Should the International Court of Justice (ICJ) “judicially review” Security Council decisions? The question, once fanciful, is now being asked seriously by litigants in and judges on the World Court, nonpermanent members of the Security Council that consider it an “undemocratic” body acting as “a cloak for a new form of imperialism,” and scholars worried about its recent “quasi-legislative” or “quasi-judicial” acts. The recent throng of commentators and advocates includes students of realpolitik warning the Court against any unrealistic attempt to transform the United Nations collective security scheme into a constitutional structure of checks and balances, and legalists grasping hopefully for hints of Marbury v. Madison in recent World Court pronouncements.
This article is based on a presentation given at the American Society of International Law’s Annual Meeting on April 5, 1995. The author thanks Susan Damplo, Gerry J. Simpson, Anne-Marie Slaughter, Eric Stein, Howard Meyer, Richard Pildes, Phillip Trimble, Edward Martin Wise, and anonymous reviewers from the Journal’s Board of Editors for their helpful suggestions.
1 Alleging jurisdiction under the Montreal Convention for die Suppression of Unlawful Acts against the Safety of Civil Aviation, Libya sought interim measures against the United States and the United Kingdom, a request that ultimately would require that the Court consider the legality of Security Council Resolution 748, which imposed economic sanctions to compel Libya to comply with U.S. and UK requests to surrender Libyan nationals accused of the Lockerbie bombing. 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]. (The Orders are nearly identical.) For its part, Bosnia filed multiple claims against Serbia, principally under the Genocide Convention, which initially included a request for a determination that Security Council decisions imposing an arms embargo be construed as not impairing Bosnia’s rights of individual or collective self-defense. Neither Libya nor Bosnia was successful in attaining these requests through the provisional measures stages of these cases. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugo. (Serbia and Montenegro)), Provisional Measures, 1993 ICJ Rep. 3 (Order of Apr. 8) [hereinafter Order of Apr. 8], reprinted in 32 ILM 890 (1993); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugo. (Serbia and Montenegro)), Provisional Measures, 1993 ICJ Rep. 325 (Order of Sept. 13) [hereinafter Order of Sept. 13]. For one view of the scope of Bosnia’s claims before the Court, see Craig Scott, Francis Chang, Abid Qureshi, Paul Michell, Jasminka Kalajdzic & Peter Copeland, A Memorial for Bosnia: Framework of Legal Arguments Concerning the Lawfulness of the Maintenance of the United Nations Security Council’s Arms Embargo on Bosnia and Herzegovina, 16 Mich. J. Int’l L. 1 (1994) [hereinafter Scott] (although cast as a pleading before the Court and initiated by a Bosnian government request, this document was not filed before the Court). Bosnia’s actual pleadings on the merits, not yet public, apparendy no longer challenge Security Council action. Conversation with Thomas Franck, counsel for Bosnia (Apr. 5, 1995).
In proceedings before the war crimes Tribunal for the former Yugoslavia, the first defendant has also raised defenses premised on the illegality of the Council’s actions in establishing the Tribunal. See text at and notes 59-62 infra.
2 Adam Roberts & Benedict Kingsbury, Presiding over a Divided World: Changing Un Roles, 1945–1993, at 57 (International Peace Academy, Occasional Paper Series, 1994). Developing states’ distrust of the post-Cold War Security Council has been especially evident in recent discussions in the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization. See, e.g., recent annual reports of that committee, UN Docs. A/48/33 (1993) and A/49/33 (1994).
3 See, e.g., Keith Harper, Does the United Nations Security Council Have the Competence to Act as Court and Legislature?, 27 N.Y.U. J. Int’l L. & Pol. 103 (1994); Vera Gowlland-Debbas, Security Council Enforcement Action and Issues of State Responsibility, 43 Int’l & Comp. L.Q. 55 (1994); Frederic L. Kirgis, Jr., The Security Council’s First Fifty Years, 89 AJIL 506 (1995).
4 See, e.g., Scott I. Bortz, Avoiding a Collision of Competence: The Relationship Between the Security Council and the International Court of Justice in Light of Libya v. United States, 2 Fla. St. U. J. Int’l L. & Pol. 353 (1993); Thomas M. Franck, The “Powers of Appreciation”: Who Is the Ultimate Guardian of UN Legality?, 86 AJIL 519 (1992); W. Michael Reisman, The Constitutional Crisis in the United Nations, 87 AJIL 83 (1993) [hereinafter Crisis], also in Development of the Role of the Security Council, Colloque, July 21–23, 1992, at 399 (René-Jean Dupuy ed., 1993) [hereinafter Colloque]; Matthias J. Herdegen, The “Constitutionalization” of the UN Security System, 27 Vand. J. Transnat’l L. 135 (1994); Robert F. Kennedy, Libya v. United States: The International Court of Justice and the Power of Judicial Review, 33 Va. J. Int’l L. 899 (1993); Scott S. Evans, The Lockerbie Incident Cases: Libyan-Sponsored Terrorism, Judicial Review, and the Political Question Doctrine, 18 Md. J. Int’l L. & Trade 21 (1994); Mohammed Bedjaoui, The New World Order and the Security Council: Testing the Legality of Its Acts (1994); Bernhard Graefrath, Leave to the Court What Belongs to the Court—The Libyan Case, 4 Eur. J. Int’l L. 184 (1993); Ken Roberts, Second-Guessing the Security Council: The International Court of Justice and Its Powers of Judicial Review, 7 Paceint’l L. Rev. 281 (1995); Edward McWhinney, The International Court as Emerging Constitutional Court and the Co-ordinate UN Institutions (Especially the Security Council): Implications of the Aerial Incident at Lockerbie, 1992 Can. Y.B. Int’l L. 261; Geoffrey R. Watson, Constitutionalism, Judicial Review, and the World Court, 34 Harv. Int’l L.J. 1 (1993); Vera Gowlland-Debbas, The Relationship between the International Court of Justice and the Security Council in Light of the Lockerbie Case, 88 AJIL 643 (1994); Oscar Schachter et al., remarks, UN Checks and Balances: The Roles of the ICJ and the Security Council, in Contemporary International Law Issues: Opportunities at a Time of Momentous Change 280–97 (1993 Joint Conference of the American Society of International Law and Nederlandse Vereniging voor Internationaal Recht, 1994) [hereinafter 1993 Joint Conference] ; Derek W. Bowett, The Impact of Security Council Decisions on Dispute Settlement Procedures, 5 Eur. J. Int’l L. 89 (1994).
5 Compare Franck, supra note 4, and Thomas M. Franck, The Security Council and “Threats to the Peace”: Some Remarks on Remarkable Developments, in Colloque, supra note 4, at 83 (urging judicial review) with Reisman, Crisis, supra note 4 (counseling against World Court review). The legalist/realist divide is a categorization adopted here for didactic purposes. Franck, Reisman and the other scholars writing on this issue do not identify themselves as in either camp and this categorization does not do justice to all the nuances of their respective positions.
6 See, e.g., Reisman, Crisis, supra note 4, at 83, 84, 95.
7 See, e.g., Serge Sur, comments, in Colloque, supra note 4, at 140; Benedetto Conforti, Le Pouvoir discre-tionnaire du Conseil de Securite en matière de constatation d’une menace contre lapaix, d’une rupture de la paix ou d’un arte d’agression, in Colloque, supra note 4, at 51, 60.
8 See, e.g., Reisman, comments, in Colloque, supra note 4, at 139–40; Reisman, Crisis, supra note 4, at 83, 92–100; Terry Gill, comments, 1993 Joint Conference, supra note 4, at 284.
9 See supra note 8. See also Sean D. Murphy, The Security Council, Legitimacy, and the Concept of Collective Security Afterthe Cold War, 32 Colum. J. Transnat’l L. 201, 252–69 (1994); Herdegen, supra note 4, at 150–52; Helmut Freudenshuβ, Article 39 of the UN Charter Revisited: Threats to the Peace and the Recent Practice of the UN Security Council, 46 Aus. J. Pub. Int’l L. 1, 36 (1993); Terry Gill, Nico Schrijver, Richard B. Lillich, comments, 1993 Joint Conference, supra note 4, at 283–95; Bortz, supra note 4, at 376–78. See also the U.S. arguments in the Libya case summarized in Evans, supra note 4, at 50–54.
10 See, e.g., Reisman, Crisis, supra note 4, at 92–93, and Reisman, comments, in Colloque, supra note 4, at 139 (arguing that contemporary jurists’ attempts to deconstruct “implied” constraints from the Charter reveal nothing about the intentions of Charter drafters or contemporary expectations, and concluding that judicial review is therefore “quite hollow”); Conforti, supra note 7, at 51–60 (to same effect); Herdegen, supra note 4, at 152 (commenting on the “indeterminacy” of chapter VII).
11 Serge Sur, Security Council Resolution 687 of 3 April 1991 in the Gulf Affair: Problems of Restoring and Safeguarding Peace (Research Paper No. 12), UN Doc. UNIDIR/92/53, at 8, 61 (1992) [hereinafter Resolution 687]. See also Serge Sur, Sécurité collective et rétablissement de la paix: La Résolution 687 (3 avril 1991) dans l’affaire du golfe, in Colloque, supra note 4, at 18; Reisman, Sur, F. Delon, comments, in id. at 139–40, 148, 152; Murphy, supra note 9, at 206, 246–69; Herdegen, supra note 4, at 145–49.
12 See, e.g., Franck, supra note 5, at 110; Thomas M. Franck, Fairness in the International Legal and Institutional System, 240 Recueil des Cours 189–221 (1993 III); Franck, comments, 1993 Joint Conference, supra note 4, at 280–83, 291, 293–96. See also GowUand-Debbas, supra note 4, at 658–61; Graefrath, supra note 4.
13 See Franck, supra note 5, at 110; Franck, supra note 12, at 189–221; Franck, comments, supra note 12. See also Harper, supra note 3, at 143–47; Francisco Orrego Vicuña, The Settlement of Disputes and Conflict Resolution in the Context of a Revitalized Role for the United Nations Security Council, in Colloque, supra note 4, at 41, 47; GowUand-Debbas, supra note 4, at 658–61; Evans, supra note 4, at 60–70, 75–76; Kennedy, supra note 4, at 910–15; Alain Pellet, Le Glaive et la balance, in International Law at a Time of Perplexity 539, 545–50 (Yoram Dinstein ed., 1989); Scott, supra note 1, at 91–97.
