On The Judicial Review Of The United Nations Security Council Resolutions

Since the end of the Cold War, the United Nations Security Council has playing an increasingly greater role in safeguarding international peace and security, the number of resolutions adopted by the Security Council has also increased significantly, but the legality of resolutions has been questioned. As to the legality of the Security Council resolutions, some scholars claim that the judicial review should be made by the International Court of Justice over the Security Council resolutions. While this claim is facing many serious difficulties, which include the United Nations Charter and its provisions do not provide the International Court of Justice has the power to make judicial review over the legality of Security Council resolutions, and the International Court of Justice in its judicial practice also acknowledge that it has no powers of judicial review over Security Council resolutions. In addition, the judicial review of Security Council resolutions also involve the principles of the review, the scope of the review, the criteria of the review, the means of the review, the legal effects of the review and other issues. This article is divided into eight chapters to explore these issues.The first chapter is on the jurisprudence basis of judicial review regarding the Security Council resolutions. The chapter begins with an overview of the types of resolutions of the Security Council, the legal nature and its legally binding, and then analyzes the performance of the crisis of legality of the Security Council resolutions, causes, and ways etc. Theoretical basis of judicial review of the resolutions of the Security Council is mainly the requirements of the international rule of law, the theory of restriction of power as well as the nation’s right to judicial relief.The second chapter is on the subjects of judicial review regarding the Security Council resolutions. In terms of the judicial review, the organ first takes into consideration is the International Court of Justice. However, according to the rules in the United Nations Charter and the Statue of the International Court of Justice, such legal merits cannot be found at all. The history of drafting the United Nations Charter also indicates that the International Court of Justice does not have any power to execute judicial review, nor does the International Court of Justice acknowledge such power in practice. Nevertheless, from various analysis, the subject that is most likely to take the judicial review is exactly the International Court of Justice. Although the other international judicial authorities, such as International Criminal Tribunal for the former Yugoslavia, the Court of Justice of the European Union, also claim that they have power to censor the legality of the Security Council resolutions, which censorship is only limited to certain or some particular ones.The third chapter is on the principles of judicial review. When reviewing the legality of the Security Council resolutions by the International Court of Justice, the following principles should be abided by, including the principle of the case, the principle of political issues not being reviewed, the principle of presumption of validity and the principle of interpretation of legality.The fourth chapter is on the scope of judicial review regarding Security Council resolutions. The scope of the judicial review of Security Council resolutions by International Court of Justice should primarily focus on the resolutions made by the Security Council according to the seventh chapter of United Nations Charter. The difficulty in reviewing the resolutions of judicial review lies in the fact that the Security Council has large discretion when passing this sort of resolutions, and owing to lack of law provisions, it is difficult to judge whether the Security Council violates any laws when reviewing. Some resolutions of the legality of the peacekeeping operations passed by UN Security Council are also questioned. Similarly, reviewing their legality is confronted with lack of legal criteria.The fifth chapter is on the criteria of judicial review regarding Security Council resolutions. The purpose and principles of the UN provided by the United Nations Charter should be obeyed by the Security Council, at the same time it should abide by the customary international law if it itself is jus cogens. The general principles of law are seldom applied in the judicial practice, and it is merely the general ones in judicial process despite law application, so adopting them to reviewing the resolutions is of little significance.The sixth chapter is on the means of judicial review regarding Security Council resolutions. As the disputing party of the contentious cases of the International Court of Justice should be the state, the International Court of Justice faces many institutional barriers when making a judicial reviewing on the resolutions of the Security Council by direct jurisdiction, while in the present proceedings under the jurisdiction of the Security Council resolutions, it is still possible for the International Court of Justice to make an indirect judicial review. The possibility of judicial review on Security Council resolutions by advisory jurisdiction is still exist, but the biggest problem lies that the advisory opinion of the Court has no legal binding.The seventh chapter is on the legal binding of judicial review regarding Security Council resolutions. The judicial judgment or opinion over the Security Council resolutions made by the International Court of Justice should have a legal binding, or on one hand it may lead to resolutions of the Council by the International Court of Justice declared illegal or invalid, on the other hand it will cause a strange situation which the Member States of the United Nations must comply with the Security Council resolutions. Illegal or invalid resolutions of the Security Council may also lead to international legal responsibilities of the United Nations.The eighth chapter is on the China’s position on the construction of the judicial review of the Security Council resolutions. Judging from the practice of China in the United Nations, The Chinese government pay more attention to the role of the UN Security Council in maintaining international peace and security. From the view of Combining with China’s position on the International Court of Justice, it is difficult to come to the conclusion that Chinese Government will support the International Court of Justice for judicial review of the resolutions of the Security Council. Supporting the International Court of Justice for judicial review of Security Council resolutions, will contribute to strengthen the restrictions on the powers of the Security Council and relieve pressure on Security Council reform. This system will also help to avoid a sharp confrontation between China and the United States and other Western countries, thus to create a favorable international environment for the peaceful development.