By: Manan Mehta, SVKM’s Pravin Gandhi College of Law

Edited by The Editorial Board of SAIL.

International Court of Justice (ICJ), is the principal judicial organ of the United Nations (UN). The idea for the creation of an international court to arbitrate international disputes first arose during the various conferences that produced the Hague Conventions in the late 19th and early 20th centuries. The body subsequently established, the Permanent Court of Arbitration, was the precursor of the Permanent Court of International Justice (PCIJ), which was established by the League of Nations. . After the end of World War II The ICJ was established in 1945 by the San Francisco Conference, which also created the UN. 

The UN Charter envisioned a symbiotic relationship between the United Nations Security Council, which is the enforcement organ of the UN;and the International Court of Justice (ICJ), the principal judicial organ of the UN.  In its latest research report on the rule of law of 20 December 2016, The Security Council Report examines the relationship between the Security Council and the ICJ, including options for enhancing that relationship to assist the Council in its work.The Statute of the Court is annexed to the Charter itself, meaning that all UN member states are automatically parties to the Statute. The ICJ is mandated to settle contentious legal disputes submitted by states against other states in accordance with international law. Judgments given in contentious cases between states are binding on the parties. The Court also gives advisory opinions to the Council, the General Assembly and other authorised bodies on legal questions referred to it by these entities 

One of the tools available to the Council to peacefully settle international disputes affecting international peace and security is to make use of the ICJ’s jurisdiction in such cases (Article 36of the UN Charter) or to ask it to provide advisory opinions on legal questions that arise in the Council’s work (Article 96 (1)). At the same time, the Charter also gives the Council responsibility for addressing instances of non-compliance by states with the Court’s judgments brought before the Council (Article 94 (2)). In addition, the Council—jointly with the General Assembly—elects the judges of the ICJ, and the President of the ICJ briefs the Council in a private meeting annually.

Understanding the workings of the UN:

Under Chapter 6(Peaceful Settlement) of the UN Charter;

This section deals with the practice of the Security Council aimed at promoting and implementing recommendations and methods or procedures for the peaceful settlement of disputes within the framework of Articles 33-38 of Chapter VI and Articles 11 and 99 of the Charter of the United Nations. Overall, Chapter VI of the Charter contains various provisions according to which the Security Council may make recommendations to the parties to a dispute or situation. On which further member nations assess and shall take action. Once this part of the process is complete the next chapter comes into play per se.

Chapter 7 of the UN Charter: Application of Force, UNSC

• Chapter VII of the Charter of the United Nations provides the framework within which the Security Council may take enforcement action. It allows the Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” and to make recommendations or to resort to non-military and military action to “maintain or restore international peace and security”. The Repertoire covers implicit references and explicit references to Chapter VII and Articles 39 to 51 of the Charter in documents of the Security Council, as well as case studies on instances where the Council discussed respective Articles of Chapter VII in consideration of specific situations on its agenda.

These two chapters lay the basis for the actions that are to be taken by members of the UN. This does explicitly lay out the due diligence(black’s law) that is undertaken by the members before a step is to be taken by the International community under the banner of the UN. In a way, this restricts unilateral action which although would purport national interest, but be contrary to the objective of Chapter VI. The question  is whether the ICJ can question and adjudicate upon the resolutions passed by the UN. Addressing this question, the aforementioned chapter VII, it in itself holds the nature of legal bindingness arguably translating itself into enforceability.  This, however, is not the case with  several resolutions of the General Assembly which would make it difficult for the ICJ to question or review the same as the resolution itself is not enforceable as such. Nevertheless, resolutions passed in the UNSC under Chapter VII are legally binding which makes the resolution a legal document, one may then question whether the ICJ have a mandate to review it? 

The Lockerbie Case:

The Crus of the Lockerbie case involves the question of UNSC sanctions against the dictator driven nation of Libya. On December 21, 1988  a bomb exploded in the cargo hold of Pan Am Flight 103 resulting in the death of 259 passengers and the crew. This bombing affected the people on ground in Lockerbie,(state)costing the lives of 11 residents.

After years of negotiations and diplomatic manoeuvring, in April 1999, Libya surrendered the two Libyan officials accused of the bombing (Abdelbasset Ali Ahmed Al-Megrahi and Ali Amin Khalifa Fhimah) for trial in the Hague before the ICJ before a panel of Scottish judges at a former U.S. military base known as Camp Zeist. The trial was set to begin on May 3, 2000. It is scheduled to last a year, with as many as 1,000 witnesses testifying.

The United States claimed that the conditions of Article 14 of the 1972 Convention for the suppression of unlawful acts against the safety of Civil Aviation ( Montreal Convention)  had not been complied with by Libya, primarily since no legal dispute existed between the parties, in any event not one concerning the interpretation or application of the Montreal Convention. In United States’ view, the Montreal Convention was not relevant here because, instead of arising out of bilateral differences, the case was one of a threat to international peace and security resulting from State-Sponsored terrorism. Libya, on the other hand, maintained that the Montreal Convention was the only instrument applicable to the PanAm disaster and that the United States was attempting to prevent its application.