14 They argue, for instance, that Charter Article 42 does not authorize the Council to target civilians or deploy disproportionate force. See, e.g., Gowlland-Debbas, supra note 3, at 91–93; Order of Sept. 13, 1993 ICJ Rep. at 407 (Lauterpacht,J.,sep. op.); Michael Bothe, Les Limites despouvoirs du Conseil de Sécurité, in Colloque, supra note 4, at 67, 76–80; Watson, supra note 4, at 37. Even some of those skeptical of judicial review accept these limits on Council action. See, e.g., Herdegen, supra note 4, at 156–57.
15 Reisman, Crisis, supra note 4, at 94 (applying this term to Judge Lachs’s opinion in the Lockerbie case).
16 5 U.S. (1 Cranch) 137 (1803). In this case the U.S. Supreme Court found that it did not have jurisdiction to issue the writ of mandamus sought by Marbury because the act of Congress authorizing the writ extended the Court’s original jurisdiction beyond the limits allowed by the Constitution.
17 Franck, comments, 1993 Joint Conference, supra note 4, at 282.
18 The Marbury analogy comes up repeatedly, especially among U.S. scholars. See, e.g., Watson, supra note 4; Franck, supra note 4; Evans, supra note 4, at 65–67; Reisman, Crisis, supra note 4, at 92; Kennedy, supra note 4, at 915; Herdegen, supra note 4, at 149; Franck, Lillich, comments, 1993 Joint Conference, supra note 4, at 280–83, 295; Roberts, supra note 4. See also Michael J. Glennon, Protecting the Court’s Institutional Interests: Why Not the Marbury Approach?, 81 AJIL 121 (1987). Although none of these writers argue that Marbury is direcdy relevant, neither do they examine the limits of the analogy to Marbury.
19 See, e.g., Reisman, Crisis, supra note 4, at 89–96; Paul J. I. M. de Waart, The UN System at a Crossroads: Peoples’ Centre or Big Brothers’ Small Club?, in Towards More Effective Supervision by International Organizations 49, 61–64 (Niels Blokker & Sam Muller eds., 1994) [hereinafter Effective Supervision], Franck is more cautious, indicating only that the Court should keep the “door open” in the pending Lockerbie and Bosnia cases and be ready to remedy the Council’s “legitimacy deficit” if necessary. See, e.g., Franck, comments, 1993 Joint Conference, supra note 4, at 293–94.
20 Compare Watson, supra note 4; Herdegen, supra note 4, at 152–54 (finding diat die broad terms of the UN Charter, along with the Charter’s “travaux preparatoires,” grant the Security Council broad, but not unlimited, discretion under chapter VII); Scott, supra note 1, especially at 75–87, 119–25 (to same effect) with Roberts, supra note 4, at 289–93 (concluding that the Charter’s negotiating history does not favor judicial review).
21 Reisman, for example, proposes, as an alternative to judicial review, the establishment of an appropriate informational loop with the more representative political body, die General Assembly, when die Council is in a chapter VII mode. Reisman, Crisis, supra note 4, at 92–100; Reisman, comments, in Colloque, supra note 4, at 139–40. See also Franck, supra note 12, at 41–61, 189–221; Franck, supra note 5, at 85–107; Franck, comments, 1993 Joint Conference, supra note 4, at 280–97; Sur, Resolution 687, supra note 11, at 61; Sur, comments, in Colloque, supra, at 139–40; Roberts, supra note 4, at 318–19.
22 See UN Charter Arts. 25, 48.
23 Under Article 34 of die ICJ Statute, only states may be parties to contentious cases. International organizations have the right only to present information to die Court in such cases and, of course, are not parties to any subsequent judgment. Compare Articles 65–68 of the ICJ Statute widi Article 96 of the Charter, which permits requests for advisory opinions by certain international organizations.
24 ICJ Statute Art. 59; UN Charter Art. 94. See also Gowlland-Debbas, supra note 4, at 670–73; Scott, supra note 1, at 95 n.304.
25 See, e.g., Elihu Lauterpacht, The Legal Effect of Illegal Acts of International Organisations, in Cambridge Essays in International Law: Essays in Honour of Lord Mcnair 88 (1965); Gowlland-Debbas, supra note 4, at 670.
26 Except in the unlikely event that all UN members were to join together as parties to a contentious case raising the validity of some UN action, or in the equally unlikely event that all UN members successfully intervened in an ongoing case brought by other litigants under Article 62 or 63 of the Court’s Statute; in such an instance, the case would be nearly identical to one involving the United Nations as a party.
27 For a survey of exceptional treaties that make advisory opinions binding on their parties, see Roberto Ago, “Binding” Advisory Opinions of the International Court of Justice, 85 AJIL 439 (1991).
28 Under the ICJ Statute, it is also impossible to bring a case against a named individual—whether the Secretary-General or the President of the Security Council—and therefore (indirectly) make the Organization a party.
29 The effect of any ICJ judgment in this regard depends on whether the Court’s interpretations of the Charter are generally accepted by the UN membership. See, e.g., Louis Sohn, Interpreting the Law, in United Nations Legal Order 169 (Oscar Schachter & Christopher C. Joyner eds., 1995). Acceptance may not emerge. Indeed, to Eugene Rostow, Article 94 renders the duty to comply with any Court decision “precatory, conditional, advisory, and indeed nugatory—entirely nugatory for the permanent members of the Security Council and uncertain, to say the least, for all other members.” Eugene V. Rostow, Disputes Involving the Inherent Right of Self-Defense, in The International Court of Justice at a Crossroads 264, 271 (Lori F. Damrosched., 1987).
30 Arguments that the Council would be bound by “good faith” or “comity” to give effect to determinations made by the Court in the course of a contentious case between states assume that such principles apply to such cases. See, e.g., Scott, supra note 1, at 95 & n.304.
31 See, e.g., Reisman, Crisis, supra note 4, at 89 (the Court should be deferential whenever the Council is “factually in a chapter VII mode”). Reisman’s concern over the possibility of Court review even when the Council has taken only chapter VI action appears to be all the more justified insofar as it is agreed that the Council is authorized to take legally binding decisions even under chapter VI—pursuant to Article 25 of the Charter. See, e.g., 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 (Advisory Opinion of June 21) [hereinafter Namibia]. To the extent that realists worry about Court review because the Court should not be empowered to dispute the legality of any legally binding decision by the Council, that possibility appears to exist under both chapter VI and chapter VII. But there appear to be potentially troublesome cases even when parties approach the Court seeking a determination before the Council is in a “chapter VII mode.” These may present graver difficulties for the Court and Council since the intent of such challenges may be to preclude options that the Council ought to retain. See Scott, supra note 1, at 93 n.300.
32 This is especially the case if, as has been suggested, the Council itself has turned a blind eye to some violations of the sanctions. See, e.g., Frederic L. Kirgis, Jr., International Organizations in Their Legal Setting 656 (2d ed. 1993). The hypothetical case in the text is inspired by recent Syrian complaints. See Note Verbale Dated 31 January 1991 from the Permanent Representative of the Syrian Arab Republic to the United Nations Addressed to the Secretary-General, UN Doc. S/22193, at 1 (1991).
33 As argued in Scott, supra note 1, but apparently not now being argued in the case as it proceeds to the merits. Conversation with Thomas Franck, supra note 1.
34 See, e.g., Order of Sept. 13, 1993 ICJ Rep. at 441, para. 103 (Lauterpacht, J., sep. op.).
35 This would be the case, for instance, if the Court made the (unlikely) finding that Libyan sanctions impermissibly intrude on Libya’s sovereign rights to refuse to extradite its own nationals. Such a broad finding would make it difficult for the Council to take any action to compel Libya to transfer its nationals for trial. This would not be the case, however, if the Court took the view, for instance, that the Council’s sanctions were merely intended to impose a duty on Libya to negotiate in good faith and that the Council’s limited sanctions do not intrude on Libya’s sovereign rights. Of course, if the Court took this view, even this affirmation of the Council’s actions would contain an implicit limitation on the future scope of Council sanctions. On the other hand, a judicial finding that the Council’s arms embargo violates Bosnia’s right to defend itself against genocide need not prevent the Council from taking other measures, such as economic sanctions, that could not be said to violate that right.
36 Lauterpacht, supra note 25, passim. See also Gowlland-Debbas, supra note 4, at 670.
37 As suggested in Scott, supra note 1, at 133 n.409. As the Memorial indicates, however, this does not necessarily apply to the effect of an ICJ determination regarding jus cogens. Id. at 133–39.
38 Indeed, the Orders on provisional measures in the Lockerbie and Bosnia cases reflect the Court’s desire to limit the scope of these cases. Bosnia’s case has been reduced, on jurisdictional grounds, to issues direcUy arising from the Genocide Convention. See Orders of Apr. 8 and Sept. 13, 1993 ICJ Rep. 3, 325. The Court has also limited Libya’s cases against the United States and the United Kingdom to action under the Montreal Convention. See Lockerbie, 1992 ICJ Rep. 3, 114.
39 See, e.g., de Waart, supra note 19, at 62 (criticizing the Orders for “negligenfce] in protecting the sovereignty of member states”).
40 Franck, supra note 5, at 218–19; Franck, supra note 4.
41 See, e.g., Reisman, Crisis, supra note 4, at 90–94 (criticizing the Orders for lack of deference to the Council).
42 Even within the United States, it is well to remember that it was not until its decision in Dred Scott in 1857, 54 years after Marbury was decided, that the Supreme Court was again to find federal legislation unconstitutional. Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
43 Reisman, Crisis, supra note 4, at 97–99.
44 Reisman acknowledges the potential for judicial review in the Court’s advisory jurisdiction and recognizes that such opinions are not devoid of political and legal force. As he puts it, “[a] statement of the law, rendered according to due process by a court obliged to decide according to law, cannot help but say something authoritative about the law.” Id. at 92.
45 Id. But see Watson, supra note 4, at 27 (asserting that contentious cases have arguably greater “precedential” value).
46 Much of international institutional law has been influenced by the Court’s advisory opinions. Consider, for example, the impact of the Reparation case on the doctrines of implied powers, legal personality and treaty-making capacity, and on the interpretive “principle of effectiveness”; the impact of the Certain Expenses case on peacekeeping powers, the scope of the General Assembly’s powers vis-à-vis the Council’s, and the “duty to pay”; the determination of the Effect of Awards case of the scope of a UN organ’s power to create “independent” subsidiary organs; and the impact of the Namibia case on the General Assembly’s implied powers, the role of institutional practice in the interpretation of the Charter, and the meanings of such Charter terms as “abstention,” “dispute” and “situation.” Reparation for injuries suffered in the service of the United Nations, 1949 ICJ Rep. 174 (Apr. 11) [hereinafter Reparation]; Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), 1962 ICJ Rep. 151 (July 20) [hereinafter Certain Expenses]; Effect of awards of compensation made by the United Nations Administrative Tribunal, 1954 ICJ Rep. 47 (July 13) [hereinafter Effect of Awards]; Namibia, 1971 ICJ Rep. 16. Indeed, even once-controversial advisory opinions have proven influential with time. Thus, the Conditions of Admission opinion, the subject of a contentious nine-to-six ruling by the Court, expressed the view that “the political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers or criteria for its judgment.” Admission of a State to the United Nations (Charter, Art. 4), 1948 ICJ Rep. 57 (May 28). This acknowledged limitation on the power of UN organs provides the starting point for defenders of judicial review today.
