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United Nations Law

Published online by Cambridge University Press:  27 February 2017

Oscar Schachter
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Extract

As the United Nations system approaches its fiftieth anniversary, there is good reason to take a fresh view of its contribution to legal order in the contemporary world. That contribution has rarely been assessed in its full generality. A half century of law creation and application by the United Nations and its specialized agencies has produced a corpus juris of impressive breadth and diversity. Not surprisingly, the greater part of this law is known only to those specially concerned with a particular area or subject. Indeed, no one can be expected to be knowledgeable in all, or even most, of the fields covered. Still, along with the diversity, common elements can be found to enable us to characterize the total product as a distinctive, multilayered legal order. This essay is an overview of its essential and interesting features. It aims particularly at informing the many nonspecialists in and outside the international law community who have reason to be interested in the process and substance of the legal contribution of the UN system.

Type
Research Article
Information
American Journal of International Law , Volume 88 , Issue 1 , January 1994 , pp. 1 - 23
Copyright
Copyright © American Society of International Law 1994

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References

1 More detailed studies by 20 experts are included in a two-volume work sponsored by the American Society of International Law, entitled United Nations Legal Order (Oscar Schachter & Christopher C. Joyner eds.), to be published by Grotius Publications Limited/Cambridge University Press in 1994. A somewhat different version of this essay introduces the two volumes.

2 The enforcement powers of the Security Council under chapter VII of the Charter contemplate action in particular cases rather than by adopting general rules. However, such measures may take the form of mandatory decisions imposing obligations on all states or large groups of states. Several specialized agencies have constitutional authority to make binding rules on certain subjects. They include the International Civil Aviation Organization, the International Maritime Organization and the World Health Organization.

3 See Theodor Meron, Human Rights and Humanitarian Law as Customary Law (1989).

4 Prosper Weil, Towards Relative Normativity in International Law?, 77 AJIL 413, 438 (1983). For different perspectives, see Jonathan I. Charney, Universal International Law, 87 AJIL 529 (1993), and writings cited therein.

5 GA Res. 2625 (XXV) (Oct. 24, 1970).

6 See, e.g., Advisory Opinions on Western Sahara, 1975 ICJ Rep. 12 (Oct. 16); 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 (June 21) [hereinafter Namibia].

7 See Oscar Schachter, International Law in Theory and Practice 85–94 (1991). International lawyers have been fascinated by this subject. It is hard to find even one who has not written on the effect of General Assembly resolutions. For a survey of the literature, see Blaine Sloan, United Nations General Assembly Resolutions in Our Changing World (1991).

8 Article 13(a) of the Charter obliges the General Assembly to initiate studies and make recommendations to encourage “the progressive development of international law and its codification.” For legislative history and discussion of the role of the Commission, see Herbert W. Briggs, The International Law Commission 3–28 (1964).

9 See Hersch Lauterpacht, Codification and Development of International Law, 49 AJIL 16 (1955).

10 The best examples are the Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331, the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 UST 3227, 500 UNTS 95, and the Vienna Convention on Consular Relations, Apr. 24, 1963, 21 UST 77, 596 UNTS 261.

11 See Bruno Simma, Consent: Strains in the Treaty System, in The Structure and Process of International Law 485, 488–90 (Ronald St. J. Macdonald & Douglas M. Johnston eds., 1983).

12 Karl Zemanek, Codification of International Law: Salvation or Dead End?, in 1 Le Droit International à l’heure de aa codification 581, 601 (1987). See also Roberto Ago, Nouvelles réflexions sur la codification du droit international, in International Law at a Time of Perplexity 1 (Yoram Dinstein ed., 1988).

13 See United Nations Codification of State Responsibility (Marina Spinedi & Bruno Simma eds., 1987) [hereinafter Spinedi & Simma].

14 Oscar Schachter, Recent Trends in International Law Making, 12 Austl. Y.B. Int’l L. 1, 2–7 (1992).

15 See Jean Pierre Dobbert, Le Codex Alimentarius: vers une nouvelle méthode de réglementation Internationale, 15 Annuaire Français de Droit International 677 (1969).

16 Doc. 750, IV/2/B/1, 13 U.N.C.I.O. Docs. 831–32 (1945).

17 Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), 1962 ICJ Rep. 151 (Advisory Opinion of July 20).

18 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. UK; Libya v. U.S.), 1992 ICJ Rep. 3, 114 (Orders of Apr. 14).

19 Id. at 26 (Lachs, J., sep. op.).

20 Id. at 27.

21 See Thomas M. Franck, The Power of Legitimacy Among Nations 16, 21–25, 47 (1990);Jose E. Alvarez, The Quest for Legitimacy, 24 N.Y.U. J. int’l L. & Pol. 199–255 (1991) (review essay of Franck, supra); Otunnu, infra note 49.

22 See Dencho Georgiev, Politics or Rule of Law: Deconstruction and Legitimacy in International Law, 4 Eur. J. Int’l L. 1, 8 (1993).

