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The United Nations and the Role of Law

Published online by Cambridge University Press:  22 May 2009

Leo Gross
Leo Gross
Affiliation:
A member of the Board of Editors of International Organization, is Professor of International Law and Organization, Fletcher School of Law and Diplomacy, and Visiting Professor of Government, Harvard University.
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Extract

Legal controversy within the United Nations has resulted from the confrontation of the Organization's purposes with the specific rules set forth in the Charter for their implementation. Two sections of the Charter stand out as having produced yet unresolved legal tangles: One is the provision relating to the maintenance of international peace and security through effective collective action; the other is the group of provisions relating to self-determination and human rights. The Cold War and the attempts of the Great Powers to use the UN to attain or defend their policy objectives have shaped the attitude of Members toward the law and the role of law in the more clearly political activities of the UN. Consequently, politico-legal controversy has arisen with respect to the allocation of competences and powers between the General Assembly and the Security Council, the manner of operation of these two bodies, and the distribution of responsibility for “enforcement action’ between the UN and regional organizations.

Type
II. Cooperation and Conflict
Information
International Organization , Volume 19 , Issue 3 , Summer 1965 , pp. 537 - 561
Copyright
Copyright © The IO Foundation 1965

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References

1 Admission of a State to the United Nations (Charter, Article 4), Advisory Opinion of May 28, 1948: I.C.J. Reports 1948, p. 64.

2 See the joint dissenting opinion of Judges J. Basdevant, B. Winiarski, Sir Arnold D. McNair, and John E. Read in ibid., pp. 85, 92.

3 Gross, Leo, “Problems of International Adjudication and Compliance with International Law: Some Simple Solutions’, The American Journal of International Law, 01 1965 (Vol. 59, No. 1), pp. 48–59CrossRefGoogle Scholar.

4 Report of the Rapporteur of Committee IV/2 (Judicial Organization, Legal Problems) to Commission IV (Judicial Organization), Document 933, June 12, 1945, in Documents of the United Nations Conference on International Organization, San Francisco, 1945 (New York: United Nations Information Organization, 1945), Vol. 13, p. 710Google Scholar. Italics added.

5 By Resolution 1991 (XVIII) of December 17, 1963, the General Assembly, in accordance with Article 108, adopted amendments to the Charter providing for an increase in membership of the Security Council from eleven to fifteen and an increase in the requisite majority from seven to nine; the membership of the Economic and Social Council (ECOSOC) would be enlarged from eighteen to 27. These amendments, if entered into force, will change the “balancing power” between various groups of Members but will not impose new obligations upon the Members.

6 Johnson, D. H. N., “The Effect of Resolutions of the General Assembly of the United Nations”, British Year Book of International Law, 1955–1956 (London: Oxford University Press, 1957), Vol. 32, PP. 97–123Google Scholar.

7 One example of this kind of evolution is the practice of the General Assembly of electing two Members for one nonpermanent seat on the Security Council in disregard of the “mandatory” provision of Article 23, paragraph 2. Another is the general long-standing practice of taking lightly the “mandatory” provision in Article 23, paragraph I, that in electing nonpermanent members due regard should especially be paid “in the first instance to the contribution of Members of the United Nations to the maintenance of international peace and security…” One wonders whether the Members which participate in these elections believe they are acting in accordance with the “good faith” principle in Article 2, paragraph 2.

8 Benjamin V. Cohen has pointed out that on October 30, 1946, the United States representative, Austin, Warren R., declared in the General Assembly: “Under the broad and flexible construction of the Charter which the United States wishes to develop, we foresee a great and expanding area of operations for the General Assembly’. (The United Nations: Constitutional Developments, Growth and Possibilities [Cambridge, Mass: Harvard University Press, 1961], p. 16.)Google Scholar

9 Certain Expenses of the United Nations (Article ly, paragraph 2, of the Charter), Advisory Opinion of 20 July 7962: I.C.J. Reports 1962, p. 195.