47 For one example, see the dissenting opinion of Judge Krylov in the Reparation case, 1949 ICJ Rep. at 219 (pointing out the ways the Court’s majority opinion constitutes, in his view, judicial legislation). See also Ervin P. Hexner, Teleological Interpretations of Basic Instruments of Public International Organizations, in Law, State, and International Legal Order 119 (Salo Engel ed., 1964). The Court’s activism in its advisory capacity would hardly surprise those who have observed similar activism where domestic courts are authorized to render opinions on “abstract” questions. See, e.g., Alec Stone, Abstract Constitutional Review and Policy Making in Western Europe, in Comparative Judicial Review and Public Policy 41, 50–55 (Donald W.Jackson & C. Neal Tate eds., 1992) [hereinafter Comparative Review].
48 ICJ Communique No. 94/24 (Dec. 23, 1994) (request based on GA Res. 49/75K (Dec. 15, 1994)). For one view of the wide range of issues posed by these cases, see Nicholas Rostow, The World Health Organization, the International Court of Justice, and Nuclear Weapons, 20 Yale J. Int’l L. 151 (1995).
49 Consider, hypothetically, a WHO request for views on the health impact of a particular sanctions regime, or a request by ECOSOC directed at economic effects, or a request by the General Assembly relating to human rights effects. These requests could also someday come in the form of jus cogens challenges under Article 53 or 64 of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, Mar. 21,1986, UN Doc. A/CONF.129/15 (1986), reprinted in 25 ILM 543 (1986). Article 66 of the Convention envisions advisory opinions directed at testing the consistency of existing treaties with jus cogens (under either Article 53 or 64 of the Convention) and provides that any such advisory opinions would be “accepted as decisive by all the parties to the dispute concerned.”
Note, however, that the potential for judicial delegitimation because of the Court’s response to such wide-ranging opinions is particularly severe. As James Boyd White has noted in connection with the U.S. Supreme Court, a court’s claim to special expertise and singular relevance might be lessened if it opines in the abstract. James Boyd White, When Words Lose Their Meaning 264–65 (1984); see also infra note 195.
50 See, e.g., Louis B. Sohn, Rights in Conflict: The United Nations and South Africa 1–7, 39–61 (1994); Sohn, supra note 29, passim.
51 See, e.g., Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev. 799 (1995) (discussing the impact of congressional and executive practices on the treaty power); Philip Bobbitt, Constitutional Fate 193 (1982) (contending that there are constitutional gaps so vast in U.S. Supreme Court precedent that Congress must have internalized certain limits).
52 See infra note 82 (list of constitutional innovations). Louis Sohn has noted that there is an unfortunate preoccupation with the ICJ and courts generally, to the detriment of close scrutiny of the day-to-day constitutional developments undertaken by other organs. Sohn, supra note 50, at 174–75; Sohn, supra note 29, at 227.
53 Laurence H. Tribe, American Constitutional Law 25 (2d ed. 1988).
54 See, e.g., GA Res. 48/88 (Dec. 20, 1993), and 47/121 (Dec. 18, 1992); Bedjaoui, supra note 4, at 123–26. See also GA Res. 41/31 (Nov. 3, 1986) (calling on the United States to comply with the Court’s Judgment in the Nicaragua case).
55 See UN Charter Arts. 10, 17, 22; Bedjaoui, supra note 4, at 125–26.
56 For concerns along these grounds, see, e.g., Middle East Watch, Human Rights Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War (1991).
57 Reisman, Crisis, supra note 4, at 98–99; Louis B. Sohn, The Use of Consultations for Monitoring Compliance with Agreements Concluded under the Auspices of International Organizations, in Effective Supervision, supra note 19, at 65.
58 See, e.g., Murphy, supra note 9, at 235–46; John R. Crook, 77K United Nations Compensation Commission—A New Structure to Enforce State Responsibility, 87 AJIL 144 (1993); David J. Bederman, The United Nations Compensation Commission and the Tradition of International Claims Settlement, 27 N.Y.U. J. Int’l L. & Pol. 1 (1994); The United Nations Compensation Commission (Richard B. Lillich ed., 1995) [hereinafter Compensation Commission].
59 Prosecutor v. Tadić, Case IT–94–1–T, Decision on Jurisdiction, paras. 16, 40 (Aug. 10, 1995). Thus, the chamber found that the Council had not acted “arbitrarily” in establishing the Yugoslav Tribunal but had acted as a result of a protracted incremental process; that none of the arguable limits on the Council’s powers, “whether imposed by the terms of the Charter or general principles of international law and, in particular, jus cogens,” were applicable; that the Tribunal was established to prosecute under customary law and not “some eccentric and novel code of conduct or some wholly irrational criterion”; that, while the Council’s finding of a threat or breach of the peace was nonjusticiable, establishment of the Tribunal was “a seemingly entirely appropriate reaction to a situation in which international peace is clearly endangered”; that establishment of the Tribunal was an appropriate measure under Charter Article 41 because states believed that it would assist in the restoration of peace and serve a deterrent effect; that the Council, like the General Assembly, has the power to create a subsidiary judicial body; and that the principle of jus de non evocando (requiring that accused be tried by regular and not specially created courts) is not applicable to action under chapter VII. Id., paras. 16, 17, 19, 23–27, 35, 37.
60 Prosecutor v. Tadić, Case IT–94–1–AR72, paras. 18–22 (Oct. 2, 1995). In so doing, the appeals chamber rejected the trial chamber’s resort to the political question doctrine and affirmed that the first obligation of any court is to ascertain its own competence. Id., para. 18, The appeals chamber rejected as irrelevant the prosecutor’s plea that the Tribunal was not established to scrutinize the actions of UN organs. Id., para. 20. Significantly, in deciding that it had jurisdiction to consider this question, the chamber cited the ICJ’s Advisory Opinions in Namibia and Effect of Awards. Id., para. 21.
61 Id., paras. 28–36. It further found that the Council is empowered to turn to a judicial body as its instrument, citing once again the ICJ’s Effect of Awards Advisory Opinion. Id., paras. 37–38.
62 Id., para. 45; see also paras. 46–47.
63 See, e.g., id., paras. 37–38 (arguing that, while the Council is not provided with judicial powers, it can turn to judicial bodies to fulfill its purposes).
64 These bodies have not escaped criticism. Iraq and others have criticized the one-sided nature of the mandate and structure of the Compensation Commission—which gives Iraq little say in the Commission’s work and fails to provide for consideration of any claims by Iraq or Iraqi nationals, including claims stemming from alleged violations of humanitarian law by the allied forces during the Persian Gulf conflict. See, e.g., UN Doc. S/22456 (1991) (letter of Apr. 6, 1991, from Iraqi Minister of Foreign Affairs to UN Secretary-General and President of the Security Council); Murphy, supra note 9, at 238–39. See also Frederic L. Kirgis, Jr., Claims Settlement and the United Nations Legal Structure, in Compensation Commission, supra note 58, at 103 (criticizing the Council for, among other things, the lack of procedural safeguards within the Compensation Commission). Similarly, the Boundary Commission’s limited mandate assumed the legitimacy and legal status of a treaty, which Iraq contested. UN Doc. S/22456, supra. Observers of sanctions committees have criticized the methods and procedures under which these committees operate and have recommended changes to encourage transparency and consistency. Michael P. Scharf & Joshua L. Dorosin, Interpreting UN Sanctions: The Rulings and Role of the Yugoslavia Sanctions Committee, 19 Brook. J. Int’l L. 1 (1993). Some of these problems may be resolved if these “technical” bodies develop processes more akin to those deployed by administrative courts. Cf. Mauro Cappelletti, Fundamental Guarantees of the Parties in Civil Litigation: Comparative Constitutional, International and Social Trends, 25 Stan. L. Rev. 651, 686 (1973) (discussing such transformations within domestic legal systems).
Some have also criticized aspects of the Council’s procedures for handling war crimes in the former Yugoslavia. See, e.g., de Waart, supra note 19, at 63–64 (criticizing the establishment of the Yugoslav war crimes Tribunal for not taking into account the “vox populi” of the General Assembly); ABA Section of International Law and Practice, Report on the International Tribunal to Adjudicate War Crimes Committed in the Former Yugoslavia (1993) (noting some potential problems with protection of defendants’ rights).
65 See text supra at notes 59–62. Once ad hoc war crimes tribunals are established as “independent,” their independence cannot be trammeled. See generally Effect of Awards, 1954 ICJ Rep. 47.
66 For a summary of some of these possibilities and their potential significance, see John H. Barton & Barry E. Carter, International Law and Institutions for a New Age, 81 Geo. L.J. 535 (1993). One could envision, for example, disputes brought under bilateral investment treaties (BITs) or treaties of friendship, commerce and navigation (FCNs) by parties anxious to test the limits of Council economic sanctions or their interpretation. FCNs typically grant a private right of action, at least in U.S. courts, while BITs give investors the right to take treaty violations to arbitration. A private investor’s arbitral claim against a state that invokes a Council resolution as a defense to its BIT obligation to permit the free transfer of profits might be brought, for instance, to test the resolution’s purported direct effect on private parties and their contracts. In some cases the Council has anticipated these possibilities and has attempted to terminate private rights of action in domestic courts or under a treaty. See, e.g., SC Res. 687, para. 29 (Apr. 3, 1991). Presumably, those who object to ICJ review are equally willing to deprive private parties of any rights under existing treaties or other laws even when the Council does not explicitly indicate that these actions might undercut the effectiveness of its program. But note that the effect of the termination of such private rights of action goes beyond protecting the Council’s supremacy. In practice, if the individual hurt by the sanction has no remedy, each member’s interpretation of the scope and domestic effect of Council resolutions has been given primacy. Absent remedial action by the Council, individuals may have no remedy even when a state has applied the sanction too broadly, to the detriment of contractual or other rights.
