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The Role of the International Court of Justice as the Principal Judicial Organ of the United Nations. By Mohamed Sameh M. Amr. The Hague, New York: Kluwer Law International, 2003. Pp. xxiii, 447. Index, $173.
Published online by Cambridge University Press: 27 February 2017
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- Copyright © American Society of International Law 2005
References
1 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. UK) (Libya v. U.S.), Order (Int’l Ct. Justice Sept. 10, 2003). The basic documents, decisions, pleadings, and other materials concerning the International Court of Justice are available at the Court’s Web site, <http://www.icj–cij.org>.
2 Franck, Thomas M., The “Powers of Appreciation”: Who Is the Ultimate Guardian of UN Legality? 86 AJIL 519, 523 (1992)Google Scholar.
3 For a more thought–provoking analysis of the early stages of the Lockerbie cases, especially the “constitutional” questions potentially presented by them, than is offered in Amr’s book, see Skubiszewski, Krzysztof, The International Court of Justice and the Security Council, in Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings 606, 615–19 (Lowe, Vaughan & Fitzmaurice, Malgosia eds., 1996)Google Scholar (with references to additional literature at 623 n.82).
4 Oil Platforms (Iran v. U.S.) (Int’l Ct. Justice Nov. 6, 2003), 42 ILM 1334 (2003). For this reviewer’s case report, see 98 AJIL 550 (2004).
5 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Int’l Ct. Justice July 9, 2004), 43 ILM 1009 (2004). The present reviewer served as counsel to Palestine in the Wall case.
6 Oil Platforms, paras. 50–78; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, paras. 138–39.
7 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para. 24.
8 Id., paras. 25–26.
9 Id., para. 27.
10 Most notably, Fitzmaurice, Gerald, The Law and Procedure of the International Court of Justice (1986)Google Scholar and Singh, Nagendra, the Role and Record of the International Court of Justice (1989)Google Scholar.
11 See especially Rosenne, Shabtai, the Law and Practice of the International Court 1920–1996 (3d ed., 1997 Google Scholar). See also Geneviève, Guyomar, Commentaire Du Règlement De La Cour Internationale De Justice Adopté Le 14 Avril 1978—Interpretation Et Pratique (1983)Google Scholar. Oddly, Amr refers only to the outdated, 1965 edition of Rosenne’s monumental work— without mentioning its 1997 revised edition—and he nowhere mentions Guyomar’s standard treatise.
12 See, e.g., infra note 22. Curiously, this book about a court of law and its decisions lacks a separate index of cases. Consequently, the reader must use the general index to find case references. Leaving aside the case references, the index turns out to be rather meager for a work of this size.
13 The foreword by former ICJ President Mohammed Bedjaoui is even more recent (August 2002). As with any book discussing the contributions and functioning of a court of law, the more recent case law points interested readers in the right direction by enabling them to trace a line of decisions, thereby obviating the need to elaborate on the earlier decisions.
14 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para. 44 (quoting Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, 1950 ICJ Rep. 65, 71 (Mar. 30)).
15 Id., paras. 29–32.
16 Amr repeatedly refers to “parties” in this context (see pp. 109, 114). In stark contrast to contentious cases, however, advisory proceedings that rely exclusively on the Charter and the Statute do not involve any “parties.” The author’s reference to the Court’s advisory opinion in the Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations case, 1989 ICJ Rep. 177 (Dec. 15) (sometimes known as the Mazilu case; discussed by Amr at p. 97), also is misplaced here: at issue in that case was Romania’s challenge to the Court’s jurisdiction based on its reservation to the dispute settlement clause of the immunity treaty underlying the advisory proceeding, which the Court found to operate on a different plane and in a different context than Article 96 of the Charter, upon which the request by the UN Economic and Social Council for an advisory opinion had been based. Amr’s detailed discussion of the Mazilu case (pp. 163–64) does not mention Romania’s reservation argument.
17 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, paras. 46–50.
18 Id.
19 For example, Amr’s treatment of the question of the “creation of subsidiary judicial organs by political organs” (pp. 135–36) is limited to the General Assembly’s establishment of the UN Administrative Tribunal and lacks a discussion of how the Security Council’s creation of the Yugoslavia and Rwanda war crimes tribunals by Resolutions 827 (May 25, 1993) and 955 (Nov. 10, 1994), respectively, might square with the law as it has been interpreted by the ICJ.
20 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para. 32.
