civile dans les rapports de droit pénal international, 26 Recueil des Cours [R.C.A.D.I.] 207, 261 (1929 I):
La litispendance, qu’on a souvent étudiée en droit interne, se présente quand deux tribunaux (civils et criminels) sont saisis de la même affaire; quand les demandes simultanément portées devant eux, ont le même objet, la même cause, et se déroulent entre les mêmes parties.
La connexité ne suppose pas l’identité des affaires. Mais elle implique entre elles un rapport assez étroit pour qu’une contradiction de jugements soit à craindre, si elles se poursuivent séparément. (footnotes omitted)
98 Judicial settlement procedures in relation to the adoption of unilateral countermeasures by states may be invoked in lieu of such measures or as a means of preempting them (Libya’s intention in the Lockerbie case), in parallel (Hostages case), or after the event in order to assess the legality of measures taken (Corfu Channel). See Gaetano Arangio-Ruiz, Fifth Report on State Responsibility, UN Doc. A/CN:4/453 and Add.1 (1993).
99 1992 ICJ Rep. at 26 (Lachs, J., sep. op.).
100 1992 ICJ Rep. at 32, 142.
101 At San Francisco it was deliberately left to the Security Council to decide this on a case-by-case basis. See Doc. 881, III/3/46, 12 U.N.C.I.O. Docs. 502, 505 (1945). This discretion has not been affected by the General Assembly’s adoption of a Definition of Aggression, GA Res. 3314, UN GAOR, 29th Sess., Supp. No. 31, at 142, UN Doc. A/9631 (1974).
102 So that in theory the Organization, as a subject of international law, not only could commit acts that would be unlawful under its constituent instrument, e.g., assertion of competence by the wrong organ, but also, under international law, could commit the same kinds of illegal acts as states. See Elihu Lauterpacht, The Legal Effect of Illegal Acts of International Organisations, in Cambridge Essays in International Law. Essays in Honour of Lord McNair 88, 89 (1965).
103 For discussion and references regarding the discretionary quality of a preliminary finding under Article 39 of the Charter, and the limits thereto, see Gowlland-Debbas, Collective Responses, supra note 88, at 444–56. See also La Charte des Nations Unies 462–65 (Jean-Pierre Cot & Alain Pellet eds., 2d ed. 1991); Mohammed Bedjaoui, Du contrôle de légalité des actes du Conseil de Sécurité, in Nouveaux Itinéraires en droit. Hommage à François Rigaux 69 (1993); Benedetto Conforti, Le Pouvoir discrétionnaire du Conseil de Sécurité en matière de constatation d’une menace contre la paix, d’une rupture de la paix ou d’un acte d’agression, in The Development of the Role of the Security Council 51 (René-Jean Dupuy ed., 1993) [hereinafter Role of Security Council]; Michael Bothe, Les Limites des pouvoirs du Conseil de Sécurité, in id. at 67; Thomas M. Franck, The Security Council and “Threats to the Peace”: Some Remarks on Remarkable Recent Developments, in id. at 83. Also, in a discussion of the travaux preparatoires, 1992 ICJ Rep. at 60–65, 170–75, Judge Weeramantry concludes:
The history of the United Nations Charter thus corroborates the view that a clear limitation on the plenitude of the Security Council’s powers is that those powers must be exercised in accordance with the well-established principles of international law. It is true this limitation must be restrictively interpreted and is confined only to the principles and objects which appear in Chapter I of the Charter.
Id. at 65, 175 (Weeramantry, J., dissenting).
104 In particular, paragraph 3 relating to the requirement of unanimity of the permanent members. However, with respect to Resolution 731, as Libya contended, the final part of paragraph 3 would be more relevant; it provides that, in decisions under chapter VI, a party to a dispute shall abstain from voting. Smun Doc. S/PV.3033, at 23–25 (1992) (Libya); 1992 ICJ Rep. at 99–100, 204–05 (El-Kosheri, J., dissenting).