67 For instance, a GATT panel proceeding addressing the scope of a UN sanctions regime in response to a GATT party’s accusation that certain measures were not required by the Council but are being taken for protectionist reasons.
68 Convention on International Civil Aviation, Dec. 7, 1944, Art. 84, 61 Stat. 1180, 15 UNTS 295 (Chicago Convention).
69 See, e.g., Diggs v. Shultz, 470 F.2d 461 (D.C. Cir. 1972) (finding Council sanctions against Rhodesia unenforceable in the face of a later-in-time federal statute); People of Saipan v. United States Dep't of Interior, 502 F.2d 90 (9th Cir. 1974) (finding self-executing a trusteeship agreement supervised by the Council and rejecting as too tenuous the possibility of enforcement by the Security Council); Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v. Minister for Transport,  2 I.L.R.M. 551 (Ir. High Ct.) (addressing the scope of Yugoslav sanctions and the weight to be given to the views of a Council sanctions committee). Indeed, as Council actions implicate a greater number of issues, domestic court challenges to Council action become more likely. See, e.g., Conforti, supra note 7, at 144 (noting that municipal courts might be tempted to contest the legitimacy of Council decisions when there is no verification of their legality). Thus, a zealous lawyer, defending the next Duško Tadić prior to the client’s transfer to the Yugoslav war crimes Tribunal, would probably attempt to challenge the Tribunal’s jurisdiction in domestic court. Cf. supra notes 59–62.
70 Those examining judicial review to date have not considered the possible relevance of other supervisory mechanisms. Cf. Ignaz Seidl-Hohenveldern, Failure of Controls in the Sixth International Tin Agreement, in Effective Supervision, supra note 19, at 255, 270–71 (proposing that organizational immunity be lifted in certain cases to give domestic courts a larger role in legitimizing the activities of organizations); Eric Suy, The Development of Supervisory Mechanisms within the CSCE Framework, in id. at 83, 91–92 (discussing the legitimating role of public access to CSCE meetings); Nicolas Valticos, Once More about the ILO System of Supervision: In What Respect Is It Still a Model?, in id. at 99 (discussing whether the International Labour Organization’s various distinctive methods of supervision remain a model for other international organizations). For an overview of supervisory forms, including “internal” supervision (as by administrative tribunals), and their possible impact, see Niels Blokker & Sam Muller, Some Concluding Observations, in id. at 275. The (de) legitimating impact of “Legal Opinions of the Secretariat,” published annually in the UN Juridical Yearbook, is also worth considering. For a survey of alternative ways to make the international system more accountable and expand participation, without judicial review as such, see Note, Discretion and Legitimacy in International Regulation, 107 Harv. L. Rev. 1099 (1994).
71 See, e.g., International Peacekeeping Policy Act of 1995, S. 420, 104th Cong., 1st Sess. (1995); National Security Revitalization Act, H.R. 7, 104th Cong., 1st Sess.; and Peace Powers Act of 1995, S. 5, 104th Cong., 1st Sess. For background, see Wash. Wkly. Rep., Nov. 1994–May 1995.
72 Compare Reisman, Crisis, supra note 4, at 98–99 (proposing an “informational loop” between the Council and the Assembly) with Bowett, supra note 4, at 97 (advocating judicial review since there is no guarantee that legal rights will be protected by the “political” Assembly).
73 Cf. Franck, supra note 4.
74 Generalizing from the EU experience and inspired by Hirschman’s work on “exit and voice” in other disciplines, Joseph Weiler has suggested that lawmaking by international bodies may follow a peculiar dynamic: successful international organizations evolve into effective lawmaking institutions when members forgo their sovereign option to “exit” (either totally or selectively) and opt instead to correct organizational inadequacies by exercising a greater “voice” in the organizations’ decision-making processes. J. H. H. Weiler, The Transformation of Europe, 100 Yale L.J. 2403 (1991) (drawing from Albert O. Hirschman, Exit, Voice and Loyalty: Responses to Decline in Firms, Organizations, and States (1970)). Weiler argues that the more an international organization successfully “legislates” (in the sense of promulgating rules that are binding both on and within states), the more members consciously involve themselves in the organization’s ways of making law. Id. at 2466–67. He argues that at times the relationship between legal and political developments in the European Union was “bidirectional and even circular,” with the “integrating legal developments at least indirectly influenc[ing] the disintegrating political ones.” Id. at 2426. See also David J. Gerber, The Transformation of European Community Competition Law?, 35 Harv. Int’l L.J. 97 (1994) (applying Weiler’s insights and finding similar bidirectional effects among Court, Commission and national institutions). Weiler’s ideas may also find some resonance in the work of those who have examined the evolution of judicial review in domestic legal systems, especially the constitutionalization of formerly socialist states. See, e.g., William Kitchin, Establishing and Exercising Judicial Review in the Soviet Union: The Beginnings, in Comparative Review, supra note 47, at 59.
75 For suggestions to this effect, see, e.g., Ruth Gordon, United Nations Intervention in Internal Conflicts: Iraq, Somalia, and Beyond, 15 Mich. J. Int’l L. 519, 527 (1994); Mohammed Bedjaoui, Introduction: On the Efficacy of International Organizations: Some Variations on an Inexhaustible Theme …, in Effective Supervision, supra note 19, at 7, 18; Bedjaoui, supra note 4, at 37. Moreover, to the extent other groups within states become more aware of the impact on their interests of decisions taken by executive branch officials, we might also expect increased concern with the lack of direct democratic accountability. The “democratic deficit” in UN lawmaking is being increasingly addressed by a restive U.S. Congress, which at this writing seems intent on asserting a greater role with respect to UN peace operations. See supra note 71.
76 Cf. de Waart, supra note 19, at 61–64 (advocating judicial review by the ICJ and that members’ representatives to the Assembly act under the democratic supervision of their national parliaments).
77 See, e.g., Watson, supra note 4; Herdegen, supra note 4, at 152–54; Scott, supra note 1, esp. at 75–87, 119–25; Roberts, supra note 4, at 289–93.
78 During the negotiation of the Charter in 1945, Belgium had sought, first, an amendment providing as follows:
Any State, party to a dispute brought before the Security Council, shall have the right to ask the Permanent Court of International Justice whether a recommendation or a decision made by the Council or proposed in it infringes on its essential rights. If the Court considers that such rights have been disregarded or are threatened, it is for the Council either to reconsider the question or to refer the dispute to the Assembly for decision.
Doc. 2, G/7(k)(1), 3 U.N.C.I.O. Docs. 335, 336 (1945). When this proposal failed to win support, Belgium attempted to secure an amendment providing that the Committee on Legal Problems “should determine the proper interpretative organ for the several parts of the Charter.” Doc. 664, IV/2/33, 13 id. at 633, 633. This, too, failed to win support, and one commentator, reviewing this history, concludes that “the framers did not wish the Charter to authorize judicial review ‘as an established procedure.’ ” Watson, supra note 4, at 12.
79 Cf Certain Expenses, 1962 ICJ Rep. at 184–97 (Spender, J., sep. op.) (giving reasons why reliance on the presumed original intent of the Charter drafters is “beset with evident difficulties”).
80 See, e.g., Watson, supra note 4; Scott, supra note 1, at 82–87. Reacting to the original Belgian appeal for regularized Court review of Council action (see supra note 78), the U.S. delegate indicated that:
He did not interpret the Proposals as preventing any state from appealing to the International Court of Justice at any time on any matter which might properly go before the Court. On the whole, he did not consider the acceptance of the Belgian Amendment advisable, particularly since he believed that the Security Council was bound to act in accordance with the principles of justice and international law.
Doc. 433, III/2/15, 12 U.N.C.I.O. Docs. 47, 49 (1945); see also Doc. 873, IV/2/37, 13 id. at 653 (1945). The subcommittee examining the issue at the time rejected the Belgian proposal but decided to approve the report
on interpretation of the Charter which suggested that if two member states are at variance concerning the interpretation of the Charter, they are free to submit the dispute to the Court, and that if two organs are at variance concerning the correct interpretation of the Charter they may either ask the Court for an advisory opinion, establish an ad hoc committee of jurists to examine the question and report its views, or have recourse to a joint conference.
Id. at 654. This record implies that those involved in the drafting most probably did not intend to vest the Court with “exclusive power to provide an authoritative interpretation of the Charter.” Sohn, supra note 29, at 203.
81 For constitutional developments within the European Union, see Weiler, supra note 74; Joseph H. H. Weiler, Eurocracy and Distrust: Some Questions concerning the Role of the European Court of Justice in the Protection of Fundamental Human Rights within the Legal Order of the European Communities, 61 Wash. L. Rev. 1103 (1986); Paul R. Dubinsky, The Essential Function of Federal Courts: The European Union and the United States Compared, 42 Am. J. Comp. L. 295, esp. 340–46 (1994). Indeed, Dubinsky argues that the European Court of Justice’s judicial activism is in part due to the open-ended principles contained in the treaties it has been expounding. Id. at 346. For other examples of the assumption of judicial review powers without explicit constitutional warrant, see Allan R. Brewer-Carias, Judicial Review in Comparative Law (1989); Judicial Activism in Comparative Perspective (Kenneth M. Holland ed., 1991); Comparative Review, supra note 47.
82 Today, when we have de facto amended the Charter provisions on deployment of UN forces pursuant to Article 43 agreements and at the direction of a Military Staff Committee; when the Council has delegated important functions to judicial and quasi-judicial bodies such as an international criminal court, a compensation commission and sanctions committees; when the Council has taken purportedly binding action under chapter VI; when the Organization has resorted to budget making by consensus instead of the two-thirds vote envisioned in Article 18; when it has created peacekeeping out of an imagined “chapter VI and one-half” and insisted on forceful implementation of sanctions pursuant to a nonexistent “Article 41 and one-half”; when the Organization has managed to seat Russia instead of the USSR as a permanent member despite the wording of Article 27; and when it has resorted to “peacekeeping with teeth” in situations probably never contemplated by the framers—as in assistance in humanitarian crises (UNISOM II in Somalia, UNPROFOR in Croatia) or in response to prior aggression (UNIKOM in Iraq)—the burden appears to be on those who insist that we need a Charter amendment to permit the Court to interpret the Charter. For other examples, see Sohn, supra note 29, at 226–29 (contending that the UN Charter, in its 50 years, has seen more interpretive changes than the U.S. Constitution in 200); Helmut FreudenschuB, Between Unilateralism and Collective Security: Authorization of the Use of Force by the UN Security Council, 5 Eur. J. Int’l L. 492 (1994) (surveying the Council’s innovations in the deployment of force since Aug. 5, 1990). See also Kirgis, supra note 3. Such constitutional creativity absent formal amendment also undermines one conceivable rationale for denigrating judicial review, namely, that an ICJ decision interpreting the Charter would be nearly impossible to “reverse” given the difficulty of amending the Charter under its Article 108.
