International Law Assignment - The Security Council And The International Court Of Justice

UNIVERSITI TEKNOLOGI MARA MALAYSIA BACHELOR OF LEGAL STUDIES (HONOURS) 2009/2010 SESSION

THE SECURITY COUNCIL AND THE ICJ ASSIGNMENT SEPTEMBER 2009

BY KHAIRUL IDZWAN BIN KAMARUDZAMAN / 2006146311 MOHD AKMAL BIN HAMSIDI / 2006146315

PREPARED FOR: BACHELOR OF LEGAL STUDIES (HONOURS) LAW 583 | PUBLIC INTERNATIONAL LAW II | GROUP D PUAN AZLENA KHALID

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QUESTION 1 Critically assess whether the United Nations Security Council is still an effective and impartial organ of the United Nations to deal with matters relating to international peace and security especially in its exercise of its Chapter VII powers. The United Nations Security Council is one of the organs under the purview of the United Nations. The establishment of the Security Council is governed by Chapter V of the Charter of the United Nations. The Security Council consists of fifteen members of the United Nations in which China, France, Russia, The United Kingdom of Great Britain and Northern Ireland, and the United States of America are the permanent members of the Council while ten other members will be elected by the General Assembly to be non-permanent members of the Security Council.1 Article 24 of the Charter of the United Nations states the functions and powers of the Security Council. According to Article 24(1), the primary responsibility of the Council is to maintain international peace and security.2 This Article shows that the Security Council is empowered to act in order to maintain international peace and security. Article 24 further adds that in order to achieve the Council’s primary responsibility, the Council shall act on the member states behalf. In order for the Security Council to discharge its duties, the Council has been given specific powers as provided for in Chapters VI, VII, VIII, and XII of the Charter of the United Nations.3 Whenever the Council acts on behalf of the member states, the member states shall abide by the decision and carry out the decisions of the Security Council. This provision is provided for in Article 25 of the Charter of the United Nations. With regards to Chapter VII of the Charter of the United Nations, the Security Council may take action under situations found in the Chapter including the use of armed force to maintain or restore international peace and security. Before the Security Council could employ armed force to maintain international peace and 1 2 3

Article 23, Charter of the United Nations (1945). Ibid at Article 24(1). Ibid at Article 24(2).

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security, they should first look whether there are any threats to the peace, breach of the peace, or any act of aggression involved.4 If the answer is in affirmative, they shall make recommendations or decide what measures shall be taken in accordance with Article 41 and 42 of the Charter.5 There are two kinds of enforcement action that can be taken by the Security Council under this Chapter. The first kind is measures which do not involve the use of armed force as stated in Article 41 of the Charter. Under this measure, the Security Council may call upon member states to apply any kind of interruption be it economic ties, communication or to the extent of severing diplomatic relations. 6 If this measure is inadequate, the Security Council may take action by air, sea, or land forces and this measure may include a blockade of one of the parties concerned.7 For example, in the case of Falkland affairs of 1982, the Security Council by resolution of 3rd April 1982, called, inter alia, for the immediate withdrawal of the Argentine forces from the Falkland Islands.8 In this case, the Security Council will take into account the failure to comply therewith by the Argentine forces and may take action upon them. By assessing the points above, it can be seen that the Security Council looks like an effective and impartial organ of the United Nations when dealing with matters relating to international peace and security. However, the reality is not as good as what it looks like in theory. Firstly, the Security Council is empowered with negative vote or veto in its decision making. Article 27(3) of the Charter of the United Nations provides that decisions or non-procedural matters are to be made by an affirmative vote of nine members including the concurring votes of the five permanent members.9 However, a negative vote or a veto will prevent the adoption of the Security Council’s Resolution even if the resolution received the required number of affirmative votes.

4 5 6 7 8 9

Ibid at Article 39. Ibid. Starke, J. G., Introduction to International Law (Butterworth London 1984) at 620. Ibid. Ibid. Tunku Sofiah Jewa, Public International Law: A Malaysian Perspective (Pacifica Kuala Lumpur 1996) at 1112.

