Global Policy Forum

The "Powers of Appreciation": Who is the Ultimate Guardian of UN Legality?


By Thomas M. Franck

American Journal of International Law
July 1992

The International Court of Justice's recent decisions in the case concerning interim measures brought by Libya against the United States [FN1] and the United Kingdom [FN2] may be the most important and jurisprudentially rich of any handed down by this Court since the end of the Cold War. As such, the cases and their several opinions merit close scrutiny. American international lawyers may even be reminded of their own Supreme Court in the days of John Marshall, or Holmes and Brandeis.

The comparison to Marshall's Court, moreover, leads the reader directly to the heart of Libya's request for interim relief, which bears more than a passing resemblance to Marbury v. Madison. [FN3] True, this phase of the Libyan proceedings did not require the judges to institute a full-scale weighing of all the parties' arguments. Nevertheless, they did have to make preliminary decisions about a number of prickly issues, the most important of these being whether the Court could review the legality of a Security Council decision. That is where the resemblance appears.

In Marbury v. Madison, the U.S. Supreme Court, while upholding the legality of a disputed act of a political branch of government, gave itself the ultimate power to determine whether the political branch, in any particular instance, has acted constitutionally. The judicial "politics" of Marbury were simple but brilliant: let President Jefferson win by agreeing that his executive discretion to issue or withhold commissions was constitutionally unlimited, but also stake out the general power of the Court to determine, by its ultimate role as constitutional umpire, the boundaries within which that unfettered political discretion could be exercised. President Jefferson is said to have resented the "temerity" of Chief Justice Marshall "in passing on the merits of a case in which, by its own admission, it had no jurisdiction." [FN4]

As in Marbury, so in the judges' Libyan opinions, more was said than was absolutely necessary to deny the Libyan request for provisional measures, a point subtly made by Acting President Oda in his separate concurring declaration. [FN5] As in Marbury, these additional indications of judicial thinking focus on the potential for, and the limits of, judicial review over the political organs. Also as in Marbury, these are likely to be the parts of the decision for which the case is best remembered.

*520 The similarities of the Libyan case to Marbury extend beyond judicial tactics. Both raise the specter of political actors exercising powers mala fide and ultra vires and what courts are to do about them. The multilateral treaty popularly called "the UN Charter" in important ways resembles the Constitution of the United States, insofar as it establishes a system for the exercise of designated powers by the two political organs of the United Nations: the General Assembly and the Security Council. Being a treaty that delegates enumerated powers, the Charter, somewhat like the U.S. Constitution, implicitly also limits the powers of the political organs to which the delegation is made. In the Libyan case, the applicant asked the ICJ to find that there was reason to believe that the Security Council might have exceeded its Charter-delegated powers by imposing sanctions. May, and should, the International Court of Justice, the United Nations' "principal judicial organ," [FN6] follow the practice of the U.S. Supreme Court in arrogating to itself the power to determine whether a political organ has acted ultra vires? May, and should, it become the supreme organ of judicial review, the system's "umpire," assuming a role comparable to that of the U.S. Supreme Court or, for that matter, of the Constitutional Court of Germany or the Supreme Court of Canada or India?

What makes the comparison to Marbury v. Madison and the U.S. constitutional canon more relevant to the ICJ than the practice in countries like India and Germany, where judicial review is founded on expressed constitutional text, is that the U.S. Constitution, like the UN Charter, leaves unspecified this umpiring role of the courts. While the Charter declares that the Court "shall be the principal judicial organ of the United Nations" [FN7] and that each member of the Organization "undertakes to comply with the decision[s] ... to which it is a party," [FN8] it "is also significant," as Professor Rosalyn Higgins has pointed out, "that at the San Francisco Conference the proposal to confer the point of preliminary determination [of each organ's competence] upon the International Court of Justice was rejected. The view was preferred that each organ would interpret its own competence." [FN9] Thus, the Court found itself, Marbury v. Madison-like, having to construe its own role when asked "to enjoin the United States from taking any action against Libya calculated to coerce or to compel Libya to surrender the accused individuals to any jurisdiction outside of Libya." [FN10]

The Libyan case was based on the asserted illegality of U.S. (and UK) actions in demanding, inter alia, the extradition of Libyan citizens to stand trial in the United States or the United Kingdom. The Council had first decided that the Libyan Government must surrender its two nationals accused of the Lockerbie bombing; then, after the Court's oral argument but before its decision, it imposed universal mandatory commercial and diplomatic sanctions to secure compliance. [FN11] In effect, Libya's request for interim relief invited the Court to decide that these Security Council resolutions might be ultra vires and thus sanctions would impose irreparable injuries. In particular, Libya argued that, by its resolutions, "the Security Council infringes, or threatens to infringe, the enjoyment and the exercise of the rights conferred on Libya by the Montreal Convention and its economic, commercial and diplomatic rights." [FN12]