83 Cf. Dubinsky, supra note 81, at 342–44 (suggesting, in the context of the European Union and the United States, that explicit constitutional amendment facilitates acceptance of judicial activism). This assumes that there is an “antimajoritarian” difficulty to be addressed as regards the European Union. But see Weiler, supra note 81, at 1115–19 (explaining why the antimajoritarian difficulty did not seem applicable to the European Court, at least in 1986).
84 See, e.g., David M. Beatty, Human Rights and the Rules of Law, in Human Rights and Judicial Review: A Comparative Perspective 1 (David M. Beatty ed., 1994); Weiler, supra note 81; Watson, supra note 4, at 28–33; Alec Stone, Judging Socialist Reform: The Politics of Coordinate Construction in France and Germany, 26 Comp. Pol. Stud. 443 (1994). For a summary of arguments addressing the “countermajoritarian” difficulty posed by the U.S. federal judiciary, see Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. Chi. L. Rev. 689, 700–13, 748–53 (1995).
85 See, e.g., Heidi Feldman, Objectivity in Legal Judgment, 92 Mich. L. Rev. 1187 (1994).
86 Cf. Oscar Schachter, United Nations Law in the Gulf Conflict, 85 AJIL 452, 468–69 (1991) (suggesting that even aggressors retain some inalienable rights).
87 Cf. text at and notes 187–96 infra (discussion of J. B. White model of review). For an examination of how adjudicative models contribute to perceptions of procedural justice, see E. Allan Lind & Tom R. Tyler, The Social Psychology of Procedural Justice (1988).
88 If so, critics of the Court need to address why its 15 members, sitting in a setting far less politicized than the Security Council and enjoying a mandate to take a more long-term perspective, will invariably produce opinions that fail to generate perceptions of “objectivity” whenever Council actions are at issue. Compare Feldman, enumerating factors tending to produce such perceptions, supra note 85, at 1230–47 with, e.g., those who have sought to explain how the ICJ has “mediated positivism” by producing “a degree of certainty,” invoking principles familiar to lawyers, or adopting a “magisterial” style, see, e.g., Oscar Schachter, The Nature and Process of Legal Development in International Society, in The Structure and Process of International Law 767 (Ronald St. J. Macdonald & Douglas M.Johnston eds., 1983).
89 This assumes, of course, that some international legal norms are not “indeterminate.” For an examination of the alleged “indeterminacy” of virtually every rule applied by the World Court, see Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1989). For a look at the “indeterminacy” of many human rights norms, see Bruno Simma, International Human Rights and General International Law: A Comparative Analysis, in 4 Collected Courses of the Academy of European Law, bk. 2, at 153 (1995). As both Koskenniemi and Simma would concede, that both ICJ and human rights judges have given content to “indeterminate” norms has not prevented the successful resolution of the underlying disputes.
90 See, e.g., L. D. M. Nelson, The Roles of Equity in the Delimitation of Maritime Boundaries, 84 AJIL 837 (1990); Jan Schneider, The Gulf of Maine Case: The Nature of an Equitable Result, 79 AJIL 539 (1985).
91 Cf Reisman, Crisis, supra note 4, at 88–89 (suggesting that in Lockerbie-type cases the proper course for the Court is to divine the Council’s intent). This course requires that the Court make initial judgments on whether and what the Council wants reviewed. These determinations may themselves undermine the program of the Council since it may fail to anticipate the scope of the Court’s subsequent judgment and might be as embarrassed by the result as by an “uninvited” judgment. This result is made more likely by the difficulties of any judicial attempt to divine the Council’s “intent.” To do so, the Court probably must determine, for example, the significance and status of interpretive statements by the Council’s President—itself a controversial issue. See, e.g., Anthony Aust, The Procedure and Practice of the Security Council Today, in Colloque, supra note 4, at 365, 370–71. Certainly, its secretive consultations, the usual absence of legal advisers, and the lack of agreed records of nonpublic deliberations make study of the workings of the Council exceptionally difficult. See, e.g., id. at 366-68. Further, to the extent the Council’s decisions, such as the imposition of complex sanctions against Iraq in 1991, need to be interpreted in light of underlying reports by the Secretariat, intriguing difficulties would arise for the Court if those reports were alleged to have been drafted with subsequent interpretation in mind.
92 See, e.g., Herdegen, supra note 4, at 154–59. Sur defends the legality of the Council’s comprehensive measures against Iraq after the gulf war on the grounds, among others, that Resolution 687 required Iraq’s “acceptance” of its provisions, that the Council did not itself “establish” Iraq’s boundary with Kuwait, that the restrictions on weaponry did not amount to a complete “disarmament” of Iraq but rather were focused on weapons that were threatened or actually used during the war, and that the Council did not purport to find violations of treaties concluded outside the framework of the United Nations to which the United Nations was not a party. Sur, Resolution 687, supra note 11, at 17, 19, 25, 31. See also Ian Johnstone, Aftermath of the Gulf War: An Assessment of UN Action 19–23 (International Peace Academy, Occasional Paper Series, 1994).
93 Compare Franck, supranote 12, at 192–218 (attempting to answer whether the Council “treat[s] like cases alike,” and finding evidence of “principled standards”) with Peter H. Kooijmans, The Enlargement of the Concept of “Threat to the Peace,” in Colloque, supra note 4, at 111 (concluding that it is difficult to find a “straight line” in the Council’s threat-to-the-peace determinations, as “political considerations seem to be the determining factor”). Even Franck admits that what becomes clearest in examining the Council’s practice is the evidence of changing views of certain basic Charter norms, such as a decrease in the impact of Article 2(7) (noninterference in domestic jurisdiction) as a limit on UN action. Franck, supra, at 211.
94 As Professor Macdonald has noted, it is a mistake to attempt to distinguish law from politics by reference to “some quality of the legal rules and norms themselves. The distinctiveness of law lies instead in the particular style of reasoning and the way in which rules are used.” Ronald St. J. Macdonald, Changing Relations between the International Court of Justice and the Security Council of the United Nations, 1993 Annuaire Canadien de Droit International 3, 7.
95 Cf. Feldman, supra note 85, at 1253.
96 Weiler, supra note 74, at 2468–69. For one attempt at empirical measurement of the public legitimacy of the European Court of Justice, see Gregory A. Caldeira & James L. Gibson, The Legitimacy of the Court of Justice in the European Union: Models of Institutional Support, 89 Am. Pol. Sci. Rev. 356 (1995). For discussions of alternative formulations and possible components of “legitimacy,” compare Thomas M. Franck, The Power of Legitimacy Among Nations 80, 81, 85, 86–88, 171–72 (1990) with Jose E. Alvarez, The Quest for Legitimacy, 24 N.Y.U. J. Int’l L. & Pol. 199, 228–35 (1991) (reviewing Franck).
97 Compare Louis Henkin, An Agenda for the Next Century: The Myth and Mantra of State Sovereignty, 35 Va. J. Int’l L. 115 (1994) (endorsing current trends) with Ernest S. Easterly, The Rule of Law and the New World Order, 22 S.U. L. Rev. 161 (1995) (bemoaning the threatened loss of sovereignty).
98 Compare, for example, the view of U.S. constitutional scholars who have stressed that judicial review can only be understood in the shadow of constitutional amendment processes. Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. Chi. L. Rev. 1043, 1044 (1988); see also Croley, supra note 84, at 750 n.179.
99 Cf. Croley, supra note 84, at 750. See, e.g., de Waart, supra note 19, at 49 (proposing a similar democratic governance model for the United Nations).
100 Cf. Croley, supra note 84, at 751 & n.181. One concrete example might be South Africa’s pleas in the Namibia case alleging denial of its participation rights in the Security Council. Namibia, 1971 ICJ Rep. 16, paras. 23–25.
101 See, e.g., Sohn, supra note 29, at 186–87.
102 Cf. Croley, supra note 84, at 704–05, 751. See also Bedjaoui, supra note 75, at 26 (suggesting a need to verify the legality of the Council’s acts not only to reassure members but also “to assure ‘the peoples,’ when it is sought to mobilize them through world opinion, that there is nothing pernicious about the action contemplated by the Security Council”).
103 See, e.g., SC Res. 687 (Apr. 3, 1991), reprinted in 30 ILM 847 (1991).
104 See, e.g., Harper, supra note 3; André Beirlaen, La Distinction entre les differends juridiques el Us differends politiques dans la pratique des organisations intemationales, 11 Revue Belge de Droit International 405 (1975); Gowlland-Debbas, supra note 4, at 648–53.
105 While equal protection-type arguments, perhaps inherent in the Charter’s highly elastic reference to “sovereign equality,” surfaced in certain Iraqi complaints about post–Persian Gulf war sanctions, wUN Doc. S/22456, supra note 64, these arguments have scarcely emerged to date in either the Bosnia or the Lockerbie cases. But see Order of Sept. 13, 1993 ICJ Rep. at 438, para. 95 (Lauterpacht, J., sep. op.) (noting the unequal effects of the Council’s arms embargo on Bosnians as opposed to Serbs). Compare Sur, Resolution 687, supra note 11, at 7 (arguing that no such principle applies since the Council has total discretion) with Watson, supra note 4, at 35 (contending that Articles 1(2) and 55 contain “equal protection” principles that may be applied by the Court).
106 But see Franck, supra note 12, at 192–218 (asking whether the Council in such instances treats “like cases alike”).
107 Not even Judge Lauterpacht, the judge most favorable to Bosnia’s request for interim relief, would go that far. Order of Sept. 13, 1993 ICJ Rep. at 441, para. 103 (Lauterpacht, J., sep. op.) (indicating that “it would be difficult to say” that members are “positively obliged [under the Genocide Convention] to provide the Applicant with weapons and military equipment”). “Operational triage,” however distasteful, also seems inherent in both the Council’s and the Clinton administration’s criteria for authorization of “peace operations.” Security Council Sets Out Factors to be considered in Establishing United Nations Peacekeeping Operations, UN Press Release SC/5837 (May 3, 1994); The Clinton Administration’s Policy on Reforming Multilateral Peace Operations (White House, May 5, 1994).