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This right to veto any resolution granted to the Security Council has raised question over the issue of abusing such right. This has been raised by the publicists and writers at the San Francisco Conference.10 At the Conference, the Four Sponsoring Powers which consist of Great Britain, the United States, Russia and China issued a Joint Interpretative Statement.11 In the Statement, they stressed that the right to veto must be retained.12 This is because any action made by any States might lead to a ‘series of events’ which will eventually require the Security Council to take enforcement action and that such action must naturally attract the right to veto.13 In the very same Statement, the permanent members have also agreed not to use the veto power wilfully to obstruct any conduct that the Security Council might take.14 Nevertheless, between 1945 to 1990, there were a total number of 279 vetoes and this arbitrary use of the veto power has made the United Nations weak, frustrated the Security Council’s enforcement power and proved that the Council is not as effective and impartial as it looks like.15 Another example in which the Security Council’s effectiveness and impartiality can be doubted is when the Security Council was dead-locked. Sometimes, there are situations where the Security Council’s permanent members disagreed with each other.16 When this happens, the Council will be deemed as failed to maintain international peace and security.17 Thus, any matter arises shall be addressed immediately to the United Nations General Assembly.18 The Resolution which provides for this action is known as the Uniting for Peace Resolution 1950.19 This Resolution was initiated during the Korean conflict of 1950 –

10 11 12 13 14 15

16

17 18

19

Note 6 at 615. Ibid. Ibid. Ibid. Ibid. Abdul Ghafur Hamid, Public International Law: A Practical Approach (Prentice Hall Petaling Jaya 2007) at 383. United Nations Security Council Members, available at http://www.un.org/sc/members.asp, accessed on 9 September 2009. Ibid. United Nations General Assembly Resolution A-RES-377(V), available at http://www.undemocracy.com/A-RES(V), accessed on 9 September 2009. Ibid.

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195320 by the United States of America.21 This conflict is one of the testing grounds to test whether the Security Council is effective as a peace enforcement body.22 During this conflict, the North Korean troops crossed by into the South Korean territory.23 The Soviet Union was absent from the Security Council meeting while China was represented on the Security Council by the Nationalist Chinese Government, which was not recognized by the Soviet Union.24 As the Security Council found that there was breach of peace committed by North Korea, they came out with Resolutions recommending assistance to the South Korean authorities. 25 These Resolutions were supported by China, which was represented by the Nationalist Chinese Government, but were taken without the vote of Soviet Union.26 As the United Nations refused to recognize the People's Republic of China's representatives instead of the Nationalist Chinese Government as the legitimate representatives of China, the Soviet Union boycotted the Security Council.27 It was during this time that the Uniting for Peace Resolution was passed with the aim to stop Soviet Union from further uses its vetoes during the course of the Korean conflict.28 By looking at the situation in the Korean conflict, it can be seen that the Security Council is not so effective in executing its duties to maintain international peace and security. This is due to the fact that with the veto power given to the permanent members, any important resolution that might be passed in order to ensure peace, stability and security of any member states might be hampered by just a single veto of any permanent members of the Security Council.29

20

Note 6 at 622. Williams, W., Intergovernmental Military Forces and World Public Order (Oceana Publications London 1991) at 284. 22 Note 6 at 622. 23 Note 6 at 622. 24 Ibid. 25 Ibid. 26 Ibid. 27 Malanczuk, P., Akehurst's Modern Introduction to International Law (Routledge New York 1997) at 375. 28 Note 21. 29 Note 15 at 382. 21

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However, it has been argued that with the adoption of the Uniting for Peace Resolution, the Security Council veto power has become irrelevant.30 This is because, by adopting the Resolution, it was made clear by over two-thirds of the United Nations member states that according to the Charter of the United Nations, the permanent members cannot and should not prevent the General Assembly from taking any action necessary to restore international peace and security in cases where the Security Council has failed to exercise its primary responsibility for maintaining international peace and security.31 In other words, the Resolution seems to suggest that the General Assembly may overrule any vetoes made by the permanent members of the Security Council if two-thirds of the members of the General Assembly things that any action is necessary.32 In another situation, the Security Council action was without precedent. This happens in Congo during the period of 1960 to 1964. Normally, the United Nations Force will be dispatched by way of enforcement action against a State under Chapter VII of the Charter of the United Nations.33 However, in this case, the dispatched of a United Nations Force was done as a military assistant in order to ensure law and order while waiting for the withdrawal of Belgian troops in Congo and not as an enforcement action.34 The United Nations Force stayed in Congo for the same purpose even after the Belgian troops had been withdrawn. In 1962 to 1963, the United Nations Force in Congo cleared roadblocks and established an effective control in the Katanga area. They assumed the character of a rightly so called military enforcement measures.35 Some commentators criticised the action as going beyond the scope of the role merely of peacekeeping which was thought to be envisaged by the earlier Security Council

30

Hunt, C., “The 'Veto' Charade”, available at http://www.zmag.org/content/showarticle.cfm? ItemID=11353, accessed on 8 September 2009. 31 ICISS, “International Commission on Intervention and State Sovereignty: The Responsibility to Protect", available at http://www.iciss.ca/menu-en.asp, accessed on 7 September 2009. 32 “A/58/47 Report of the Open-ended Working Group on the Question of Representation on and Increase in the Membership of the Security Council”, available at http://www.un.org/ga/58/documentation/list0.html, accessed on 6 September 2009. 33 Note 6 at 623. 34 Ibid. 35 Ibid.