105 Another way of approaching the question of Security Council findings under Article 39 is to consider that the Council has “non pas un pouvoir discrétionnaire, mais une marge d’appreciation,” a term used, for example, by the European Court of Human Rights, in which case “il est implicite dans le concept même de marge d’appréciation qu’il ne s’agit pas d’un pouvoir illimité.” Bothe, supra note 103, at 70. Conforti, supra note 103, at 56–57, also believes that “un comportement d’un Etat ne peut pas être condamné par le Conseil, et par conséquent ne peut être soumis aux mesures du chapitre VII, … si le comportement … n’est pas considéré comme une véritable menace contre la paix par la communauté internationale dans son ensemble.”
106 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council resolution 276 (1970), 1971 ICJ Rep. 16, 293–94, 340 (Advisory Opinion of June 21) (Fitzmaurice & Gros, JJ., dissenting, respectively) [hereinafter Namibia]. See also UN Admission, 1948 ICJ Rep. at 91–92 (Basdevant, Winiarski, McNair & Read, JJ., dissenting) (with respect to the use of the veto to prevent the admission of new members to the United Nations); and 1 Fitzmaurice, supra note 47, at 13–14.
107 Corfu Channel case (UK v. Alb.) (Merits), 1949 ICJ Rep. 4, 48 (Apr. 9) (Alvarez, J., ind. op.).
108 1992 ICJ Rep. at 14, 126.
109 Id. at 43, 153 (Bedjaoui, J., dissenting). See also id. at 46 n.1, 156 n.1.
110 Bedjaoui, supra note 103, at 93.
111 Doc. 664, IV/2/33, 13 U.N.C.I.O. Docs. 633 (1945). Another Belgian amendment would have allowed a state to seek an advisory opinion from the Court if it believed that a Security Council recommendation regarding the peaceful settlement of a dispute infringed on its essential rights. Doc. 2, G/7(k)(1), 3 id. at 335–36. See Geoffrey R. Watson, Constitutionalism, Judicial Review, and the World Court, 34 Harv. Int’l L.J. 1, 8–14 (1993).
112 Doc. 933, IV/2/42, 13 U.N.C.I.O. Docs. 710 (1945). See also Certain Expenses, 1962 ICJ Rep. at 168 (“Each organ must, in the first place at least, determine its own jurisdiction”). But see id. at 203 (Fitzmaurice, J., ind. op.).
113 Certain Expenses, 1962 ICJ Rep. at 168 (emphasis added).
114 Watson, supra note 111, at 13. See also Leo Gross, The International Court of Justice and the United Nations, 120 R.C.A.D.I. 313, 327 (1967 I).
115 Doc. 933, IV/2/42, supra note 112, at 709–10.
116 For the view that the Court has the potential for judicial review, see references in note 103 supra: Bothe at 80; Conforti at 60; Franck at 110. See also Thomas M. Franck, Remarks, UN Checks and Balances: The Role of the ICJ and the Security Council, in American Society of International Law/Nederlandse Vereniging voor Internationaal Recht, Contemporary International Law Issues: Opportunities at a Time of Momentous Change 280–83 (René J. M. Lefeber ed., 1994) [hereinafter Contemporary Issues]; and W. Michael Reisman, The Development of the Role of the Security Council, in Role of Security Council, supra note 103, at 399, 412–13, though the latter has reservations with respect to any review that might limit the Security Council in its peace and security functions. For a contrary opinion, see Terry Gill, Remarks, in Contemporary Issues, supra, at 283, 284: “The ICJ is not a constitutional court of the UN system. It has no power of judicial review of the decisions or actions of either the Security Council or of any other organ or agency of the UN system.”
117 The Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331, does not distinguish between the constituent instruments of international organizations and ordinary treaties. Article 31(1) states: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” In Certain Expenses, 1962 ICJ Rep. at 157, the Court referred to the UN Charter as a multilateral treaty, but one that has certain special characteristics. See also De Visscher, Dissenting Opinion, International Status of South-West Africa, 1950 ICJ Rep. 128, 189 (Advisory Opinion of July 11). For a full discussion of the process and techniques of interpretation of the constitutions of international organizations by the PCIJ and ICJ, see Elihu Lauterpacht, The Development of the Law of International Organization by the Decisions of International Tribunals, 152 R.C.A.D.I. 377, 414–65 (1976 IV).
