Who Has the Final Say in International Law? An Examination of Judicial Review and UNSC Supremacy
The Peace Palace at Night (The Hague, The Netherlands)
By: Jessica Betancourt; Staff Editor
Though the International Court of Justice is often viewed as the world’s court of last resort, it remains unclear whether it enjoys judicial supremacy in the face of the UN Security Council. Article 103 of the UN charter and case law including Kadi v. Council and Commission and Lockerbie exemplify the tension between the UN Security Council and judicial bodies, leaving open the question: who is the ultimate authority?
Introduction
In the past several decades, the world has seen robust evolution in the governing systems of international law. The development of the United Nations (“UN”) and its Charter have by no means eradicated global conflict, nor has the development of human rights commissions managed to perfectly prevent abuses, but overall, modern treaties, judicial bodies, and regional committees allow States and individuals to seek redress for internationally wrongful acts. The question is: who has the final say in international law?
The ICJ’s Judicial Authority
At first glance, the International Court of Justice (“ICJ”) may appear as the most favorable, if not the only contender. Born out of article 96 of the UN Charter and functioning as the UN’s principal judicial organ from its seat in the Hague, the ICJ hears contentious State disputes and releases advisory opinions as stipulated in articles 36 and 65 of its statute, respectively. However, unlike domestic courts, the ICJ’s contentious jurisdiction is predicated on the consent of states, adding additional barriers to the court’s ability to hear claims involving absent or non-consenting parties, particularly if that state’s legal interests are at the very subject matter of the claim being adjudicated (see the Monetary Gold Principle). This consent may take the shape of a formal request for adjudication, or through a treaty’s jurisdictional clause. Notably, the ICJ’s advisory jurisdiction does not face this barrier (for instance, in the case concerning the construction of a Wall in Palestine the court did not require Israel’s consent). While advisory opinions are not binding on implicated parties, they are still a source of persuasive authority.
Tension with the United Nations
Though the ICJ is a by-product of the UN, the two function independently, with the latter having its own independent and internal review body for disputes between individual members since the Convention on the Privileges and Immunities of the UN affects the ability to bring these disputes to domestic courts. Internal rifts aside, obligations imposed by the supremacy clause in Article 103 0f the UN Charter complexify the judicial authority of international courts, including the ICJ. Left open is the question—can the ICJ review UN decisions, particularly, resolutions made by the UN Security Council (“UNSC”)? The Lockerbie case before the ICJ is most famous for raising this issue. After the UNSC put forth a resolution urging Libya to respond to U.S. and U.K. demands to turn over suspects alleged to be involved with the bombing over Lockerbie, Scotland, Libya brought suit before the ICJ against both states under the Montreal Convention. While the case was pending, the Security Council put forth a mandatory Chapter VII resolution, now invoking its authority through the imposition of sanctions. Following this mandate, the ICJ rejected Libya’s request for provisional relief based on the prima facie legitimacy of the rights and powers enjoyed by the Security Council, even in the face of the Montreal Convention. The parties ultimately withdrew the case, but it remains illustrative of the tension between these two international bodies.
What About Other Courts?
The European Court of Justice (ECJ) is another body ripe for analysis in the tension between formal courts of adjudication and the UNSC. In the wake of a UNSCR mandate sanctioning several suspected Al Qaeda and Taliban affiliates, Saudi Arabian national, Yassin Kadi, successfully brought suit against the EU challenging the freezing of his assets. Now known as Kadi I and Kadi II, the court ultimately found that there had been an infringement of Mr. Kadi’s fundamental constitutional rights, and marked the first instance of the ECJ annulling a UN mandate. This case remains well known today, and stands as an illustration of international adjudicatory bodies asserting the right of judicial review over UNSC Resolutions, and in effect, challenging article 103 of the UN Charter.
Conclusion
What this means for the ICJ is unclear—whether it decides to assert its right to judicial review as did the U.S. Supreme Court in Marbury v. Madison, or issue an advisory opinion directly challenging or supporting UNSC supremacy next time it is open to active debate is yet to be determined. In the interim, we can at least enjoy some poetry to appreciate the significance of this complex issue:
While wandering through a wadi
in the wastes of Saudi
I came across Mr Kadi
cracking rather hardy.
I said ‘you must feel blue
at what they’ve done to you’;
he said to me ‘that’s true,
but I’ve got the CJEU,
lacking whose authority
the P5 sorority
are now a small minority,
who’ve lost their old priority.’
And so went Mr Kadi
wandering down his wadi:
‘it’s all because of me;
I killed Article 103!’
-James Crawford (2013)
Jessica A. Betancourt is a second-year J.D./LL.M. student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She graduated from Macaulay Honors College at Brooklyn College in 2022. She is a competitor in the Philip C. Jessup International Moot Court.