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Resolutions.36 This case remains controversial as to the interpretation and application of the provisions of Chapter VII of the Charter of United Nations.37 This situation shows that although some measures do not strictly fall within the scope of enforcement action under Chapter VII, the Security Council may authorized any measures with a view to maintain international peace and security.38 So, this situation may suggest that the Security Council could take an action without being impartial as they may take any actions which are not stated in their scope of enforcement action under Chapter VII.39 In conclusion, although the Security Council tends to be labelled as a peace enforcement body and is said to be an effective organ of the United Nations as well as shall act impartially, some of its actions shows that the Council is not as effective as it should be. In addition, the authorization given for the Council to act beyond the scope provided in Chapter VII as can be seen in the Congo case suggest that the Security Council may also act with bias and not impartial.

36

37 38 39

See article by Professor Leo Gross ’Domestic Jurisdiction, Enforcement Measures and The Congo’, Australian Yearbook of International Law, 1965,137 at 155-157. Note 6 at 624. Starke, J. G., Introduction to International Law (Butterworth London 1984) at 624. Ibid.

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Question 2 Numerous judgments show the International Court of Justice (ICJ) is “bearing in mind the fact that its jurisdiction is limited, that it is invariably based on the consent of the respondent and only exists in so far as this consent has been given.” In the light of the statement above, elaborate and critically analyse the principal means by which a State can accept the ICJ’s jurisdiction under Article 36 of the Statute of the International Court of Justice. The International Court of Justice (hereinafter may be referred to as the ICJ) is the principal judicial organ of the United Nations.40 The ICJ has a special position as an independent court where unlike other organs of the United Nations, the ICJ does not form an integral part of the hierarchical structure of the other five organs of the United Nations.41 According to Article 93 of the Charter of the United Nations, all members of the United Nations are automatically parties to the Statute of the ICJ and as such parties to the Court. The ICJ has a twofold function.42 The first function of the ICJ is to settle legal disputes which arise and submitted to the Court by the member States.43 Another function is to give advisory opinions on legal questions referred to it by specified international organizations.44 Article 36 of the Statute of the ICJ provides for the jurisdiction of the Court to hear contentious cases. Before the ICJ can consider the merits of a case, an applicant State must be able to establish that the Court has jurisdiction to hear the case and that the case is admissible by the Court. Issues of jurisdiction are those which eventually derive from whether the Court has the right and power to consider the case that the State has brought up. Issues of admissibility determine whether the case that has been brought up is one proper for determination when brought before the Court. Therefore, whenever there is a claim by an ‘applicant’ State, jurisdiction depends on showing that the State against which the claim is brought, which is known as the ‘respondent’ State, has consented to the jurisdiction of the Court to hear the case. 40 41

42 43 44

Article 92 of the Charter of the United Nations (1945). Abdul Ghafur Hamid, Public International Law: A Practical Approach (Prentice Hall Petaling Jaya 2007) at 416. Ibid. Ibid. Ibid.

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There are several cases which can be applied to show that the consent of the member States is the fundamental factor to determine the Court’s jurisdiction. One of the cases to illustrate this point is the case of Anglo-Iranian Oil Co case.45 In this case, after the nationalization of the Anglo-Iranian Oil Company by Iran, the United Kingdom brought a claim against Iran before the ICJ.46 Iran objected to the Court’s jurisdiction to hear the case.47 The United Kingdom, on the other hand, asked the Court for interim measures of protection.48 Judges Winiarski and Badawi Pasha, in their dissenting opinion was quoted as saying“…In international law, it is the consent of the parties which confers jurisdiction on the Court; the Court has jurisdiction only in so far as that jurisdiction has been accepted by the parties…”49 This principle is reflected in Article 36 of the Statute of the ICJ. It depends on the international practice in the settlement of disputes as it is an outcome of the sovereign equality of the member States.50 There are four ways in determining whether the International Court of Justice can acquire jurisdiction in a contentious cases.51 They are by a special agreement or compromis, by forum prorogratum, by a compromissory clause in a treaty, or lastly, by accepting compulsory jurisdiction under Article 36(2) of the Statute of the ICJ.52

The first way is by consent given by special agreement or compromis. Article 36(1) of the Statute of the ICJ provides that the jurisdiction of the Court comprises all cases

45 46 47 48 49 50 51

(1952) ICJ Reports, at 102-3. M., Robert, LLB Public International Law Casebook (HLT London 1990) at 235. Ibid. Ibid. Ibid at 236. Note 41 at 420. Ibid.