The Court considered that Libya had complied with Article 14 of the Montreal Convention and that its claim was positively opposed by the US claim. In the Court’s view, a dispute exists between the parties as to whether the destruction of the Pan Am aircraft is governed by the Montreal Convention, which is for the Court to decide. Apart from this general dispute, the Court also found that specific disputes exist concerning certain provisions of the Montreal Convention relating to the place of prosecution (Article 7) and to assistance in connection with criminal proceedings (Article 11). The Court found that it can decide, on the basis of Article 14 of the Montreal Convention, on the lawfulness of the US actions criticized by Libya, insofar as those actions violate the Convention.

The United States claimed also that, even if the Montreal Convention did confer on Libya the rights it claims, those rights could not be exercised because they were superseded by Security Council resolutions 748(1992) and 883(1993) which, by virtue of the UN Charter, have significance over all rights and obligations arising out of the Montreal Convention. In any event, the adoption of those resolutions implied that the only dispute which might exist is the one between Libya and the Security Council as a whole, falling outside the ambit of Article 14(1) of the Montreal Convention. However, the Court pointed out that both resolutions were adopted after the date on which Libya filed its Application. On that date, which alone was held to be relevant, the Court had jurisdiction.

This record of the Lockerbie case, clearly suggests that the Court to assert its jurisdiction over the case had to specify the failure of compilation and the application dates, if those were found to be different then one may question its jurisdiction over the said case. The specification of the court having only an advisory jurisdiction over the legal questions pertaining to UN organs makes their right to review resolutions a lacuna. A review when done without the request of a UN organ would technically be out of their jurisdiction as advice is given when it is asked for per se.

The Namibia Case:

On 27 October 1966, the General Assembly decided that the Mandate for South West Africa was terminated and that South Africa had no other right to administer the territory of Namibia. In 1969 the Security Council called upon South Africa to withdraw its administration from the Territory, and on 30 January 1970 it declared that the continued presence of the South African authorities in Namibia was unlawful and that all acts taken by the South African Government on behalf of or concerning Namibia after the termination of the Mandate were invalid. It further called upon all States to refrain from any dealings with the South African Government that were incompatible with that declaration.

On 29 July 1970, the Security Council decided to request the Court an advisory opinion on the legal consequences for States of the continued presence of South Africa in Namibia. In its Advisory Opinion of 21 June 1971 .The Court found that the continued presence of South Africa in Namibia was illegal and that South Africa was under an obligation to withdraw its administration immediately. It found that  member States of the United Nations were under an obligation to recognize the illegality of South Africa’s presence in Namibia and the invalidity of its acts on behalf of or concerning Namibia, and to refrain from any acts implying recognition of the legality of, or lending support or assistance to, such presence and administration. Finally, it stated that it was incumbent upon States which were not Members of the United Nations to give assistance in the action which had been taken by the United Nations with regard to Namibia.

This case further dwells into  the working relation between the UNSC and the ICJ which explicitly lays out that the jurisdiction starts and ends with the asking for advice and ends after giving the same. Therefore an involuntary review of the resolutions passed by the UN would be out of their jurisdiction ex facie.

Conclusion:

Lockerbie was the first test case regarding the rule of law in the international legal order of the United Nations. For the first time, the authority of the Security Council under Chapter VII of the Charter had been challenged in the International Court of Justice. Consequently, the question of the nature and extent of the Council’s powers under Chapter VII of the Charter has imbibed a new significance. Unlike any previous case, the Lockerbie case serves as a paradigm for the conflict between law and politics in international relations.

At the outset, is the question  whether the United Nations  system should be considered primarily as a political mechanism, or rather as an organisation of law governed by binding rules and procedures. The International Court of Justice has approached this question with considerable caution. Both in its orders of 1992 and its 1998 judgment, it has responded only to those questions whose settlement was strictly necessary at the corresponding stage of the proceedings. However, between the lines of the 1998 judgments, a newly gained confidence on the part of the Court may be discerned. By affirming its jurisdiction over the disputes, the Court has resisted all attempts to remove Chapter VII of the Charter from the ambit of legal interpretation. From this perspective, the Court’s judgments of February 1998 constitute a small, but nonetheless important step forward.

Notes and References

1. Home | International Court of Justice : https://www.icj-cij.org/en, 1-10-2020

2. Pacific Settlement of Disputes (Chapter VI of UN Charter) |

:https://www.un.org/securitycouncil/content/pacific-settlement-disputes-chapter-vi-un-charter, 1-10-2020

3. FAQs | United Nations Security Council:

 https://www.un.org/securitycouncil/content/repertoire/search-options-and-faq, 2-10-2020

4. A Preview of the Lockerbie Case | ASIL:

 https://www.asil.org/insights/volume/5/issue/5/preview-lockerbie-case, 3-10-2020

5. https://treaties.un.org/doc/Publication/UNTS/Volume%20974/volume-974-I-14118-Engli sh.pdf, 3-10-2020
6. Jurisdiction | International Court of Justice: https://www.icj-cij.org/en/jurisdiction, 3-10-2020

Latest developments | Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) : https://www.icj-cij.org/en/case/53, 5-10-2020