21 Id., para. 34.
22 It is in chapter 4 that Amr’s analysis suffers especially from an incomplete analysis of the most recent (pre–2002) precedents. Notwithstanding their importance to the subject matter of his book, he nowhere mentions the Legality of Use of Force cases brought by Serbia and Montenegro against several NATO member states, which were pending at the time of the book’s publication. References to the Court’s rulings in the already completed provisional measures phase of these cases—either in the section that discusses the optional clause (p. 184) or in the section that addresses the point in time for determining die Court’s jurisdiction in contentious cases (p. 193)—were not included. Moreover, there is no reference to the Court’s key statements regarding the optional clause made in Fisheries Jurisdiction (Sp. v. Can.), 1998 ICJ REP. 432 (Dec. 4) (reviewed in Pieter H. F. Bekker, World Court Decisions at the Turn of the Millennium (1997–2001), at 111 (2002)), a decision predating the book’s publication.
23 Aegean Sea Continental Shelf (Greece v. Turk.), Interim Measures, 1976 ICJ Rep. 3, para. 15, p. 14 (Sept. 11).
24 Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Provisional Measures, 2000 ICJ Rep. III (July 1). For a detailed discussion of this order, see Bekker, supra note 22, at 231.
25 1976 ICJ Rep. 3, para. 15, p. 14.
26 In the Lockerbie context, the Security Council first acted under Chapter VI of the Charter (SC Res. 731 (Jan. 21, 1992)) and subsequently under Chapter VII (SC Res. 748 (Mar. 31,1992)). Libya instituted proceedings before the ICJ in the time between the adoption of the two resolutions.
27 Armed Activities on the Territory of the Congo, para. 36.
28 Quartet Performance–Based Roadmap to a Permanent Two–State Solution to the Israeli–Palestinian Conflict, SC Res. 1515 (Nov. 19, 2003).
29 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para. 22.
30 Id., para. 62.
31 Skubiszewski, supra note 3, at 624 n.83; see also Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 ICJ Rep. 16, 45 Google Scholar (June 21) (“Undoubtedly, the Court does not possess powers of judicial review or appeal in respect of the decisions taken by the United Nations organs concerned.”). In Skubiszewski’s view:
The Court is not, and it is submitted de lege ferenda that it should not become, a tribunal of judicial review with power to declare null and void those acts of the Security Council that it finds contrary to law. But the Court, in view of its function, cannot and in fact did not shy away from pronouncing on the conformity of Security Council acts with law in both contentious and advisory procedures. No competence of any international organ is legally unlimited and the Court, provided it possesses jurisdiction in the matter submitted to it, is the proper authority to make a statement on whether an action by the Security Council remains within the bounds of law. Such decision or expression of opinion does not amount to judicial review in its proper sense, i.e. as emerging from, and comparable to, various systems of municipal law or the system of law of the European Union.
Skubiszewski, supra, at 628. In his analysis of the ICJ’s judicial review power (especially pp. 326–28), Amr fails to offer a comparison with die role played by the European Court of Justice within the European Union’s system of law (a role that is mentioned only in passing on pp. 383 and 391 of the book’s concluding chapter).
32 Vienna Convention on Consular Relations (Para, v. U.S.), Provisional Measures, 1998 ICJ Rep. 248, para. 38 (Apr. 9); LaGrand (Ger. v. U.S.), Provisional Measures, 1999 ICJ Rep. 9, para. 25 (Mar. 3); Avena (Mex. v. U.S.), Provisional Measures, para. 48 (Int’l Ct. Justice Feb. 5, 2003), 42 ILM 309 (2003).
33 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.S.), Preliminary Objections, 1998 ICJ Rep. 115, 171 (Feb. 27) (Schwebel, Pres., dissenting).
34 See A More Secure World: Our Shared Responsibility, Report of the Secretary–General’s High–Level Panel on Threats, Challenges and Change, UN Doc. A/59/565 (2004), at <www.un.org/secureworld>, which unfortunately does not discuss the ICJ’s role. See also In Larger Freedom: Towards Development, Security and Human Rights for All: Report of the Secretary–General, UN Doc. A/59/2005 (2005).
35 Applicability of the Obligation to Arbitrate Under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, 1988 ICJ Rep. 3 (Apr. 26).
36 See ICJ Press Release 2004/32 (Nov. 4, 2004) (“The International Court of Justice is capable of ‘reacting urgently and efficiently’, President Shi tells United Nations General Assembly”).
37 For discussion of the Practice Directions, which are available on the Court’s Web site, see Crook, John R., The 2001 Judicial Activity of the International Court of Justice, 96 AJIL 397, 410–11 (2002)Google Scholar.
38 A year later, Schwebel’s successor as president, Gilbert Guillaume, announced a similar proposal, suggesting that such a practice would reduce the risk of differing interpretations of international law. The full text of both Schwebel’s and Guillaume’s addresses to the General Assembly (October 26, 1999, and October 26, 2000, respectively) are available at the ICJ’s Web site.