When it comes to the judicial review of a Security Council action by the ICJ, many observers would be concerned about the possible judicial supremacy of the ICJ, where the judges’ opinion overthrows a Security Council resolution, as has been seen in municipal settings. The judicial review, however, does not necessarily have to be limited to the case of the “judicial supremacy” version, in which the ICJ can vitiate a Security Council action after a direct petition for review by an individual state: this was illustrated by Judge Schwebel’s argument in the Pan Am 103 case.
This mode of “direct” judicial review will bind all United Nations organs in all future cases as in the judicial review by domestic supreme courts of many countries.
It is doubtful, however, whether such system will prove feasible or helpful in the current decentralized international order composed of independent sovereign actors. It would indeed be problematic to apply such a “direct” judicial review formula to the international setting where central legislative, judicial or enforcement mechanism is still lacking. It is not practical for the 15-member ICJ to operate as the highest entity in the United Nations and the ultimate decision maker for the international community. Unfortunately, the member states are not ready to accept an international society in which a judicial organ has the final say in the operation of the United Nations, nor does the current Charter envision such a judicial supremacy system. That will become possible only when a much higher degree of homogeneity and organization is attained in the future. Unless and until such a point is reached, the ICJ may consider a variety of “indirect” judicial review whenever it is called upon to examine or give effect to a Security Council resolution, both in the advisory opinion situation and the contentious case context.
Even a cautious, indirect approach will still be meaningful as an effective alternative to “direct” judicial review. Mere warnings of illegality or suggestions of alternative options from the ICJ may well serve as a check on the ultra vires or unlawful activity of the United Nations bodies, including of the Security Council. The ICJ cannot force the Security Council to take a particular measure in a particular case; however, the next time the Security Council faces a similar issue, it will be more likely that the Security Council will pay attention to the Charter principles and procedures as interpreted by the ICJ. The Pan Am 103 case itself is a good example of this analogy: although the ICJ decided its merits as based only upon an issue of technicality, namely, the filing date of the Libyan government, there was a clear indication that the resolution adopted under the auspices of the US and the UK may have experienced some legal problems. These two countries and other countries in similar situations would probably pay closer attention to such issues in any future case. In that respect, any judicial evaluation by the ICJ of a Security Council action, equipped with legal terms and standards, will have its own raison d’etre.