118 Reparation for injuries suffered in the service of the United Nations, 1949 ICJ Rep. 174 (Advisory Opinion of Apr. 11); Certain Expenses, supra note 71; Namibia, supra note 106; Western Sahara, 1975 ICJ Rep. 12 (Advisory Opinion of Oct. 16); respectively.
119 Certain Expenses, 1962 ICJ Rep. at 168. See also Reparation case, supra note 118, 1949 ICJ Rep. at 182. Bothe, supra note 103, at 74–75, points out, however, that such implied powers should not be derived from the general purposes of the Charter, but should only be those which are necessary to the effective accomplishment of the explicitly stated powers.
120 1971 ICJ Rep. at 31.
121 Aegean Sea Continental Shelf, supra note 50, 1978 ICJ Rep. at 32–34, where the Court considered that the expression “the territorial status of Greece,” used in Greece’s reservations annexed to its Instrument of Accession to the 1928 General Act for the Pacific Settlement of International Disputes, was “a generic term denoting any matters comprised within the concept of territorial status under general international law,” and hence that “its meaning was intended to follow the evolution of the law and to correspond with the meaning attached to the expression by the law in force at any given time.” This presumption
is even more compelling when it is recalled that the 1928 Act was a convention for the pacific settlement of disputes designed to be of the most general kind and of continuing duration, for it hardly seems conceivable that in such a convention terms like “domestic jurisdiction” and “territorial status” were intended to have a fixed content regardless of the subsequent evolution of international law.
The Court concluded that “the expression … ‘disputes relating to the territorial status of Greece’ must be interpreted in accordance with the rules of international law as they exist today, and not as they existed in 1931.” This is somewhat reminiscent of the oft-quoted Nationality Decrees Issued in Tunis and Morocco opinion, 1923 PCIJ (ser. B) No. 4, at 24 (Advisory Opinion of Feb. 7), in which the Court had recognized the essentially fluid nature of the meaning of domestic jurisdiction as depending on the development of international relations. On the invocation of intertemporal law in treaty interpretation, see also the International Law Commission’s commentary to the draft Convention on the Law of Treaties,  2 Y.B. Int’l L. Comm’n 199, UN Doc. A/CN.4/SER.A/1964/Add.1. See Elias, supra note 50, at 136–38.
122 See, e.g., Judge Huber’s famous dictum: “A juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled.” Island of Palmas arbitration, 2 R.I.A.A. 829, 845 (1929).
123 For the application of this principle in the jurisprudence of the European Commission and Court of Human Rights, see Humphrey Waldock, The Evolution of Human Rights Concepts and the Application of the European Convention on Human Rights, in Mélanges offerts à Paul Reuter. Le droit international: unité et diversité 535 (1986) (citing the Tyrer, Marckx and Airey cases). Sir Humphrey emphasizes that what is involved is “a reinterpretation—an evolution—of an already existing obligation, not the incrustation, or impact, upon the Convention of a new obligation that had arisen through the emergence of a new rule of customary or treaty law.” This should therefore be distinguished from the subsequent practice of the Organization, which the Court took into consideration, e.g., in the Namibia opinion with respect to the effect of an abstention by a permanent member of the Security Council. 1971 ICJ Rep. at 22.
124 See Bedjaoui, supra note 103, at 73–74 (pointing out that, to overcome the concerns of the smaller powers regarding the extraordinary powers of the Security Council, the U.S. delegation in San Francisco gave assurances that the Charter would be revised no later than 10 years after its adoption).
125 See Competence of Assembly regarding admission to the United Nations, supra note 51, 1950 ICJ Rep. at 23, cited in 1 Fitzmaurice, supra note 47, at 54.
126 Certain Expenses, 1962 ICJ Rep. at 186 (citation omitted), cited in Lauterpacht, supra note 117, at 439. According to Judge Spender, moreover, the intention of the parties is less important in the case of the Charter than in other treaties where the parties are fixed and constant. 1962 ICJ Rep. at 185.
127 See Terumi Furukawa, Le Double Rôle de la Cour intemationale de Justice à l’égard des organisations internationales: protection et contrôle, in Mélanges offerts à Paul Reuter, supra note 123, at 393.