10 Ibid., p. 197.

11 Ibid., p. 160.

12 The distinction between “economically less developed countries’ which includes all Members other than 26 listed by name has been made by the General Assembly in recent resolutions relating to the financing of the UN Operation in the Congo (ONUC) and the UN Emergency Force (UNEF). See, for instance, Resolutions 1885 (XVIII) of October 18, 1963, and 1983 (XVIII) of December 17, 1963.

13 I.C.J. Reports 1962, p. 197.

14 The Assembly dealt in Resolutions 1802 (XVII) of December 14, 1962, 1721 (XVI) of December 20, 1961, and 1472 (XIV) of December 12, 1959, with the problem of the peaceful uses of outer space.

15 United States Treaties and Other International Acts Series, No. 5646 (Washington, D.C: U.S. Government Printing Office, 1964). See also,Google ScholarSimsarian, James, “Interim Arrangements for a Global Commercial Satellite System’, The American Journal of International Law, 04 1965 (Vol. 59, No. 2), pp. 344–351CrossRefGoogle Scholar.

16 Membership was increased to 21 by General Assembly Resolution 1103 (VI) of December 18, 1956, and to 25 by General Assembly Resolution 1647 (XVI) of November 6, 1961.

17 Article 15 of the Statute reads as follows:

In the following articles the expression “progressive development of international law’ is used for convenience as meaning the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States. Similarly, the expression “codification of international law’ is used for convenience as meaning the more precise formulation and systematization of rules of international law in fields where there already has been extensive state practice, precedent, and doctriner.

18 Rosenne, Shabtai, “The International Law Commission’, British Year Book of International Law, 1960 (London: Oxford University Press, 1961), Vol. 36, p. 142Google Scholar.

19 1) Draft declaration on rights and duties of states; 2) ways and means for making the evidence of customary international law more readily available; 3) formulation of the Nuremberg Principles; 4) question of international criminal jurisdiction; 5) draft code of offenses against the peace and security of mankind; 6) question of defining aggression; 7) reservations to multilateral conventions; 8) draft on arbitral procedure; 9) draft convention on the elimination of future statelessness; 10) draft convention on the reduction of future statelessness; 11-14) draft convention on the law of the sea, comprising territorial waters, the high seas, fishing and conservation of the living resources of the high seas, and the continental shelf; 15) draft on diplomatic intercourse and immunities; and 16) revision of 1958 draft on arbitral procedure. (Yearbook of the International Law Commission, 1958 [UN Document A/CN.4/SER.A/1958/Add.I], Vol. II, p. 109, footnotes 39 and 40.)

20 General Assembly Official Records (16th session), Supplement No. 9, p. 2Google Scholar.

21 General Assembly Official Records (19th session), Supplement No.9, p. 7Google Scholar.

22 Ibid., p. 9.

23 At its 1964 session the Commission adopted sixteen draft articles on the subject of special missions. (Ibid., pp. 98–142.)

24 Ibid., p. 143.

25 The Commission had also omitted articles on the question of access to the sea of landlocked states. This subject was, after a preliminary conference convened by the Swiss government, part of the agenda of the Geneva Conference.

26 See Dean, Arthur H., “The Second Geneva Conference on the Law of the Sea: The Fight for Freedom of the Seas’, The American Journal of International Law, 10 1960 (Vol. 54, No. 4), pp. 751–789CrossRefGoogle Scholar.

27 At both Conferences optional protocols on acquisition of nationality and compulsory settlement of disputes were also adopted.

28 Yearbook of the International Law Commission, 1958, Vol. II, p. 80Google Scholar.

29 Ibid., p. 3. Italics added.

30 General Assembly Resolution 1262 (XIII) of November 14, 1958.

31 Yearbook of the International Law Commission, 1958, Vol. II, p. 2Google Scholar.

32 General Assembly Official Records (6th session), Special Supplement No. 9, pp. 2–8Google Scholar.

33 General Assembly Resolution 375 (IV) of December 6, 1949.

34 See the debate on the work of the Commission in the Sixth Committee at the fifteenth session in General Assembly Official Records…Sixth Committee (15th session, Part I), pp. 9–115. Lauterpacht, H. expressed the view that the work of codification would require several generations in his “Codification and Development of International Law’, The American Journal of International Law, 01 1955 (Vol. 49, No. 1), p. 42.CrossRefGoogle ScholarRobinson, J. found the balance sheet of the Commission discouraging in “The Metamorphosis of the United Nations,’ Recueil des Cours de I'Académic de Droit International, 1958 (Leyden: A. W. Sythoff, 1959), Vol. II, p. 575Google Scholar.