Article 5(2) of the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 1971, to which over 140 nations including Libya and the United States are parties, requires each state party either to take jurisdiction over persons present in its territory who are alleged to have committed acts of terrorism against a civil aircraft, or to extradite them to a state which has, and is willing to exercise, such jurisdiction. [FN13] Libya asserted that it had already taken the steps necessary for "complying in full with that Convention," [FN14] having "submitted the case to its competent authorities for the purpose of prosecution." [FN15] Relying on those assertions, Libya asked the Court to conclude that the Security Council's resolutions are "contrary to international law" and that "the Council has employed its power to characterize the situation for purposes of Chapter VII simply as a pretext to avoid applying the Montreal Convention." [FN16]

The Libyan Application essentially left the Court with three jurisprudential choices. It could have held that the sanctions ordered by Resolution 748 should be suspended until such time as the Court ascertained, at the merits stage, that Libya's claim was groundless. Or it could have decided that, since no sufficient case of mala fides or ultra vires had been established by Libya at this preliminary stage, there were no grounds upon which the Court could order such interim relief. Or, third, the Court could have held that no relief would be forthcoming at any stage of the proceedings if granting that relief would require the Court to make a finding that a chapter VII decision of the Security Council exceeded its lawful authority. It will be evident that the first two of these three options assume an implicit right of judicial review, albeit leading to opposite results, while the third assumes judicial restraint or abdication.

What did the Court's majority choose to do? It appears to have elected, if rather softly, the second option. The very brief majority opinion appears to turn on a finding that "both Libya and the United States, as Members of the United Nations, are obliged to accept and carry out the decisions of the Security Council in accordance with Article 25 of the Charter," including the obligations imposed by Security Council Resolution 748. [FN17] It concludes, further, that "the obligations of the Parties in that respect prevail over their obligations under any other international agreement, including the Montreal Convention." [FN18] This conclusion the majority reaches by an interpretation of the effect of Charter Article 103. [FN19]

Most significant, however, as also in Marbury v. Madison, is what the Court left unsaid. As in Marbury, the Court superficially appears to accede to the broad discretionary power of the system's political "branch." But, as in Marbury, it accedes not by refusing to decide, but by exercising its power of decision. The Security Council's action in imposing sanctions is adjudged intra vires precisely because the majority of judges seems to agree that, for purposes of interim measures, Article 103 of the Charter "trumps" any rights Libya might have under the Montreal Convention, and thus frees the Security Council to apply sanctions as a suitable remedy in exercise of its powers under chapter VII. On the other hand, had Libya been able to allege a more general ground of ultra vires-that a coercive demand for extradition of a state's own national "could be deemed contrary ... to protection of sovereign rights under general international law"-then, in the words of Acting President Oda, that "would have instituted a totally different litigation, and whether or not the Court has jurisdiction to deal with that issue is certainly a different matter." [FN20] It is interesting to speculate what might have happened had Libya been a party to the Court's mandatory jurisdiction under Article 36(2) of its Statute and had it brought its action "under general international law" against Britain, as another party to 36(2), rather than under the Montreal Convention.

As it is, the interim measures decision represents a delicate balancing. As Judge Lachs noted in his separate opinion confirming the majority's result: "While the Court has the vocation of applying international law as a universal law, operating both within and outside the United Nations, it is bound to respect, as part of that law, the binding decisions of the Security Council." [FN21] The operative verb is "respect"-not "defer to." The Court's decision, Lachs emphasized, "should not ... be seen as an abdication of the Court's powers." [FN22]

This carefully crafted nonabdication is succinctly put by the separate opinion, concurring in the majority's result, by Judge Shahabuddeen: The question now raised by Libya's challenge to the validity of resolution 748 (1992) is whether a decision of the Security Council may override the legal rights of States, and, if so, whether there are any limitations on the power of the Council to characterize a situation as one justifying the making of a decision entailing such consequences. Are there any limits to the Council's powers of appreciation? In the equilibrium of forces underpinning the structure of the United Nations within the evolving international order, is there any conceivable point beyond which a legal issue may properly arise as to the competence of the Security Council to produce such overriding results? If there are any limits, what are those limits and what body, if other than the Security Council, is competent to say what those limits are? [FN23]

That is the nub of the matter, although the case exhibits many other interesting aspects. For example, one of those joining in the decision, [FN24] as well as one dissenting judge, [FN25] expressed the view that the United States was obliged by its recourse to the Security Council to renounce any right to take unilateral measures against Libya. Central, however, is the issue highlighted in the dissent of Judge Weeramantry: "does ... the Security Council discharge[] its variegated functions free of all limitations, or is there a circumscribing boundary of norms or principles within which its responsibilities are to be discharged?" [FN26] The majority and dissenting opinions seem to be in agreement that there are such limits and that they cannot be left exclusively to the Security Council to interpret. The legality of actions by any UN organ must be judged by reference to the Charter as a "constitution" of delegated powers. In extreme cases, the Court may have to be the last-resort defender of the system's legitimacy if the United Nations is to continue to enjoy the adherence of its members. This seems to be tacitly acknowledged judicial common ground.