128 On one occasion, this approach did lead the Court to the conclusion that the particular power claimed by an organization (competence of the ILO to examine proposals for the organization and development of methods of agricultural production) was in fact restricted by the objects of that Organization (which the Court read as being restricted to the improvement of conditions of labor). Competence of the International Labor Organization with respect to Agricultural Production, 1922 PCIJ (ser. B) No. 3, at 55–57 (Advisory Opinion of Aug. 12). See Lauterpacht, supra note 117, at 422.
129 I have argued elsewhere that, in the light of the ongoing debate over the limits to be placed on unilateral countermeasures (see, e.g., Gaetano Arangio-Ruiz, Third and Fourth Reports on State Responsibility, UN Docs. A/CN.4/440/Add.1 (1991) and A/CN.4/444/Add.1 (1992), and the debate in the Sixth Committee, UN Docs. A/C.6/47/SR.20-25 (1992)), serious thought should now be given to the limits to be set on collective sanctions. In the absence of such limits, states, and in particular the permanent members, may find it easy to escape the conditions placed on unilateral countermeasures by current (as well as evolving) general international law by hiding behind the corporate veil. Gowlland-Debbas, SC Enforcement Action, supra note 88, at 91–93.
130 1971 ICJ Rep. at 55, 56.
131 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, supra note 4, 1993 ICJ Rep. 325.
132 See, however, Dissenting Opinion of Judge Weeramantry, Lockerbie, 1992 ICJ Rep. at 53–54, 163 (citing Professor Suy, Counsel for Libya, ICJ Verbatim Record CR 92/2, at 62 (1992): “[T]he right of Libya to exercise its criminal jurisdiction over its own subjects is a fundamental right derived from the sovereignty of the State, a right which cannot be derogated from.”).
133 1993 ICJ Rep. at 440 (Lauterpacht, J., sep. op.).
134 See, e.g., Dissenting Opinion of Judge Moreno Quintana in Certain Expenses, 1962 ICJ Rep. at 251:
Such a process of adaptation of the original provisions of the Charter to the new circumstances of international life is in any case beyond the Court’s scope of interpretation of the Charter. It would assume the exercise by that organ, by indirect means, of an activity de lege ferenda which is assigned to it neither by the Charter nor by its Statute.
See also 3 Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals 137 (1976) (observing, in response to Judge Azevedo’s dissenting opinion, supra note 125, that “[t]he direction of the ‘natural evolution of the needs of mankind’ and the character of mankind’s needs may be hard to determine”).
135 Lauterpacht, supra note 36, at 80, quoted in Higgins, supra note 55, at 69–70. Higgins finds that this approach urges that “attention be paid to the entirety of relationships in the community,” and she rejects the doctrine “that decisions made on the narrowest possible basis, avoiding reference to the complex of relationships in the world community, are ‘legal,’ whereas a more flexible approach is ‘political,’ and therefore an option not open to the Court.” Id. at 70. See also Rosenne, supra note 44, at 91; and Hersch Lauterpacht, The Development of International Law by the International Court 394–95 (1958).
136 In this vein, see Nagendra Singh, The Role and Record of the International Court of Justice 43 (1989).
137 United States v. Palestine Liberation Org., 695 F.Supp. 1456, 1468–71 (S.O.N.Y. 1988), reprinted in 27 ILM 1055, 1079–86 (1988).
138 Namibia, 1971 ICJ Rep. at 45.
139 See Hubert Thierry, Les Resolutions des organes internationaux dans la jurisprudence de la Cour internationale de Justice, 167 R.C.A.D.I. 391, 415–19 (1980 II). The distinction is a fine one, for as Judge Weeramantry states: “It is not for this Court to sit in review on a given resolution of the Security Council but it is within the competence of the Court and indeed its very function to determine any matters properly brought before it in accordance with international law.” Lockerbie, 1992 ICJ Rep. at 65–66, 176 (Weeramantry, J., dissenting).