35 yearbook of the International Law Commission, 1938, Vol. II, pp. 109–110Google Scholar.

36 Ibid., p. 108.

37 General Assembly Official Records (19th session), Supplement No. 9, p. 51, paragraphs 37, 38Google Scholar.

38 Rosenne, , British Year Book of International Law, 1960. Vol. 36, pp. 155–156Google Scholar.

39 UN Document ST/LEG/SER.A/213, p. 19. The Convention came into force on April 24, 1964 (UN Document ST/LEG/SER.A/208, p. 14).

40 The Convention on the Territorial Sea and the Contiguous Zone was ratified by 23 states including the Soviet Union, the United Kingdom, and the United States; the Convention on the High Seas by 29 states including the same Great Powers; the Convention on Fishing and Conservation of the Living Resources of the High Seas by fourteen states including the United Kingdom and the United States; and the Convention on the Continental Shelf by 24 states including die Soviet Union, the United Kingdom, and the United States. (Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, 7965 [Department of State Publication 7817] [Washington, D.C: U.S. Government Printing Office, 1965], p. 263). The Optional Protocol of Signature concerning the Compulsory Settlement of Disputes received only one ratification (Haiti) I (UN Document ST/LEG/3, Rev.I, pp. 26–28.)Google Scholar

41 A substantial number of recently emerged states ratified the conventions mentioned above. See also Rosenne, , British Year Book of International Law, 1960, Vol. 36, p. 159Google Scholar.

42 For a reserved opinion, see Stone, Julius, “On the Vocation of the International Law Commission,’ Columbia Law Review, 01 1957 (Vol. 57, No. 1), pp. 16–51CrossRefGoogle Scholar.

43 General Assembly Resolution 375 (IV) of December 6, 1949.

44 Kelsen, Hans, “The Draft Declaration on Rights and Duties of States,’ The American Journal of International Law, 04 1950 (Vol. 44, No. 2), pp. 259–276CrossRefGoogle Scholar.

45 General Assembly Resolution 596 (VI), December 7, 1951.

46 To wit: (a) This principle is identic with Article 2(4); (b) this is identic with Article 2(3); (c) “The duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter’; (d) “The duty of States to co-operate with one another in accordance with the Charter’; (e) “The principle of equal rights and self-determination of peoples’; (f) “The principle of sovereign equality of States’; and (g) “The principle that States shall fulfil in good faith the obligations assumed by them in accordance with the Charter.’ By General Assembly Resolution 1966 (XVIII) it was decided to place principles (d), (e), and (g) on the agenda of the nineteenth session, which was, however, paralyzed by the controversy over the application of Article 19 of the Charter.

47 General Assembly Official Records (18th session), Supplement No. 15, p. 70. The President appointed 27 Members to serve on the Special Committee, including a small number of new states. As Cameroun was unable to attend, the Special Committee, which met at Mexico City from August 27 to October 2, 1964, consisted of 26 membersGoogle Scholar.

48 Report of the Special Committee on Principles of International Law Concerning Friendly Relations and Cooperation Among States (UN Document A/5746, November 16, 1964), pp. 15–18.

49 Ibid., pp. 60, 67, 104, 141.

50 Document 944, Documents of the United Nations Conference on International Organization, San Francisco, 1945 (New York: United Nations Information Organization, 1945), Vol. 6, p. 457, and Vol. 1, p. 614Google Scholar.

51 Report of the Special Committee, UN Document A/5746, p. 163, paragraph 339.

52 Hazard, John N., “New Personalities to Create New Law,’ The American Journal of International Law, 10 1964 (Vol. 58, No. 4), p. 959. For a recent study of coexistence, seeCrossRefGoogle ScholarMcWhinney, Edward, “‘Peaceful Coexistence’ and Soviet-Western International Law,’ The American Journal of International Law, 10 1962 (Vol. 56, No. 4), pp. 951–970CrossRefGoogle Scholar.

