The Security Council, the International Court and Judicial Review:
What Lessons from Lockerbie?

Bernd Martenczuk^*

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Abstract

Unlike any previous case, the Lockerbie cases have raised questions about the nature and extent of the Security Council's powers under Chapter VII of the UN Charter. Due to the recent surrender of the suspects in the 1988 Lockerbie bombing, the International Court of Justice may no longer be in a position to pronounce itself on the validity of the resolutions adopted by the Council in this matter. However, the question of whether Security Council resolutions can be subjected to judicial review by the Court remains of crucial importance for the constitutional system of the United Nations. The article reviews the Court's orders and judgments in the Lockerbie cases and assesses the circumstances under which judicial review might occur in the context of the UN system. The article then turns to the substantive questions left unanswered by the Court, focusing on three main issues: the binding nature of the UN Charter for the Council; the nature and extent of the Council's power of determination under Article 39 of the Charter; and the Council's position with respect to general international law. Overall, the article proposes a textual approach to Article 39, the wording of which contains all the necessary elements for a workable delimitation of the Council's powers.

^* Dr. jur., University of Frankfurt am Main, 1996; Master of Public Administration, Harvard University, 1995. The author is presently a research fellow at the Institute of Public Law, University of Frankfurt am Main, Germany.

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