140 Certain Expenses, 1962 ICJ Rep. at 157, 168. Lauterpacht, supra note 102, at 107.
141 See Namibia, 1971 ICJ Rep. at 143–44, 331–32 (Onyeama, J., sep. op., & Gros, J., dissenting).
142 1992 ICJ Rep. at 15, 127.
143 See, e.g., Dissenting Opinions of Judges Bedjaoui, 1992 ICJ Rep. at 46, 156, and Ajibola, 1992 ICJ Rep. at 92, 196. More nuanced are the approaches of Judge Weeramantry in his Dissenting Opinion, 1992 ICJ Rep. at 66, 176: “any matter which is the subject of a valid Security Council decision under Chapter VII does not appear, prima facie, to be one with which the Court can properly deal”; and Judge Oda in his Declaration, 1992 ICJ Rep. at 17, 129: “a decision of the Security Council, properly taken in the exercise of its competence, cannot be summarily reopened.”
144 See, e.g., Separate Opinion of Judge Shahabuddeen, 1992 ICJ Rep. at 28, 140.
145 Dissenting Opinion of Judge El-Kosheri, 1992 ICJ Rep. at 105, 206–10. He argued that the resolutions had no basis in the Charter and were ultra vires because they were contrary to Libya’s sovereign rights under Articles 1(2) and 55 (“equal rights and self-determination of peoples”) and 2(7) (principle of domestic jurisdiction) of the Charter.
146 Namibia, 1971 ICJ Rep. at 45, 53.
147 Lauterpacht, supra note 102, at 88, demonstrates that there is no fully developed or general theory determining the legal consequences of such acts.
148 The General Assembly has authorized some subsidiary organs and the majority of the UN specialized agencies to request advisory opinions of the Court; of the principal organs, only the Secretariat has not been so authorized. See Stephen M. Schwebel, Authorizing the Secretary-General of the United Nations to Request Advisory Opinions of the International Court of Justice, 78 AJIL 869 (1984). Presumably, the very broad scope of the activities of the Secretary-General (e.g., under Articles 98 and 99), which extends to practically all the activities of the principal organs, has led to a reluctance on the part of the member states to entrust him with this power.
149 Even the General Assembly cannot ask for an advisory opinion beyond the scope of its activities, i.e., jurisdiction, even though this is not explicitly stated in Article 96(1). Thus, it may not question a Security Council interpretation of Charter provisions governing the functioning of the Security Council, though it could request an advisory opinion on a matter involving the functioning of that organ. See Kelsen, supra note 60, at 546; Singh, supra note 136, at 40.
150 See Nico Schriver, Remarks, in Contemporary Issues, supra note 116, at 288–89. The question put to the Court, however, bore on the legal consequences of South Africa’s continued presence in Namibia following the Security Council’s Resolution 276.
151 Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, 1960 ICJ Rep. 150, 171 (June 8).
152 Effect of awards of compensation made by the U.N. Administrative Tribunal, 1954 ICJ Rep. 47, 58 (Advisory Opinion of July 13). See Lauterpacht, supra note 117, at 429.
153 See Certain Expenses, 1962 ICJ Rep. at 168. For certain exceptional treaty provisions that characterize the opinion requested of the Court as a “decision,” see Roberto Ago, “Binding𠄝 Advisory Opinions of the International Court of Justice, 85 AJIL 439 (1991).
154 Singh, supra note 136, at 34, notes that the essential distinction between advisory opinions and judgments in contentious cases is not their respective “non-binding” or “binding” nature, for the significance of this is not always clear, but rather that the advisory opinion does not order a state or organ to do anything. The Assembly of IMCO, for instance, accepted the Court’s opinion as an authoritative statement establishing the illegality of the election held on January 15, 1959. See Lauterpacht, supra note 102, at 104.
155 See Watson, supra note 111, at 41–43.
156 See position of the United States, close to that of the British, in 1962 ICJ Pleadings (Certain Expenses) 416, quoted in Lauterpacht, supra note 102, at 108. The view that procedural irregularities, if not prejudicing “in any fundamental way the requirements of a just procedure,” do not result in invalidating the act in question was expressed by the Court in, e.g., Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pak.), 1972 ICJ Rep. 46, 69–70 (Aug. 18); and Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, 1973 ICJ Rep. 166, 213 (Advisory Opinion of July 12).