108 As Kirgis has noted, some of the Council’s actions have the three essential characteristics of “legislative” acts within international organizations: “they are unilateral in form, they create or modify some element of a legal norm, and the legal norm in question is general in nature, that is, directed to indeterminate addressees and capable of repeated application in time.” Kirgis, supra note 3, at 520 (quoting Edward Yemin, Legislative Powers in the United Nations and Specialized Agencies 6 (1969)). The Council has also undertaken “findings of fact” and drawn “conclusions of law.” Id. at 527–32. See also Bedjaoui, supra note 4, at 42–53. Of course, not everything the Council does either is premised on legal considerations or leads to legally relevant precedents. Indeed, for some, it is this fact that justifies judicial review. See, e.g., Macdonald, supra note 94, at 18–19.
109 Gowlland-Debbas, supra note 3, at 64–66.
110 Id. at 67–71.
111 Id. at 67–68. See also Giorgio Gaja, Réflexions sur le rôle du Conseil de Securité dans le nouvel ordre mondial, 97 Revue Générale de Droit International Public 297 (1993).
112 See, e.g., Theodor Meron, War Crimes in Yugoslavia and the Development of International Law, 88 AJIL 78 (1994); Jordan J. Paust, Applicability of International Criminal Law to Events in the Former Yugoslavia, 9 Am. U.J. Int’l L. & Pol’y 499 (1994); Anne T. Goldstein, Recognizing Forced Impregnation as a War Crime Under International Law (Center for Reproductive Law & Policy, 1993).
113 See, e.g., Murphy, supra note 9, at 229–33; Jarat Chopra & Thomas G. Weiss, Sovereignly Is No Longer Sacrosanct: Codifying Humanitarian Intervention, 6 Ethics & Intl Aff. 95 (1992); David J. Scheffer, Toward a Modern Doctrine of Humanitarian Intervention, 23 U. Tol. L. Rev. 253 (1992); Juan Antonio Carrillo Salcedo, Le Rôle du Conseil de Sécurité dans l’organisation et la règlementation du “droit d’assistance humanitaire,” in Colloque, supra note 4, at 157; Maurice Torrelli, La Dimension humanitaire de la sécurité internationale, in id. at 169.
114 See, e.g., the views of individual judges in Lockerbie, text at and notes 158–67. See also Gianluca Burci, The Maintenance of International Peace and Security by the United Nations: Actions by the Security Council under the Chapter VII of the Charter, in Italian Society for International Organization, Prospects for Reform of the United Nations System 123, 144–46 (1993).
115 Gowlland-Debbas, supra note 3, at 74–90; see also Harper, supra note 3; Kirgis, supra note 3. Even realists acknowledge that the Council has been making quasi-judicial determinations with legal effect, see, e.g., Murphy, supra note 9, at 210–35, as have the Council’s “subsidiary” bodies. Thus, the decisions of the Compensation Commission for Iraq may have at least as great an impact on the law of state responsibility as those of the Iran-U.S. Claims Tribunal. See, e.g., Crook, supra note 58, at 148–50. But see Bederman, supra note 58, at 35–40 (expressing doubts about the status of Commission precedents). Some have noted that Council presidential statements have also been deployed to make quasi-legislative and quasi-judicial determinations. See, e.g., Kirgis, supra, at 519–20.
Questions also arise with respect to possible limits on the Council’s enforcement powers. Gowlland-Debbas, supra, at 90–94; Kirgis, supra, at 520–39; Gordon, supra note 75, passim. To cite but one example: could the Council, to secure funds for the payment of claims against Iraq, go beyond its Resolution 778 (which now authorizes the “borrowing” of certain Iraqi assets on a temporary basis) and demand the permanent expropriation of all Iraqi assets wheresoever held, including Iraqi embassy bank accounts? Such action would have potential implications in diplomatic law, extraterritorial application of law, and attribution and expropriation rules within the doctrine of state responsibility.
116 But see Harper, supra note 3, passim.
117 See, e.g., Schachter, supra note 86.
118 See, e.g., Elihu Lauterpacht, comments, 85 ASIL Proc. 46 (1991); Kirgis, supra note 3, at 532.
119 See, e.g., Harper, supra note 3, at 132–55.
120 See, e.g., Kirgis, supra note 3, passim.
121 See SC Res. 662 (Aug. 9, 1990), reprinted in 29 ILM 1327, 1328 (1990).
122 See, e.g., Gordon, supra note 75, passim. Other examples include Council or sanctions committee decisions with respect to humanitarian exceptions, which may establish precedents in humanitarian and human rights law. See Scharf & Dorosin, supra note 64, passim.
123 See generally Stone, supra note 84. See also, more generally, text at and notes 187–96 infra.
124 As noted by Gowlland-Debbas, supra note 4, at 661 (discussing the possibility of overlap in the context of state responsibility, where the outcome in one forum “could deprive the solution in the other of all meaning”). The point is not restricted to state responsibility. Thus, Court, Council and Assembly have all participated in the changing interpretation of Article 2(7), as in connection with apartheid and South Africa. See, e.g., Sohn, supra note 50, passim; Sohn, supra note 29, passim.
125 See, e.g., Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392 (Nov. 26); United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3 (May 24). For an advocate’s view of the significance of these cases, see Scott, supra note 1, at 75–87.
126 Indeed, the extent of financial liability for environmental harm, intentionally or negligendy caused and for “direct” or “indirect” harm, has proven to be a controversial subject, as is clear from the International Law Commission’s recent debates. See, e.g., Report of the International Law Commission on the work of its forty-fifth session, UN GAOR, 48th Sess., Supp. No. 10, at 43–132, UN Doc. A/48/10 (1993). While, for some, Resolution 687 on Iraq’s postwar responsibilities merely “reaffirmed” what Iraq plainly owed under established international law, see, e.g., Jeremy P. Carver, Dispute Resolution or Administrative Tribunal: A Question of Due Process, in Compensation Commission, supra note 58, at 69; and John R. Crook, The UNCC and Its Critics: Is Iraq Entitled to Judicial Due Process?, in id. at 77, 82, others have been more critical of these “quasi-judicial” determinations. See, e.g., Kirgis, supra note 64; and Kirgis, supra note 3, at 527–32 (noting, e.g., the legal ambiguities in the Council’s determinations that Iraq’s foreign debt is null and void).
127 Corfu Channel case (UK v. Alb.) (Merits), 1949 ICJ Rep. 4 (Apr. 9); Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (June 27). See also Sohn, supra note 29, at 174–87.
128 1994 ICJ Rep. 6 (Feb. 3).
129 Mary Ellen O’Connell, comments, 1993 Joint Conference, supra note 4, at 290–91. See also Mary Ellen O’Connell, The Prospect of Enforcing Monetary Judgments of the International Court of Justice: A Study of Nicaragua’s Judgment against the United States, 30 VA. J. Int’l L. 891 (1990).
130 AsJudge Bedjaoui put it: “The Security Council … will not gain in credibility, authority or efficiency unless the conviction takes root that it acts not as an institution above the Charter and international law but as their servant.” Bedjaoui, supra note 4, at 7.
131 Those concerned with the legitimacy of the Council cannot ignore the legitimacy of the Court and vice versa. But see David D. Caron, The Legitimacy of the Collective Authority of the Security Council, 87 AJIL 552 (1993); Burns H. Weston, Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy, 85 AJIL 516 (1991).
132 See generally Cappelletti, supra note 64. In Europe the first constitutional tribunals were directly influenced by Hans Kelsen, e.g., in Austria and Czechoslovakia in 1920. Other continental countries established such tribunals only in the 1940s. Brewer-Carias, supra note 81, at 32; Stone, supra note 47, at 41. For some states, such as Russia, judicial review came as late as 1989. Kitchin, supra note 74, at 59. Others, such as Israel, are still struggling with limited judicial review in the absence of a written constitution. Martin Edelman, Judicial Review and Israel’s Struggle for a Written Constitution, in Comparative Review, supra note 47, at 157.
133 Brewer-Carias, supra note 81, at 34.
134 See, e.g., id. at 32 (discussing the history of Spain, Italy and France with respect to such acts). Cf. the United States and executive decisions dealing with “foreign affairs,” as addressed by, e.g., Harold H. Koh, The National Security Constitution (1990).
135 See supra note 74. See also John H. Jackson, The Legal Meaning of a GATT Dispute Settlement Report: Some Reflections, in Effective Supervision, supra note 19, at 149 (discussing the evolution of rule-based GATT dispute settlement).
136 In some cases, one supreme body has the power to overturn legislation for violation of constitutional norms, while other systems give such power to all courts. Brewer-Carias, supra note 81, at 91; C. Neal Tate, Comparative Judicial Review and Public Policy: Concepts and Overview, in Comparative Review, supra note 47, at 3, 7. Some permit review prior to enactment of a law, and some only after the law has come into effect, while others permit both. Brewer-Carias, supra, at 92; Tate, supra, at 6; Stone, supra note 47, at 41. In some states a constitutional question may be raised only as an independent action, while others permit such consideration if incidental to another litigable case or question. Brewer-Carias, supra, at 92; Carl Baar, Social Action Litigation in India: The Operation and Limits of the World’s Most Active Judiciary, in Comparative Review, supra note 47, at 77. Some courts are permitted to raise the constitutional question sua sponte. Brewer-Carias, supra, at 133 (discussing Venezuela and Greece). Other states permit organs of the state to raise such questions, while yet others grant this privilege to individuals in all or in some instances (such as for violation of fundamental rights). Id. at 92.
137 Some decisions purport to be effective erga omnes, some only for the parties to the action. See, e.g., Tate, supra note 136, at 7–8. Constitutional decisions may or may not have stare decisis effect. Brewer-Carias, supra note 81, at 129 (discussing Mexican amparo and its effects). Some such decisions have only prospective effect, others retroactive, and many states, including the United States, have adopted positions somewhere in between. Id. at 93, 151–54. The German Federal Constitutional Court, for instance, has developed an elaborate, nuanced set of rules on the effect of such judgments. While in Germany a finding of unconstitutionality normally results in the annulment of the law, in certain cases, the court decision leaves the legislature with other options. Where the alleged defect is the unequal application of the law, the Court may choose not to annul the law as such but to leave it to the legislature to decide whether to extend the law to cover the neglected group of persons or to abolish the benefit entirely. Where the Court deems the harm caused by immediate invalidation to be too great, it may allow the legislature some time to fix the problem or the Court may decide whether to permit the law to apply in the interim. In some cases, the Court may itself “enact” some alternative transitory rule. Dieter Grimm, Human Rights and Judicial Review in Germany, in Human Rights and Judicial Review, supra note 84, at 267, 291–92.
