Who will Guard the Guardian of the International Peace and Scecurity? Judicial Review of Chapter VII Resolutions

• Author: Nayantha Wijesundara
• Position: Attorney at Law, Sri Lanka
• Pages: 373-434

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2016 e Institute for Migrant Rights Press

Who Will Guard thE Guardian of

intErnational PEaCE and sECurity?

JudiCial rEviEW of ChaPtEr vii rEsolutions

Nayantha Wijesundara

Attorney at Law, Sri Lanka

E-mail: nayanthawijesundara@gmail.com

is paper examines the issue of judicial review of resolutions/decisions of the

Security Council of the United Nations (S.C.) adopted under chapter VII of the

Charter of the United Nations (U.N. Charter/the Charter). Its main objectives

are to examine the evolution of powers of the S.C. over the years, evaluate the

possibility of and necessity for judicial review and to determine, what existent

international judicial institution is best suited for the task of reviewing chapter

VII decisions of the S.C. e main issue attempted to be addressed in this paper

is that given the complex nature of the responsibilities of the S.C. in terms of

international peace and security which has on a number of occasions given rise

to issues of legality, is there no judicial body which is able to review chapter VII

resolutions? In other words, who will guard the guardian of international peace

and security? e paper argues that there is no judicial body that is "explicitly"

entrusted with the task of reviewing chapter VII decisions of the S.C., although

on occasion regional courts, ad hoc tribunals and the International Court of

Justice (I.C.J.) have implicitly reviewed S.C. resolutions. However, the level of

review seen thus far by these institutions in an ad hoc manner is insucient

and the lack of an adequate mechanism to review chapter VII resolutions of the

S.C. poses a challenge to the international rule of law, whilst also aecting the

legitimacy of the action of the S.C. e paper concludes that a possible solution

to this situation is to recognize and provide the I.C.J. with a more pronounced

role in terms of judicial review of chapter VII decisions.

Keywords: international institutional reform, global governance, international

rule of law, international law on the use of force.

III Indonesian Journal of International & Comparative Law 373-434 (July 2016)

374

Wijesundara

I. INTRODUCTION

is paper examines the issue of judicial review of resolutions/deci-

sions of the Security Council of the United Nations (S.C.) adopted un-

der chapter VII of the Charter of the United Nations (hereinaer U.N.

Charter or the Charter). e objectives of this paper are to examine the

evolution of powers of the S.C. over the years, evaluate the possibility

of and necessity for judicial review and to determine, what existent in-

ternational judicial institution is best suited for the task of reviewing

chapter VII decisions of the S.C. e main issue grappled with in this

paper is: in light of the complex nature of the responsibilities of the S.C.

in terms of international peace and security which has on a number

of occasions given rise to issues of legality, is there no judicial body

which is able to review chapter VII resolutions? In other words, who

will guard the guardian of international peace and security?

e examination of this question is posited on the following

hypothesis: there is no judicial body that is explicitly entrusted with

the task of reviewing chapter VII decisions of the S.C., although on

occasion regional courts, ad hoc tribunals and the International Court

of Justice (I.C.J.) have implicitly reviewed S.C. resolutions. However,

the level of review seen thus far is insucient and the lack of an

adequate mechanism to review chapter VII resolutions of the S.C. poses

a challenge to the international rule of law, whilst also aecting the

legitimacy of the action of the S.C. A possible solution to this situation

is to recognize and provide the I.C.J. with a more pronounced role in

terms of judicial review of chapter VII decisions.

Section II of this paper discusses the evolution of chapter VII

powers and it shows that the S.C. wields a large amount of power in

terms of collective security, which, in the absence of sucient checks,

could pose a threat to the international rule of law. e discussion

in section III is a succinct analysis of several relevant factors which

examine whether it is possible to have judicial review of chapter VII

decisions, based on the historical, legal and structural framework

of the United Nations (U.N.) system. is section also considers the

growing inuence of constitutionalism and global administrative law

in the sphere of international institutions as a factor which encourages

judicial review. Section IV considers whether there is a necessity to

375

Who will Guard the Guardianof International Peace and Security: Judicial Review of Chapter VII Resolutions

Wijesundara

review chapter VII decisions based on the legal limitations of the S.C.

and how on a number of occasions it has acted beyond these limits.

e conclusion drawn from sections III and IV is that judicial review of

S.C. decisions under chapter VII is both possible and necessary.

Sections V and VI embark on a study of international and regional

judicial institutions that have engaged in some form of review of chapter

VII decisions. Section V considers the ad hoc criminal tribunals,

the Court of Justice of the European Union (E.C.J.), the Oce of the

Ombudsperson of the Security Council’s 1267 Committee, and the

International Criminal Court (I.C.C.). It concludes that none of these

institutions are adequate mechanisms to satisfy the need for review

of chapter VII decisions. Meanwhile, section VI engages with the

jurisprudence of the I.C.J. on the issue of judicial review of chapter VII

decisions. ree conclusions are drawn from this section. Firstly, the

I.C.J. has undertaken an implicit form of review in a rather deferential

manner. Secondly, that implicit and deferential level of review is

inadequate. irdly, that it is possible and necessary to improve the

situation by facilitating a more pronounced role for the I.C.J. to review

proposed chapter VII decisions. e concluding section observes that

the time may have come when judicial review is necessary to maintain

the legitimacy of the U.N. collective security system under chapter VII.

II. EVOLUTION OF POWERS OF THE

SECURITY COUNCIL UNDER CHAPTER

VII

e S.C. is the most powerful organ of the U.N. and by virtue of chapter

VII it enjoys more power than any other international body in history.

e o-cited reason for this is the experience of the League of Nations,

which was unable to act eectively in crises.1 e S.C. was largely dor-

mant during the Cold-War due to power politics of the superpowers,

although it has sprung to life since the 1990s.2

1. 2 T C   U N: A C 1239 (Bruno Sim-

ma, Daniel-Erasmus Khan, Georg Nolte & Andreas Paulus eds, 3rd ed. 2012).

2. Simma et al eds., supra note 1. at 1241; Georey R. Watson, Constitutionalism,

Judicial Review, and the World Court, 34 H. I' L. J. 1 (1993); David Bos-