157 See Certain Expenses, 1962 ICJ Rep. at 168. On ultra vires, see Ebere Osieke, The Legal Validity of Ultra Vires Decisions of International Organizations, 77 AJIL 239 (1983).
158 Lauterpacht, supra note 102, at 109. For a critique of this distinction, see also Bedjaoui, supra note 103, at 91–92.
159 Lauterpacht, supra note 102, at 88.
160 Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, supra note 151, 1960 ICJ Rep. at 171.
161 See Osieke, supra note 157, at 244. The Soviet representative, however, pointed to the contradiction in first saying that a committee had been established in an irregular manner and hence had no legal existence, and then adopting and approving the decisions taken by that nonexistent body. IMCO Doc. A.II/SR.4, at 8 (1960); Lauterpacht, supra note 102, at 104.
162 Lauterpacht, supra note 102, at 105.
163 Id. at 113.
164 Thomas M. Franck, Remarks, in Contemporary Issues, supra note 116, at 283.
165 See David Caron, The Legitimacy of the Collective Authority of the Security Council, 87 AJIL 552, 577–84 (1993).
166 See Separate Opinion of Judge Lauterpacht, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, 1993 ICJ Rep. at 441.
167 1992 ICJ Rep. at 66, 176.
168 ICJ Verbatim Record CR 92/3, at 74 (1992).
169 Higgins, supra note 55, at 80.
170 Nicaragua Merits, 1986 ICJ Rep. at 237.
171 Northern Cameroons, supra note 35, 1963 ICJ Rep. at 29. It had prefaced this remark with the following statement:
It is the act of the Applicant which seises the Court but even if the Court, when seised, finds that it has jurisdiction, the Court is not compelled in every case to exercise that jurisdiction. There are inherent limitations on the exercise of the judicial function which the Court, as a court of justice, can never ignore.
172 The Court concluded in the Northern Cameroons case that, since the object of the claim, i.e., the administrative union as established during the trusteeship, no longer existed, there was nothing on which to give judgment. It therefore refused to perform what it called an academic function, since, unlike the case of a declaratory judgment, no effects could flow from it. It stated: “The Court’s judgement must have some practical consequence in the sense that it can affect existing legal rights or obligations of the parties, thus removing uncertainty from their legal relations.” 1963 ICJ Rep. at 37. In Status of Eastern Carelia, 1923 PCIJ (ser. B) No. 5, at 28 (July 23), and Case of the monetary gold removed from Rome in 1943 (It. v. Fr., UK, U.S.), Preliminary Question, 1951 Rep. 19, 79 (June 15), it declined to adjudicate on the basis of the operation of the principle audiatur et altera pars as an obstacle to the exercise of jurisdiction.
173 1971 ICJ Rep. at 143.
174 Rosenne, supra note 44, at 75.
175 Id. at 4.
176 As several authorities have pointed out, advances in the judicial sector have not paralleled advances in other sectors of international organization. Id. at 427; Pellet, supra note 52, at 543.
177 Barcelona Traction, Light & Power Co. (Belg. v. Spain), Second Phase, 1970 ICJ Rep. 3, 32 (Feb. 5). In a multilateral context, the Court in Reservations to the Convention on Genocide, 1951 ICJ Rep. 15 (Advisory Opinion of May 28), recognized the common interests of the parties in preserving the purposes and principles of the Convention. While the International Court, in the Nicaragua case, referred to the concept of jus cogens only as an aside, Nicaragua Merits, 1986 ICJ Rep. at 100–01, it spoke, in the Hostages case, of the rules of diplomatic and consular relations as “imperative obligations” or norms of “cardinal importance,” and referred to Security Council Resolution 457 (Dec. 4, 1979) “as evidencing the importance attached by the international community as a whole to the observance of those principles.” Hostages, Provisional Measures, 1979 ICJ Rep. 7, 20 (Order of Dec. 15), and Merits, 1980 ICJ Rep. at 19, 42.
178 Christine M. Chinkin, Third-Party Intervention before the International Court of Justice, 80 AJIL 495, 503 (1986). See also Charles De Visscher, Aspects récents du droit procédural de la Cour Internationale de Justice 70–74 (1966). See also Singh, supra note 136, at 29.