138 Venezuela, for instance, established judicial control over administrative action through legislation; others have done so through case law development. Brewer-Carias, supra note 81, at 36. Note as well developments in the United Kingdom where parliamentary supremacy has seemingly given way to the European Union, with local UK courts giving effect to its supremacy. See, e.g., Maurice Sunkin, The Incidence and Effect of Judicial Review Procedures against Central Government in the United Kingdom, in Comparative Review, supra note 47, at 143.
139 Some domestic courts apply extremely literalist approaches, while judges on the Swiss Federal Tribunal, for instance, see their task in human rights cases as “perfecting” unwritten norms of “democratic” society. Brewer-Carias, supra note 81, at 107. Differences in approaches to judicial interpretation, combined with other aspects of domestic legal culture, lead to dramatically different results—even between systems with similar judicial structures. At one extreme may be the Supreme Court of Japan, which, from 1947 to the present, has managed to find legislation unconstitutional in only a handful of instances—despite a U.S.-inspired constitution that explicitly sanctions judicial review. Itsuo Sonobe, Human Rights and Constitutional Review in Japan, in Human Rights and Judicial Review, supra note 84, at 135, 172. The German Federal Constitutional Court, by contrast, has been extremely activist in developing constitutional norms and especially in elaborating human rights in ways that exceed the jurisprudence of most countries with judicial review. Grimm, supra note 137, at 294. See also Baar, supra note 136, at 77 (describing India’s as the “world’s most active judiciary”).
Of course, even within one legal system, changes along the continuum may occur over time or with respect to particular issues. See, e.g., Gerber, supra note 74, esp. at 126–30. The choice of interpretive options may vary with the goals of the court and the needs of die particular legal system. Dubinsky argues, for example, that the European Court’s resort to interpretive methods responds to the Community’s particular goals: namely, (1) assuring that the rule of law is observed; (2) maintaining a stable balance of power among Community institutions; and (3) providing for uniform application of Community law. Dubinsky, supra note 81, at 323.
140 Philip Bobbin begins his book, Constitutional Fate, with these words: “The central issue in the constitutional debate of the past twenty-five years has been the legitimacy of judicial review of constitutional questions by the United States Supreme Court.” Bobbitt, supra note 51, at 3.
141 Contra de Waart, supra note 19; and Reisman, Crisis, supra note 4.
142 Compare the history of Japanese judicial review despite U.S. attempts to replicate Marftury-style review. See supra note 139.
143 See supra note 139.
144 See, e.g., Gowlland-Debbas, supra note 4, at 670–73. See also the approach of the Indian Supreme Court described by B. P. Reddy & Rajeev Dhavan, The Jurisprudence of Human Rights, in Human Rights and Judicial Review, supra note 84, at 175, 184.
From a U.S. lawyer’s perspective, the ICJ might more readily choose this approach if Council decisions (or aspects of them) were seen less as “quasi-legislative” actions and more as agency decisions owed deference by virtue of agency expertise. Then die relevant comparison might not be widi Marbury v. Madison as much as with Chevron, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (federal court, when applying an ambiguous statute, must defer to any reasonable interpretation adopted by an agency administering the statute).
145 But in that case the Court may need to articulate why such distinctions are permissible and desirable. Cf. text at and notes 44–47 supra (suggesting that both advisory opinions and contentious cases may raise similar concerns). Moreover, whatever interpretive options the Court chooses to pursue need to be connected to instrumental goals appropriate to the UN system. Among possible instrumental goals, ensuring that the rule of law is observed will probably remain as important for the Court as maintaining a stable complementarity of functions among all UN organs, including the Council.
146 See the trial chamber decision in the Tadic case, supra note 59, para. 23. Deference need not mean abdication. See, e.g., Thomas M. Franck, Political Questions/Judicial Answers 107–25 (1992) (comparing U.S.-style abdication under the political question doctrine with German courts’ very different approach to foreign relations issues).
147 See supra text at and notes 36–37. Cf. Watson, supra note 4, at 39–40 (proposing “Jeffersonian” review whereby the Court’s determination would not be dispositive except with respect to the parties to the case). This approach is also suggested by Judge Lauterpacht in the Bosnia case, where he writes that it is not necessary for the Court to determine whether the arms embargo as applied to Bosnia violates jus cogens:
Instead, it would seem sufficient that the relevance here of jus cogens should be drawn to the attention of the Security Council, as it will be by the required communication to it of the Court’s Order, so that the Security Council may give due weight to it in future reconsideration of the embargo.
Order of Sept. 13, 1993 ICJ Rep. at 441, para. 104 (Lauterpacht, J., sep. op.) (Lauterpacht here seems to be anticipating the “cueing” function discussed in text at and notes 169–73 infra). Significantly, Lauterpacht is anticipating such limited effects even in the context of jus cogens, the substantive area in which, arguably, die Court has the widest license to disagree with the Council.
148 As occurred with respect to the Certain Expenses Advisory Opinion. After the ICJ approved the legality of the contested peacekeeping expenses in its Advisory Opinion, certain members reluctantly paid their share of these expenses out of respect for the Court. See 13 Whiteman, U.S. Digest §16, at 320–25. Of course, more routine referral to the Court would probably follow if the Secretary-General were granted, as has been proposed, the right to ask for an advisory opinion.
149 See generally Alec Stone, In the Shadow of the Constitutional Council: The “Juridicisation” of the Legislative Process in France, W. Eur. Pol., Apr. 1989, at 12. The controversy surrounding “abstract review” in France and Germany is hardly surprising, given the consequential effects on both the legislatures and the courts in those countries. As Stone has noted elsewhere, such review has both “judicialized” the legislators, who increasingly pursue political goals through the medium of legal discourse—citing prior constitutional decisions, constitutional text and history, and legal scholars—and “politicized” the judiciary, now more closely “meshed” in the policy-making legislative process. Stone, supra note 84. Cf. Weiler, supra note 81 (noting the absence of such fears, at least through the late 1980s, within the European Union).
150 Stone, supra note 84, at 447–48. Stone concludes that the process has made the French and German constitutional courts “powerful policymakers whose impact on legislative process and outcome is extensive and multidimensional.” Id. at 466.
151 See, e.g., Tribe, supra note 53, at 67–69.
152 As it arguably has done with respect to the Libyan and Bosnian requests for interim relief.
153 Lockerbie, 1992 ICJ Rep. at 15, para. 39, and 126, para. 42.
154 Id. at 15, para. 39, and 126, para. 42.
155 Reisman, in Colloque, supra note 4, at 407.
156 Franck, supra note 5, at 108; Franck, supra note 4.
157 Hardly a surprise, since the 11-5 decision was evidendy a compromise and did not prevent 8 of die 11 judges in the majority from separately explaining their respective rationales. See text at and notes 158–64 infra.
158 1992 ICJ Rep. at 131 (Oda, J., declaration).
159 1992 ICJ Rep. at 132–35 (Ni, J., declaration).
160 1992 ICJ Rep. at 136–37 (Evensen, Tarassov, Guillaume, & Aguilar Mawdsley, JJ., joint declaration).
161 1992 ICJ Rep. at 138 (Lachs, J., sep. op.).
162 Id. at 139.
163 1992 ICJ Rep. at 140–41 (Shahabuddeen, J., sep. op.).
164 Id. at 142.
165 1992 ICJ Rep. at 143–59 (Bedjaoui, J., dissenting).
166 1992 ICJ Rep. at 160–81 and 183–98 (Weeramantry & Ajibola, JJ., respectively, dissenting).
167 1992 ICJ Rep. at 199–217 (El-Kosheri, J., dissenting).
168 The dissenting and concurring judges seem to have gone beyond disagreeing with the “manner” in which the Council took its decisions. Cf. Reisman, in Colloque, supra note 4, at 416–17. These judges had substantive qualms about Council Resolution 748.
169 The Court’s prerogative to consider the substance of Council Resolution 748 (see note 168 supra) seems inherent in its competence to decide the scope of its jurisdiction under Article 36(6) of its Statute. See also supra note 60.
170 see Bobbitt, supra note 51, at 191–95; Watson, supra note 4, at 30, 43. The speed with which the Court disposed of these requests for interim relief may lessen fears that judicial review will invariably preclude prompt Council action. Cf. Doc. 498, III/2/19, 12 U.N.C.I.O. Docs. 65 (1945) (UK fears to this effect).
171 See Scott, supra note 1, especially at 138–39. This course may be taken under the rubric of avoiding constitutional difficulties where any other construction is possible. See, e.g., Tate, supra note 136, at 5–6. Even the trial chamber in the Tadić case, while affirming the Council’s action in establishing the Yugoslav war crimes Tribunal, arguably sent abundant “cues” to the Council as to the limits of future action. See supra text at note 59.
172 See text at note 164 supra.
173 See, e.g., Stone, supra note 84. McWhinney, supra note 4, at 270–71, argues that some of the individual opinions in the Libya case stand as a “form of legal vindication of the plaintiff’s claim” and he sees these opinions as all contributing to an “unfolding of the legal dialectic and to the making of new constitutional law.” Cf. Franck, supra note 5, at 108–09 (focusing on another type of “cue”: a warning to the Council that the Court is keeping the door open on judicial review).
174 Some see “auto-limitation” operating with respect to the humanitarian exceptions now more routinely incorporated into the Council’s sanction programs. Gowlland-Debbas, supra note 4, at 667.
175 See text at and note 50 supra.
176 Bobbitt, supra note 51, at 219 (quoting Hans A. Linde, Judges, Critics, and the Realist Tradition, 82 Yale L.J. 227, 238 (1972)).
177 Adam Roberts & Benedict Kingsbury, Introduction: The UN’s Roles in International Society since 1945, in United Nations, Divided World 1, 21 (Adam Roberts & Benedict Kingsbury eds., 2d ed. 1993). As another observer of the Council put it, the Council serves a “global community function”: galvanizing political and moral support. Murphy, supra note 9, at 208–09.
178 See, e.g., Order of Sept. 13, 1993 ICJ Rep. at 346–47, 348–49, paras. 46, 52–53, 57, 59; Order of Apr. 8, 1993 ICJ Rep. at 24, para. 52.
179 Order of Sept. 13, 1993 ICJ Rep. at 346–47, para. 46.
180 Id. at 362–63, 368 (Shahabuddeen, J., sep. op.).
181 Order of Sept. 13, 1993 ICJ Rep. at 422, para. 38 (Lauterpacht, J., sep. op.).
182 Id. at 425–31, paras. 50–67.
183 Id. at 424–25, paras. 47–48.
184 Order of Sept. 13, 1993 ICJ Rep. at 348, para. 52.
185 This might be analogous to the U.S. Supreme Court’s finding a constitutional violation because of the “expressive harms” of certain public action. See, e.g., Richard H. Pildes & Richard G. Niemi, Expressive Harms, “Bizarre Districts,” and Voting Rights: Evaluating Election-District Appearances after Shaw v. Reno, 92 Mich. L. Rev. 483 (1993).
