The Review Function of Legality in Contentious and Advisory Proceedings of the International Court of Justice

2007 Fiscal Year Final Research Report Summary

• Project/Area Number: 17530036
• Research Category: Grant-in-Aid for Scientific Research (C)
• Allocation Type: Single-year Grants
• Section: 一般
• Research Field: International law
• Research Institution: Kinki University
• Principal Investigator: SUGIHARA Takane Kinki University, Law school, Professor (30004154)
• Project Period (FY): 2005 – 2007
• Keywords: International Court of Justice / United Nations / Security Council / judicial review / legality of UN decisions / advisory opinion / Lockerbie case / 人道的干渉

Research Abstract

The present research has dealt with review function of the International Court of Justice on legality of decision taken by United Nations organs or its member States. The mode of review functions of the Court can be divided into the following three types. (1) The review function of legality on decisions made by UN organs (the Security Council and other organs) in contentious proceedings. (2) The review function with regard to State actions in contentious cases. (3) The review function of legality on States action or on decisions of international organizations in advisory opinion proceedings.
The first type of function had actually appeared in the Lockerbie case (Libya v. U.K) which was brought before the Court in 1992. In this case, Libya contested the validity of Security Council resolution 748 which was adopted to impose certain measures of coercion upon Libya. Libya asserted that the resolution could not have any legal effect and hence not opposable to Libya, because it was adopted i n contradiction with provisions of the UN Charter. However, there is a deep division of opinion as to whether the Court can, under the Charter system, legally exercise judicial review power with regard to Security Council decisions. The second type of review function is seen in ordinary contentious cases between States. However, the Cases concerning Legality of Use of Force brought before the Court by Yugoslavia against ten NATO member States separately had a somewhat extraordinary aspect in legal context, in that they involved on issue of legitimacy of doctrine of so-called humanitarian intervention, validity of which has been controverted in international law for centuries. In these cases, lawfulness of military actions by NATO States depended solely upon the validity of the controvential doctrine. Under the UN Charter principles including the prohibition on the use of force, legitimacy of the doctrine is of doubious legality as was pointed out by the report of UK Parliament Committee (2000). But, due to lack jurisdiction to entertain the Yugoslav claims, the Court closed its bench with regard to these cases without expressing any legal status of humanitarian intervention. As to the third type of review function, researches in the present project have not completed at this moment.