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THE UNITED NATIONS AT 70 YEARS: THE IMPACT UPON INTERNATIONAL LAW

Published online by Cambridge University Press:  10 November 2015

Rosalyn Higgins
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Extract

This article is about the United Nations (UN) and International Law. It is not about internal developments at the UN. It is not about new Committees or other UN structures, relations with Specialized Agencies or indeed other major international organizations. I have not taken a snapshot today, but rather seek to show how the UN has, through the 70 years of its existence, had an impact on international law.

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Articles
Information
International & Comparative Law Quarterly , Volume 65 , Issue 1 , January 2016 , pp. 1 - 19
Copyright
Copyright © British Institute of International and Comparative Law 2015 

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References

1 This is a slightly amended version of the FCO Annual International Law Lecture given at the UK Foreign and Commonwealth Office 30 June 2015.

2 GA Res 74(II) 21 NN 1947.

3 Art 1(1) ILC Statute 1947.

4 Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3.

5 UNCLOS 1982, 1833 UNTS, 397.

6 ILC Articles on Responsibility of States for Internationally Wrongful Acts 2001 available at <www.un.org/law/ilc>.

7 Hostages Convention 1979, 1316 UNTS 205.

8 Convention for the Suppression of Unlawful Seizure of Aircraft (Hijacking Convention) 1971, 860 UNTS 105.

9 Terrorist Bombings Convention 1997, 2149 UNTS 284.

10 Terrorism Financing Convention 1999, 2178 UNTS 229.

11 International Convention for the Suppression of Acts of Nuclear Terrorism 2005, 2445 UNTS 89.

12 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226, para 70.

13 GA Res 1803 (1962) para I 3.

14 ibid para I 4.

15 The ‘Hull Formula’—articulated by US Secretary of State Cornell Hull in a note dated 21 July 1938 in response to the Mexican nationalizations of 1917.

16 Charter of Economic Rights and Duties of States, GA Res 3281, UN Doc A/RES/29/3281 (12 December 1974).

17 Addressing the First Committee of the General Assembly on 1 November 1967. See ITLOS website at <https://www.itlos.org/the-tribunal/>—‘TheTribunal’. See also RP Anand, Legal Regime of the Sea-Bed and the Developing Countries (Sijthoff 1976) 182.

18 Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil Thereof 1972, 955 UNTS 115.

19 Resolution adopted by the General Assembly 2749 (XXV), Declaration of Principles Governing the Sea-Bed and the Ocean Floor and the Subsoil Thereof beyond the Limits of National Jurisdiction 1970, A/RES/25/2749.

20 Art 148 UNCLOS.

21 Art 202 UNCLOS.

22 R Higgins, Development of Law through the Political Organs of the United Nations (OUP 1963).

23 Montevideo Convention on the Rights and Duties of States 1933, 4.

24 GA Res 67/19 (2012) para 2.

25 Depositary Notification of Accession to the Rome Statute of the International Criminal Court by the State of Palestine 6 January 2015, C.N.13.2015.Treaties-XVIII.10, <http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1083.aspx>.

26 Reference available at: <http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1083.aspx.>.

27 Shelton, D, ‘The Participation of Nongovernmental Organizations in International Judicial Proceedings’ (1994) 88 AJIL 611CrossRefGoogle Scholar.

28 The Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territories (Advisory Opinion) [2004] ICJ Rep 136.

29 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Order of 19 December 2003 [2003] ICJ Rep 428.

30 ibid para 2.

31 Request for Advisory Opinion Transmitted to the Court Pursuant to General Assembly Resolution A/RES/63/3 (A/63/L.2) of 8 October 2008, Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo.

32 Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (Request for Advisory Opinion), Order of 17 October 2008 [2008] ICJ Rep, 409, para 4—see <http://www.icj-cij.org/docket/files/141/14813.pdf>.

33 See Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion [2010] ICJ Rep, 403 generally.

34 Thirlway, H, ‘The International Court of Justice 1989–2009: At the Heart of the Dispute Settlement System’ (2010) 57 NILR 347CrossRefGoogle Scholar. An invitation to an individual would, of course, be incompatible with art 34 of the Statute, which provides that only States may be parties to a case.

35 Which provides: ‘With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: (…) (c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.’

36 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, December 2008 Doc A/63/435; C.N.869.2009, entered into force 5 May 2013, of which there are 45 signatories and 21 State parties including Argentina, Bolivia, Costa Rica, Mongolia, Gabon and Slovakia.

37 In the Wall Advisory Opinion (n 29) above.

38 General Comment No 27: Art 12 (Freedom of Movement), 2 November 1999, CCPR/C/21/Rev.1/Add.9.

39 See paras 136 and 110 at 193 and 179–80 respectively of the Wall Advisory Opinion (n 29) above. See also Consideration of Reports Submitted by States Parties under Article 40 of The Covenant, Concluding Observations of the Human Rights Committee, Israel CCPR/C/79/Add.93, 18 August 1998.

40 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Judgment) [2002] ICJ Rep 33.

41 General Comment No 15: The Position of Aliens under the Covenant, 11 April 1986,

42 Maroufidou v Sweden, Merits [1981] Comm No 58/1979 (App No) UN Doc CCPR/C/12/D/58/1979, IHRL 1734 (UNHRC 1981).

43 These and other examples are given in Sir Nigel Rodley, ‘The International Court of Justice and Human Rights Treaty Bodies’ in JA Green et al. (eds), Adjudicating International Human Rights: Essays in Honour of Sandy Ghandhi (Brill Nijhoff 2015).