186 Of course, this route has been taken by other constitutional courts as well. See, e.g., Bobbitt, supra note 51, at 185, 211–12 (noting, among other things, how the Supreme Court’s standards have helped change the United States as a nation).
187 White, supra note 49, at 231–74.
188 See also Croley, supra note 84, at 751 n.181.
189 White, supra note 49, at 246, 245.
190 Cf. id. at 251.
191 Id. at 262.
192 White’s elegant conception of “law” is perhaps clearest when he writes:
To conceive of the law as a rhetorical and social system, a way in which we use an inherited language to talk to each other and to maintain a community, suggests in a new way that the heart of law is what we always knew it was: the open hearing in which one point of view, one construction of language and reality, is tested against another. The multiplicity of readings that the law permits is not its weakness but its strength, for it is this that makes room for different voices and gives a purchase by which culture may be modified in response to the demands of circumstance. It is a method at once for recognizing others, for acknowledging ignorance, and for achieving cultural change.
Id. at 273.
193 Compare, e.g., the positivistic resistance to judges as law “creators” as well as law “interpreters.” See, e.g., Gennady M. Danilenko, Law-Making in the International Community 253–60 (1993).
194 White, supra note 49, at 264–65.
195 The “uniqueness” of the ICJ with respect to these issues is, as discussed supra in part II, in question. Note, too, that White’s model addresses the U.S. federal judiciary. It assumes that judges have something distinct to offer in part because, owing to life tenure, they are more removed from the political dictates of the day than other actors. These assumptions cannot be wholly applied with respect to ICJ judges who are elected for renewable nine-year terms. Cf. Croley, supra note 84, at 748–90 (noting the difficulties in finding a principled justification for elected judiciaries within the U.S. states).
196 For examples of the Court’s contribution to international institutional law, see supra note 46. For recognition of common aspects of “transjudicial communication,” see Anne-Marie Slaughter, A Typology of Transnational Communication, 29 U. Rich. L. Rev. 99 (1994).
197 Cf. Reisman, Crisis, supra note 4, at 94.
198 Cf. supra note 171 (noting canon of constitutional interpretation of avoiding constitutional issues).
199 It might be said that the Lockerbie judges wisely “tempered the mechanical arrogance of abstractions with the life blood of the concrete problem,” and that, by refusing to yield to the charm of “generalizing abstraction,” they sought to reassure observers that the Court was not being “excessively creative.” Cf. Schachter, supra note 88, at 769 (discussing international judges in general). It is also true that, given the evident splits within the Court, if there was to be a majority opinion, such an opinion would necessarily take the narrowest possible ground.
200 Its focus on Resolution 748 does not foreclose the possibility that the Court would have come to the same conclusion based on a chapter VI action by the Council. That issue did not need to be decided in this case.
201 Reisman, Crisis, supra note 4, at 92.
203 Id. at 94.
204 17 U.S. (4 Wheat.) 316 (1819).
205 Cf. White, supra note 49, at 247–68.
206 Certainly, Stone’s account of the role of French judges and Ramseyer’s account of the role of Japanese judges place considerable emphasis on the political backgrounds of French judges and the career expectations of Japanese judges, respectively. See, e.g., Alec Stone, The Birth of Judicial Politics in France 8 (1992) (noting the political backgrounds of the majority of judges on the French Constitutional Council, as well as the political nature of their appointment); J. Mark Ramseyer, The Puzzling (In)Dependence of Courts: A Comparative Approach, 23 J. Legal Stud. 721 (1994) (arguing that until recendy one-party rule in Japan “controlled” judges through job assignments).
207 David W. Kennedy, A New World Order: Yesterday, Today, and Tomorrow, 4 Transnatl L. & Contemp. Probs. 329, 332–36 (1994).
208 Id. at 335.
209 Id. See also Shirley V. Scott, International Law as Ideology: Theorizing the Relationship between International Law and International Politics, 5 Eur. J. Intl L. 313 (1994).
210 Oscar Schachter, The Invisible College of International Lawyers, 72 Nw. U. L. Rev. 217 (1977).
211 See 46 Int’l Org. 1, passim (1992) (issue devoted to studies of various international “epistemic communities,” usually defined as groups of people sharing technical or other expertise and a particular value orientation).
212 As Judge Lauterpacht asked in the Bosnia case, does anyone really believe that the Court would or should affirm the legality of a Council decision that, for example, would compel states to be accomplices to genocide? Order of Sept. 13, 1993 ICJ Rep. at 440, para. 100 (Lauterpacht, J., sep. op.).
213 See, e.g., Admission of a State to the United Nations (Charter, Art. 4), 1948 ICJ Rep. 57, 64 (Advisory Opinion of May 28) (asserting that UN political organs must still adhere to the Charter). See also Bedjaoui, supra note 75, at 19 (noting that it is not acceptable that “sovereign states should have created an international organization equipped with broad powers of control” but that is itself exempted “from the duty to respect both the Charter which gave it birth and international law”); Bedjaoui, supra note 4, at 32–36 (to same effect); Brewer-Carias, supra note 81, at 81 (arguing that two fundamental objectives of judicial review under the “état de droit” are “to ensure that all those acts of the state are adopted or issued in accordance with the law” and “to ensure that state acts respect the fundamental rights and liberties of citizens”); and Beatty, supra note 84, at 89 (arguing the importance of structural checks and balances over a bill of rights).
214 Moreover, to the extent absolute deference to the Council demands that ICJ judges cease deploying what Anne-Marie Slaughter has identified as a “common judicial identity and methodology”—including common methods of legal reasoning and belief in the solemnity of precedent—such deference would demand that ICJ judges cease being judges. See generally Slaughter, supra note 196, at 125–26.
215 See, e.g., Reisman, Crisis, supra note 4. See also Edward Gordon, Legal Disputes under Article 36(2) of the Statute, in The International Court of Justice at a Crossroads, supra note 29, at 183, 202 (arguing that while in principle the World Court is as free as the Supreme Court to undertake certain creative solutions not expressed in the Charter, “it lacks the justification for doing so that derives from the checks and balances written into the structure of government that the Constitution—but not die Charter or Statute—creates”); Gill, comments, 1993 Joint Conference, supra note 4, at 283–86 (denying that the Charter creates a “federal structure”).
216 See Anne-Marie Slaughter Burley, International Law and International Relations Theory: A Dual Agenda, 87 AJIL 205, 234 (1993); Anne-Marie Slaughter, International Law in a World of Liberal States, 6 Eur. J. Int’l L. (forthcoming) (copy on file with author) [hereinafter Liberal States]. As Mohammed Bedjaoui has put it: “essentially built upon liberal concepts, the Charter of the United Nations was from the outset unable to blend the underlying philosophies of different world perceptions into a synthesis or leave any place for other philosophies alongside that of liberalism.” Bedjaoui, supra note 75, at 13.
217 Murphy, supra note 9, at 284. See also Slaughter, Liberal States, supra note 216.
218 See, e.g., Stone, supra note 149, at 29–30; Stone, supra note 206, at 225–53.
219 Tate, supra note 136, at 8.
220 See, e.g., Stone, supra note 149, at 29.
221 Cf. id. at 13. If both Council and Court become engaged in the same tasks, it may become increasingly difficult to maintain that the World Court is “primarily legal,” while the Council is “primarily political.” Cf. Harper, supra note 3.
222 See, e.g., Stone, supra note 84, at 460–61.
223 See, e.g., Gordon, supra note 215, at 185–87 (analyzing the Court’s “political” nature).
224 See, e.g., Watson, supra note 4, at 30–33; Roberts, supra note 4, at 314.
225 Nor would the Council be helpless before a prospective Court challenge. Council members, should they anticipate an adverse opinion relating to the Council’s decisions, can distance themselves from an ongoing case by, for example, not filing memorials before the Court or otherwise participating in the proceedings, the better to contend that the arguments on behalf of the Council’s actions were simply not presented to the Court.
226 See, e.g., Stone, supra note 84, at 447 (noting particular substantive areas of the law in both France and Germany in which “judicialization” has had more profound effects than in others).
227 Some members that might otherwise be encouraged to oppose or defy Council decisions may turn to judicialization of the process instead. See generally Stone, supra note 84, at 447 (“[o] ppositions judicialize legislative processes to win what they would otherwise lose in normal political processes.”).
228 For attempts by one court to exercise judicial review even under martial law, see C. Neal Tate, Temerity and Timidity in the Exercise of Judicial Review in the Philippine Supreme Court, in Comparative Review, supra note 47, at 107.
229 Cf., e.g., Goler T. Butcher, The Consonance of U.S. Positions with the International Court’s Advisory Opinions, in The International Court of Justice at a Crossroads, supra note 29, at 423.
230 See part IV supra.
231 For a general approach to organizational “learning,” see Ernst Haas, When Knowledge Is Power: Three Models of Change in International Organizations (1990).
232 Mary L. Volcansek, Judicial Review and Public Policy in Italy: American Roots and the Italian Hybrid, in Comparative Review, supra note 47, at 89, 99.
233 In some cases, judicial review has arisen or been strengthened because of perceived abuses by state authorities. See, e.g., Cappelletti, supra note 64, at 681. For arguments premised on the need for an evolving United Nations, see Scott, supra note 1, at 97–98.
234 As Richard Falk has noted, it is a “mistake to assume an inherent conflict between geopolitics and respect for international law.” Richard A. Falk, The United Nations and the Rule of Law, 4 Transnatl L. & Contemp. Probs. 611, 619 (1994). For a more general critique of realist assumptions, see Slaughter, Liberal States, supra note 216.
235 Blokker & Muller, supra note 70, at 280–81.
236 For recent surveys of the Court’s attempts at “review,” see, e.g., Bedjaoui, supra note 4, at 15–29; Roberts, supra note 4, at 293–312.
237 Cf. Bobbitt, supra note 51, at 217–19 (discussing the U.S. Supreme Court’s expressive function in the Nixon Tapes case).
* This article is based on a presentation given at the American Society of International Law’s Annual Meeting on April 5, 1995. The author thanks Susan Damplo, Gerry J. Simpson, Anne-Marie Slaughter, Eric Stein, Howard Meyer, Richard Pildes, Phillip Trimble, Edward Martin Wise, and anonymous reviewers from the Journal’s Board of Editors for their helpful suggestions.
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