23 Oscar Schachter, The Invisible College of International Lawyers, 72 Nw. U. L. Rev. 217 (1972); Terry Nardin, Law, Morality and the Relations of States 173—77 (1983).

24 Report of the Working Group on Enforced or Involuntary Disappearances to the Human Rights Commission, UN Doc. E/CN.4/1992/18 (1991).

25 See The United Nations and Human Rights: A Critical Appraisal (Philip Alston ed., 1992), particularly at 160–81 in the chapter on the Commission on Human Rights, written by Alston.

26 In October 1993, the UN Under-Secretary-General for Peace-keeping Operations, Kofi Annan, reported: “Of the thirty-three operations mounted in the last 45 years, and the 17 still running, 12 have taken shape in the last two years alone and 5 have come into being within the last five months.” Ass’n Former Int’l Civil Servants, Q. Bull., Oct. 1993, at 7.

27 UN missions observed elections in Angola, Cambodia, El Salvador, Haiti, Namibia and Nicaragua.

28 See Schachter, supra note 7, at 238–39. The General Assembly also rejected the credentials of representatives of Hungary in the years 1957–1962 on the ground that they did not represent a legal government but one established by troops of the Soviet Union.

29 See Report of Rapporteur on Chapter VIII B (corresponding to chapter VII) at San Francisco, Doc. 881, HI/3/46, 12 U.N.C.I.O. Docs. 502 (1945), quoted in Kelsen, supra note 21, at 728 n.7. Kelsen regards the term “sanctions” as not appropriate for enforcement measures under chapter VII since they are “not established as reaction against a violation of obligations established by the Charter.” Id. at 733–36.

30 The remarkable increase in the use of chapter VII by the Council is shown by the following statistics. In the 45 years prior to 1990, the Council adopted only 14 resolutions under chapter VII. From 1990 through 1993, it adopted 58 chapter VII resolutions, 25 of them in 1993. These figures were supplied by the UN Secretariat.

31 Lori Fisler Damrosch, The Civilian Impact of Economic Sanctions, in Enforcing Restraint: Collective Intervention in Internal Conflicts 274 (Lori F. Damrosch ed., 1993).

32 Article 50 gives a right to member states confronted with special economic problems arising from UN enforcement action to consult the Security Council with regard to solving those problems. It does not impose any obligation to compensate them. Security Council Resolution 687, Apr. 3, 1991, reprinted in 30 ILM 846 (1991), provided that Iraq’s oil revenues would be available to pay claims as determined by a UN Compensation Commission. See also SC Res. 692 (May 20, 1991), reprinted in id. at 864.

33 While the Security Council referred expressly to chapter VII in the Iraq case, it did not mention any article in that chapter. Some commentators inferred that the Council’s action fell under Article 42, some considered Article 51 on collective self-defense as the implied basis, whereas others considered that both Articles 42 and 51 applied: still others believed that chapter VII alone was intended as the basis. See Oscar Schachter, United Nations Law in the Gulf Conflict, 85 AJIL 452, 457–63 (1991); Carl-August Fleischhauer, Enforcement and Inducing Compliance under the United Nations Charter, 85 ASIL Proc. 429, 431 (1991).

34 An Agenda for Peace, Report of the Secretary-General, UN Doc. A/47/277-S/24111 (1992), reprinted in 31 ILM 953 (1992).

35 See The United Nations: Hearts of Gold, Limbs of Clay, Economist, June 12, 1993, at 21.

36 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3 (May 24).

37 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (June 27) [hereinafter Nicaragua].

38 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina v. Yugo. (Serbia & Montenegro)), 1993 ICJ Rep. 3 (Order of Apr. 8).

39 See Report of the International Law Commission on the work of its forty-fifth session, UN Doc. A/48/10 (1993); James Crawford, The ILC’s Draft Statute for an International Criminal Tribunal, infra p. 140.

40 SC Res. 808 (Feb. 22, 1993); SC Res. 827 (May 25, 1993), reprinted in 32 ILM 1203 (1993). The statute of the tribunal is in UN Doc. S/25704 (1993), reprinted in id. at 1159. See Theodor Meron, War Crimes in Yugoslavia and the Development of International Law, infra p. 78; James C. O’Brien, The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia, 87 AJIL 639 (1993).

41 See Elihu Lauterpacht, Aspects of the Administration of International Justice 9–22 (1991).

42 Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

43 See Christoph Schreuer, Decisions of International Institutions Before Domestic Courts (1980); Antonio Cassese, Front-Line National Judges and International Law, in Violence and Law in the Modern Age 149–71 (1988).

44 See Spinedi & Simma, supra note 13.

45 See Schachter, supra note 7, at 185–200.

46 See Barcelona Traction, Light & Power Co. (Second Phase) (Belg. v. Spain), 1970 ICJ Rep. 3, 32 (Feb. 5).

47 Namibia, 1971 ICJ Rep. at 55–56.

48 Id.

49 See Olara Otunnu, Maintaining Broad Legitimacy, in Keeping the Peace in the Post-Cold War Era 67–83 (Trilateral Commission 1993).