53 Resolution 95 (I), contained in UN Document A/64/Add.I, p. 188.

54 General Assembly Resolution 96 (I), December 11, 1946 contained in ibid., p. 189.

55 General Assembly Resolution 260 A (III) of December 9, 1948. For an analysis, see Kunz, Josef L., “The United Nations Convention on Genocide,’ The American Journal of International Law, 10 1949 (Vol. 43, No. 4), p. 738CrossRefGoogle Scholar.

56 General Assembly Official Records (5th session), Supplement No. 12, paragraphs 135, 140. The Assembly in Resolution 260 B (III) referred to the above and requested the International Law Commission to pay attention to the possibility of establishing a criminal chamber in the existing International Court of Justice; the Commission expressed no view on the subject.

57 General Assembly Resolution 489 (V) of December 12, 1950.

58 UN Document A/AC.48/4.

59 See Wright, Quincy, “Proposal for an International Criminal Court,’ The American Journal of International Law, 01 1952 (Vol. 46, No. 1), pp. 60–72CrossRefGoogle Scholar, and Yuen-li Liang, “Notes on Legal Questions concerning the United Nations,’ ibid., pp. 73–88.

60 General Assembly Official Records (5th session), Supplement No. 12, Part III, paragraph 96.

61 General Assembly Official Records (6th session), Supplement No. 9, p. 10Google Scholar.

62 General Assembly Official Records (9th session), Supplement No. 9, Chapter III, pp. 9–12Google Scholar.

63 To wit, Article 2, paragraph 1, states:

Any act of aggression, including the employment by the authorities of a State of armed force against another State for any purpose other than national or collective self-defence or in pursuance of a decision or recommendation of a competent organ of the United Nations.

64 General Assembly Resolution 378 B (V) of November 17, 1950.

65 General Assembly Official Records (9th session), Supplement No. 9. See footnote 63 above.

66 General Assembly Resolution 599 (VI) of January 31, 1952.

67 General Assembly Resolution 688 (VII) of December 20, 1952.

68 General Assembly Official Records (9th session), Supplement No. 11.

69 General Assembly Resolution 895 (IX) of December 4, 1954. For the report of the 1956 session of the Special Committee on the Question of Defining Aggression, October 8-November 9, 1956, see UN Document A/AC.77/L.13.

70 General Assembly Resolutions 897 (IX) of December 4, 1954, and 898 (IX) of December 14, 1954.

71 General Assembly Resolutions 1181 (XII) of November 29, 1957, and 1186 (XII) and 1187 (XII) of December 11, 1957.

72 See Stone, Julius, Aggression and World Order. A Critique of United Nations Theories of Aggression (London: Stevens & Sons Limited, 1958)Google Scholar.

73 In the preamble the Assembly speaks of “the recognition of the inalienable right of all States freely to dispose of their natural wealth and resources in accordance with their national interests.’

74 In the preamble of General Assembly Resolution 1514 (XV) the Assembly expresses the conviction “that all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory.’

75 E.g., General Principle One:

Economic relations between countries, including trade relations, shall be based on respect for the principle of sovereign equality of States, self-determination of peoples, and non-interference in the internal affairs of other countries. This was adopted by 113 in favor, 1 against (United States), with 2 abstentions. (Proceedings of the United Nations Conference on Trade and Development, Geneva, 23 March-16 July 1964, Vol. I: Final Act and Report [UN Document E/OONF.46/141, Vol. I], p. 18.)

76 Thus General Principle Four reads in part:

All countries pledge themselves…to help promote, in developing countries, a rate of growth consistent with the need to bring about a substantial and steady increase in average incomes, in order to narrow the gap between the standard of living in developing countries and that in developed countries.

The vote on this was 98 in favor, 1 opposed (United States), with 17 abstentions. (Ibid.)