What distinguishes the Court's majority from its minority is the degree of caution exhibited by the former in staking any Marbury-like claim to umpire the system. The majority, implicitly, reserves that function to itself by finding that the Security Council's action was valid by operation of Charter Article 103. There is no grand rhetoric and no speculation about other, hypothetical cases in the majority opinion. In the circumstances of post-Cold War Security Council ascendance, such judicial caution is warranted, but should not be misread as weakness.

Furthermore, the warrant to exercise caution now surely passes to the Security Council. Many members of the United Nations with little or no voice in the deliberations of the Council are probably somewhat surprised to find that it may order them to take major steps that they consider contrary to their national interest and that, moreover, are incongruent with expectations created by multilateral treaties to which they are parties. At the very least, its newly burnished powers make the Security Council far more important than it was in the days of Cold War stasis. Nations like Britain and France, whose historically based and Charter-stipulated special status in the Council is no longer self-evidently justified, might have wished that this aspect of the issue of Charter reform could have been postponed to a later day. Now that the Council has been shown to be capable of exercising potentially vast powers directly affecting all member states, such postponement, however useful it might have been, will be more difficult to sustain. The more the Council uses these very wide powers, especially in the absence of a broad consensus, the more urgent will be the calls for institutional reform.

Reform will take time and, of course, can be prevented by any of the Council's present permanent members. [FN27] If the Organization is to navigate the shoals of reform without disabling itself, everyone will have to practice modesty: those who have power and those who do not, but want some. In the inevitably rough spots ahead, it is reassuring to note that the Court has carefully, and quietly, marked its role as the ultimate arbiter of institutional legitimacy.


FNa. The author wishes to thank his colleague pro tem, Dr. Georg Nolte, for his tireless and ultimately convincing critique of a draft of this editorial.

FN1 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.S.), Request for the Indication of Provisional Measures, General List No. 89 (Order of Apr. 14) (mimeo.) [hereinafter Libya v. U.S. (Prov. Meas.)].


Id. (Libya v. UK), Request for the Indication of Provisional Measures, General List No. 88 (Order of Apr. 14).

FN3 5 U.S. (1 Cranch) 137 (1803).

FN4 The Constitution of the United States of America 560 n.2 (Edward S. Corwin ed., 1952).

FN5 Libya v. U.S. (Prov. Meas.), supra note 1, Declaration of Judge Oda.

FN6 UN CHARTER Art. 92. See also Libya v. U.S. (Prov. Meas.), supra note 1, Declaration of Judge Ni.


FN8 Id., Art. 94(1).

FN9 ROSALYN HIGGINS, THE DEVELOPMENT OF INTERNATIONAL LAW THROUGH THE POLITICAL ORGANS OF THE UNITED NATIONS 66 & n.27 (1963). See, however, Libya v. U.S. (Prov. Meas.), supra note 1, Dissenting Opinion of Judge Weeramantry, at 9-14, for a summary of the legislative history that carefully calibrates the conclusions to be drawn.

FN10 Libya v. U.S. (Prov. Meas.), supra note 1, slip op. at 6, para. 11.

FN11 SC Res. 731 (Jan. 21, 1992) and SC Res. 748 (Mar. 31, 1992).

FN12 Libya v. U.S. (Prov. Meas.), supra note 1, slip op. at 13-14, para. 38.

FN13 Id. at 2-3. For the Montreal Convention, Sept. 23, 1971, see 24 UST 564, TIAS No. 7570.

FN14 Libya v. U.S. (Prov. Meas.), supra note 1, slip op. at 5, para. 10.

FN15 Id. at 3, para. 5.

FN16 Id. at 14, para. 39.

FN17 Id., para. 42.

FN18 Id.

FN19 Id.

FN20 Id., Declaration of Judge Oda, pt. III, at 3.

FN21 Libya v. U.S. (Prov. Meas.), supra note 1, Separate Opinion of Judge Lachs, at 1.

FN22 Id. at 2.

FN23 Libya v. U.S. (Prov. Meas.), supra note 1, Separate Opinion of Judge Shahabuddeen, pt. (iii), at 2-3 (emphasis added).

FN24 Id., pt. (i), at 2. It appears to me, however, that whatever was the previous position, the inference to be judicially drawn from the facts as they now stand is that the Respondent, having promoted and supported the resolution, is prepared to follow the course indicated in the resolution and accordingly not to resort to force unless authorized by the Security Council.

FN25 Judge Weeramantry.

FN26 Libya v. U.S. (Prov. Meas.), supra note 1, Dissenting Opinion of Judge Weeramantry, at 11.

FN27 UN CHARTER Art. 108.




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