44 UNSC Res 1483 (2003)

45 UNSC Res 1612 (2005).

46 UNSC Res 2106 (2013).

47 UNSC Res 1975 (2011) para 6.

48 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970) [1971] Advisory Opinion ICJ Rep 16.

49 Western Sahara [1975] Advisory Opinion ICJ Rep 226.

50 Art 1(1) of the ICCPR and the ICESCR.

51 Conference on Security and Co-Operation in Europe Final Act, Helsinki 1975.

52 Art 25(b) ICCPR.

53 Art 25(a) and (c) ICCPR.

54 African Charter on Human and Peoples' Rights 1981.

55 See eg Second and Final Report of the Secretary General on the Plan for an Emergency International United Nations Force Requested in the Resolution adopted by the General Assembly on 4 November 1956 (A/3276), A/3302 6 November 1956.

56 See eg International Day of UN Peacekeepers: An effective UN fit for future peace operations 29 May 2014 available at <https://www.wiltonpark.org.uk/international-day-of-un-peacekeepers/>.

57 See eg UNSC Res 816 and 781 (1993).

58 See eg <http://www.un.org/en/peacekeeping/operations/partnerships.shtml>.

59 Partnering for peace: moving towards partnership peacekeeping, Report of the Secretary-General, S/2015/229.

60 Figures correct as at 31 March 2015 see <http://www.un.org/en/peacekeeping/archive/2015/bnote0315.pdf>.

61 Prime Minister David Cameron addressing the House of Commons on the UN Security Council Resolution (Libya) on Friday, 18 March 2011, col 612 Hansard.

62 This may relate to UK support by aerial surveillance of the military action of others in Syria.

63 S/PRST/2014/20, 19 September 2014.

64 See eg ‘the UN Legal Counsel has never asserted or qualified that American airstrikes in Syria are illegal or against the Charter. Accordingly, he has never suggested statements should be made to that effect’- Stéphane Dujarric, Spokesman for the Secretary-General during the Daily Press Briefing by the Office of the Spokesperson for the Secretary-General noon briefings, 6 March 2015 available at <http://www.un.org/press/en/2015/db150306.doc.htm>.

65 The EU naval operation against human smugglers and traffickers in the Mediterranean.

66 Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union Military Operation in the Southern Central Mediterranean (EUNAVFOR MED), Official Journal of the European Union L 122/31.

67 Identical letters dated 26 March 2015 from the Permanent Representative of Qatar addressed to the Secretary-General and the President of the Security Council enclosing a joint statement issued by the Kingdom of Saudi Arabia, the United Arab Emirates, the Kingdom of Bahrain, the State of Qatar and the State of Kuwait in response to the request by the President of the Republic of Yemen, Abd Rabbo Mansour Hadi, for the protection of Yemen and its people and to help Yemen to counter terrorist organizations, S/2015/217.

68 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) [1994] ICJ Rep 112.

69 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) [2005] ICJ Rep 168.

70 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43.

71 Land and Maritime Boundary between Cameroon and Nigeria, Cameroon and Equatorial Guinea (Intervening) v Nigeria (Judgment) [2002] ICJ Rep 303.

72 Maritime Delimitation in the Black Sea (Romania v Ukraine) (Judgment) [2009] ICJ 61.

73 North Sea Continental Shelf (Judgment) [1969] ICJ Rep 3.

74 Maritime Dispute (Peru v Chile) 27 January 2014 available at <http://www.icj-cij.org/docket/index.php?p1=3&p2=3&case=137&code=pch&p3=4>.

75 International Commission on Intervention and State Sovereignty (ed), The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (International Development Research Centre 2001).

76 Preamble to and art 3(h) of the Constitutive Act of the African Union 2000.

77 Art 4(h) of the Constitutive Act of the African Union 2000.

78 Responsibility to protect: timely and decisive response, Report of the Secretary-General, A/66/874, S/2012/578 (2012), para. 54.

79 Webb, P, ‘Deadlock or Restraint? The Security Council Veto and the Use of Force in Syria’ (2014) 19 Journal of Conflict and Security Law 471CrossRefGoogle Scholar.

80 Berman and Michaelsen argue that express invocation of R2P would have prevented rather than facilitated the adoption of Resolution 1973 (2011) and its authorization of the use of force to protect civilians in Libya because China and Russia would have vetoed the resolution. Berman, D and Michaelsen, C, ‘Intervention in Libya: Another Nail in the Coffin for the Responsibility-to-Protect?’ (2012) 14 International Community Law Review 337CrossRefGoogle Scholar.

81 Responsibility to protect: timely and decisive response, Report of the Secretary-General, A/66/874, S/2012/578 (2012), para 54.

82 N Nougayrède, ‘Kofi Annan: ‘‘Sur la Syrie, à l’évidence, nous n'avons pas réussi’’’, Le Monde, 7 July 2012.

83 See Human Rights Committee General Comment No 26: Continuity of Obligations, 8 December 1997, CCPR/C/21/Rev.1/Add.8/Rev.1

84 Genocide Convention (Bosnia v FRY) (Preliminary Objections) [1996] ICJ Rep 4.