77 For a concise summary and evaluation, see Schachter, Oscar, “Legal Problems’ in Swift, Richard N. (ed.), Annual Review of United Nations Affairs, 1963–1964 (Dobbs Ferry, N.Y: Oceana Publications, 1965), pp. £125–127Google Scholar.

78 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Practices Similar to Slavery of September 4, 1956 (UN Document E/CONF.24/23 or UN Sales No. 57.XIV.2) (the Convention came into force on April 30, 1959, upon the deposit of the second ratification; by July 1963, 49 states were parties); Convention on the Political Rights of Women of 1953, to which 39 states are parties; and Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (General Assembly Resolution 1763 A [XVII] of November 7, 1962). On the current state of the work of the United Nations on human rights, see McDougal, Myres S. and Bebr, Gerhard, “Human Rights in the United Nations,’ The American Journal of International Law, 07 1964 (Vol. 58, No. 3), pp. 603–641; and Richard B. Bilder, “The International Promotion of Human Rights: A Current Assessment,’CrossRefGoogle Scholaribid., pp. 728–734.

79 General Assembly Resolutions 1904 (XVIII) and 1906 (XVIII) of November 20, 1963. It may be noted that the Assembly has been preparing a draft declaration on the right of asylum and a draft declaration and draft convention on freedom of information (General Assembly Resolutions 1839 [XVII] and 1840 [XVII] of December 19, 1962).

80 Castaneda, Jorge, “The Underdeveloped Nations and the Development of International Law,’ International Organization, Winter 1961 (Vol. 15, No. 1), pp. 38–48CrossRefGoogle Scholar.

81 Ibid., p. 47; and Lachs, Manfred, “The Law in and of the United Nations,’ Indian Journal of International Law, 1960–1961 (Vol. I), p. 438Google Scholar.

82 See pp. 549–550 above for Mexico City statement of the Special Committee on Principles of International Law Concerning Friendly Relations and Cooperation Among States.

83 See Lissitzyn's, Oliver J.remarks in Swift, p. 128. Additional factors are the absence of a compering doctrine or consensusGoogle Scholar.

84 Operative paragraph 4 of General Assembly Resolution 1803 (XVII) of December 14, 1962.

85 In the Sabbatino case the United States Supreme Court held that consensus was lacking for the old standard and referred specifically to the long-standing opposition of the Communist countries, the declared opposition of many new countries, and the actual practice of states which accepted less than full compensation. (Banco National de Cuba v. Sabbatino, in United States Reports [Washington, D.C: U.S. Government Printing Office, 1964], Vol. 376, pp. 398 ff.)Google Scholar

89 Friedmann, Wolfgang, The Changing Structure of International Law (New York: Columbia University Press, 1964), p. 139Google Scholar.

87 Lissitzyn, in Swift, p. 127.

88 This proposal was made by MrCastaneda, “in order to take into account numerous resolutions and decisions produced by a vast array of international organizations.’ (General Assembly Official Records…Sixth Committee [15th session], (11 9, 1960, p. 79, paragraph 13.)Google Scholar

89 Ibid., p. 115. The full text of the preambular paragraph in which the Ukrainian amendment was incorporated reads as follows:

Considering that the conditions prevailing in the world today give increased importance to the role of international law—and its strict and undeviating observance by all Governments—in strengthening international peace, developing friendly and co-operative relations among nations, settling disputes by peaceful means and advancing economic and social progress throughout the world.

(General Assembly Resolution 1505 [XV] of December 12, 1960.)

90 Jenks, C. Wilfred, The Prospects of International Adjudication (Dobbs Ferry, N.Y: Oceana Publications, 1964), p. 1Google Scholar.

91 ICJ Communiqué No. 65/3, March 15, 1965.

92 See Shabtai Rosenne, “The Court and the Judicial Process,’ above in this volume.

93 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion: I.C.I. Reports 1949, p. 179.

94 Jenks, pp. 210 ff.

95 Schachter, Oscar, “The Quasi-Judicial Rôle of the Security Council and the General Assembly,’ The American Journal of International Law, 10 1964 (Vol. 58, No. 4), pp. 960–965CrossRefGoogle Scholar.

96 ICJ Communiqué No. 65/3, March 15, 1965, p. 3.