179 In Nicaragua Provisional Measures, 1984 ICJ Rep. at 195–96, Judge Schwebel, in a dissenting opinion, stated:
[T]he rights of the United States which are central to this case are the rights of all States which are central to modern international law and life: those that spring from “the most fundamental and universally accepted principles of international law” invoked by Nicaragua in its Application. These fundamental rights of a State to live in peace, free of the threat or use of force against its territorial integrity or political independence, are rights of every State, erga omnes. They do not depend upon narrow considerations of privity to a dispute before the Court.
The Court, however, refused to take such a broad view, restricting its examination of the U.S. action against Nicaragua to the framework of the collective self-defense doctrine.
180 Article 62 of the ICJ Statute states: “1. Should a State consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene. 2. It shall be for the Court to decide upon this request.” Article 62 is different in nature from Article 63, in which states parties to a convention whose construction is in issue before the Court may intervene as of right.
181 Continental Shelf (Tunis./Libya), Application to Intervene, 1981 ICJ Rep. 3, 19–20 (Apr. 14). See also Italy’s application for permission to intervene in Continental Shelf (Libya/Malta), Application to Intervene, 1984 ICJ Rep. 3 (Mar. 21); and El Salvador’s application in Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Declaration of Intervention, 1984 ICJ Rep. 215 (Order of Oct. 4). However, the Court for the first time admitted intervention by Nicaragua on the basis of Article 62 of the Statute in Land, Island and Maritime Frontier Dispute (El Sal./Hond.), Application to Intervene, 1990 ICJ Rep. 92 (Sept. 13). See also Elias, supra note 50, at 96–99; Georges Abi-Saab, La Quête de la justice permanente, 96 RGDIP 274, 289–90 (1992).
182 Northern Cameroons, supra note 35, 1963 ICJ Rep. at 37. However, as Arangio-Ruiz, supra note 98, UN Doc. A/CN.4/453/Add.3, at 16, notes in a discussion of the respective competences of the Security Council and the ICJ in the determination of the existence, attribution and consequences of an international crime,
the implementation of any State’s liability pronounced by the Court would escape any control, so to speak, of the Court itself. Any “sanction” other than the mere finding of the breach and its attribution should have thus to be determined and applied either by the injured party or parties or to be left to the discretional action of other United Nations bodies.
183 See Edward McWhinney, Judicial Settlement of International Disputes. Jurisdiction, Justiciability and Judicial Law-Making on the Contemporary International Court 39–42 (1991) (pointing out that unlike national constitutional law models in which there is competition between institutions, the Court-Council model here comprehends a new notion of complementarity); Higgins, supra note 55, at 83. See also Arangio-Ruiz, supra note 98, at 38:
[W]hen political bodies are not paralyzed for lack of the required majority, they are likely to be influenced more than is desirable by power politics; and having to respond to any situations, they may be led to stretch their action beyond the scope of the mandate entrusted to them. The strengthening of third party settlement procedures in the area of State responsibility would relieve political organs of that part of the burden which is more suitable for judicial treatment.
184 Elsen, supra note 77, at 46.
185 Thomas M. Franck, Fairness in the International Legal and Institutional System, 240 R.C.A.D.I. 220–21 (1993 III):
In extreme cases, the Court may have to be the last-resort defender of the system’s legitimacy if the United Nations is to continue to enjoy the adherence of its Members. This seems to be tacitly acknowledged judicial common ground, and is an elementary prerequisite of fairness in the Council’s exercise of its newly ebullient powers.
As the United Nations system increasingly comes to operate as it was intended, the rule of law imposed on the political process by the Charter will assume increasing importance. The Libyan case may not be an instance of unchecked political power, but it raises that complaint and directs the complaint to the Court, the one institution in the system able to legitimize the growing—and welcome—growth of political activism by United Nations organs and of the Security Council in particular.
On the way in which a perception of illegitimacy might be said to affect the effectiveness of an institution, see Caron, supra note 165, at 558 n.24.
186 Bedjaoui, supra note 103, at 107–08.