50 This metaphor was suggested by a similar metaphor used by J. Robert Oppenheimer with respect to physics. See J. Robert Oppenheimer, Prospects in the Arts and Sciences, in The Open Mind 135–37 (1955).

51 Thomas M. Franck, The Emerging Right to Democratic Governance, 86 AJIL 1 (1992).

52 For a recent comprehensive work, see The United Nations and Human Rights, supra note 18.

53 GA Res. 41/128 (Dec. 4, 1986).

54 See Sidney Bailey, Voting in the Security Council (1969); Anjali V. Patil, The UN Veto in World Affairs 1946–1990 (1992). For ideas to limit the veto, see David D. Caron, The Legitimacy of the Collective Authority of the Security Council, 87 AJIL 552, 577–88 (1993).

55 GA Res. 3314 (XXIX) (Dec. 14, 1974).

56 Note 5 supra.

57 Nicaragua, 1986 ICJ Rep. at 103, paras. 193, 195.

58 Corfu Channel (UK v. Alb.), 1949 ICJ Rep. 4 (Apr. 9); United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3 (May 24). See Oscar Schachter, Disputes Involving the Use of Force, in The International Court of Justice at a Crossroads 223–41 (Lori F. Damrosch ed., 1987); Domingo E. Acevedo, Disputes Under Consideration by the UN Security Council or Regional Bodies, id. at 242; Eugene V. Rostow, Disputes Involving the Inherent Right of Self-Defense, id. at 264.

59 See Rosalyn Higgins, International Law and the Avoidance, Containment and Resolution of Disputes, 230 Recueil des Cours 9, 243–64 (1991 V); Alain Pellet, Le Glaive et la balance, in International Law at a Time of Perplexity, supra note 12, at 539–66.

60 SC Res. 687 (1991), supra note 25. The resolution required Iraq to destroy all biological and chemical weapons as well as its ballistic missiles with a range greater than 150 kilometers. It also prohibited Iraq from acquiring or developing nuclear weapons or weapons-usable material. Iraq was required to allow inspectors from the United Nations and from the International Atomic Energy Agency access to all military and civil installations with a potential weapons capacity, to all laboratories and research projects, and to all scientists and technicians working there. Both the UN inspection group (UNSCOM) and the IAEA carried out inspections and at times reported obstacles to their activities. See IAEA Inspection and Iraq’s Nuclear Capability, IAEA Doc. PI/A35E (1992). For a critical report, see Gary Milhollin, The Iraqi Bomb, New Yorker, Feb. 1, 1993, at 47–54.

Proposals have been made by commentators for a permanent inspectorate in the United Nations to deter proliferation of weapons of mass destruction. See Leonard Spector & Virginia Foran, Preventing Weapons Proliferation 27 (Stanley Foundation 1992).

61 GA Res. 3281 (XXIX) (Dec. 12, 1974).

62 An early private law contribution of the United Nations was the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 UST 2517, 330 UNTS 3, referred to usually as the New York Convention. It was initiated and developed largely by nongovernmental experts (especially the International Chamber of Commerce) and the Legal Department of the UN Secretariat. As of 1993, 85 states were parties. The UN Commission on International Trade Law (UNCITRAL) set up in 1966 has contributed substantially to new treaty law and uniform legislation. An important example is the UN Convention on Contracts for the International Sale of Goods, Apr. 10, 1980, UN Doc. A/CONF.97/18, reprinted in 19 ILM 671 (1980). Other conventions of a private law character have been concluded in regard to ocean transport, civil liability for pollution by ships and, recently, international bills of exchange and promissory notes.

63 Convention concerning the Recognition and Enforcement of Decisions relating to Maintenance Obligations towards Children, opened for signature Apr. 15, 1958, 539 UNTS 27.

64 The UN General Assembly adopted a Declaration of Basic Principles for Victims of Crime and Abuse of Power, GA Res. 40/34 (Nov. 29, 1985). The United Nations subsequently has sought to prevent and curtail such victimization by promoting monitoring, assistance to victims and access to justice. Victims of crime and abuse of power, ESC Res. 1990/22, UN Doc. E/l 990/69 (May 24, 1990).

65 The international treaties that relate to marine archaeology include the Unesco Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Nov. 14, 1970, 823 UNTS 231, the Unesco Convention on the World Cultural and Natural Heritage, Nov. 23, 1972, 27 UST 37, 1037 UNTS 151, and the United Nations Convention on the Law of the Sea (Article 303, in particular), opened for signature Dec. 10, 1982, UN Doc. A/CONF.62/122, reprinted in United Nations, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 (1983).

66 See Gaetano Arangio-Ruiz, Le Domaine réservé: l ’Organisation Internationale et le rapport entre droit international et droit interne, 225 Recueil Des Cours 29–484 (1990 VI), for a comprehensive and penetrating legal study of this controversial topic.

67 Boutros Boutros-Ghali, Statement to sixty-sixth session of the Institute of International Law (Aug. 30, 1993), UN Press Release SG/SM/5069, at 2 (Sept. 1, 1993). This is an English translation of the original French.

68 Id. at 3.