52

Ibid.

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which the parties refer to it.53 Here, the parties involved in the dispute will submit the disputes to the International Court of Justice and thereby accept the jurisdiction of the Court.54 A special agreement is of a bilateral nature and can be lodged to the Court by either of the States parties to the proceedings or by both of them.55 It must indicate the subject of the dispute and the parties thereto.56 Since there is neither an ‘applicant’ State nor a ‘respondent’ State, in the Court’s publications their names are separated by an oblique stroke ‘/’ at the end of the official title of the case.57 There are several examples in which the member States gave their consent through special agreement. One of the case is Special Agreement between Indonesia and Malaysia relating to the Case concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Malaysia/Indonesia) in which both countries submit the dispute to the ICJ in order for the Court to determine which country has sovereignty over Pulau Ligitan and Pulau Sipadan.58 Another recent case is the Case Concerning Sovereignty over Pedra

Branca/Pulau

Batu

Puteh,

Middle

Rocks

and

South

Ledge

(Malaysia/Singapore).59 Another way where the consent of a State to appear before the Court is given is by forum prorogatum.60 Under this principle, a State may make an application unilaterally to the ICJ against another State which has yet to accept the Court’s jurisdiction in advance with the hope that the would be respondent may take up the invitation.61 In the Corfu Channel case, the United Kingdom brought a claim against Albania before the Court unilaterally in accordance with Article 40(1) of the Statute of the ICJ.62 The United Kingdom argued that the Court had jurisdiction under Article 36(1) of the Statute as being a matter, which is one specifically provided for in the Charter of the United Nations, on the ground that the Security Council had

53

54 55 56 57 58 59

60 61 62

Tunku Sofiah Jewa, Public International Law: A Malaysian Perspective (Pacifica Kuala Lumpur 1996) at 1161. E., Arthur, The International Court of Justice (Kluwer The Hague 1996) at 127. Ibid. Note 53. G., Richard, International Law (Pearson Essex 2003) at 490. (2002) ICJ Reports 625. Cited in Abdul Ghafur Hamid, Public International Law: A Practical Approach (Prentice Hall Petaling Jaya 2007) at 416 . Ibid. Note 57. (Preliminary Objection) (1948) ICJ Reports 15.

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recommended both governments to refer the dispute to the Court by a resolution made under Article 36 of the Charter of the United Nations.63 The ICJ held that although the matter was brought by the United Kingdom unilaterally, the letter send by the Albanian government to the Court’s registrar could be considered as a consent given by Albania.64 The Court further adds that the consent of the other State which did not brought the claim to the Court may be signified expressly or impliedly where if the defendant State defends the case on the merits without challenging the jurisdiction of the Court, that would amount to an implied consent.65 The third way where a State may give consent to the Court’s jurisdiction is by a compromissory clause in a treaty.66 According to Article 36(1) of the Statute of the ICJ, the jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in, inter alia, treaties.67 This Article seems to suggest that member States can agree to accept the jurisdiction of the Court in advance by treaty.68 It is also a general practice that in international treaties, the member States would also include compromissory clause.69 This clause provides that if there are any disputes emanated from the interpretation or application of the treaty, one of the parties to the treaty may refer the matter to the Court.70 The compromissory clause found in the treaty is considered as the usual method of conferring jurisdiction to the Court and the treaty may be a general treaty of peaceful settlement of disputes such as the European Convention for the Peaceful settlement of Disputes,71 or a treaty regulating other matters but contains a compromissory clause.72 The last way in which the member States can be said to have consented to the jurisdiction of the ICJ is by accepting compulsory jurisdiction under Article 36(2) of 63 64 65 66 67 68 69 70 71 72

(Preliminary Objection) (1948) ICJ Reports 15. Ibid. Ibid. Note 41 at 421. Article 36(1), Statute of the International Court of Justice. Note 66. Note 54. Note 41 at 422. Ibid. Ibid.

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the Statute of the ICJ.73 Article 36(2) of the Statutes of the ICJ provides for what is called as ‘compulsory jurisdiction’ of the ICJ.74 The jurisdiction will become compulsory once it is accepted voluntarily. Under Article 36(2) of the Statute, there is no obligation on behalf of the States to make a declaration to show the States’ consent to the jurisdiction of the Court. In addition, the word ‘may’ in Article 36(2) suggests that it is not obligatory upon member States to accept the compulsory jurisdiction.75 What the member States need to do is just to make a unilateral declaration of acceptance and deposit it to the United Nations’ Secretary General. That is why the clause is known as an ‘optional clause’ where it is an option to the member States whether to accept it or not. By applying this clause, the State parties can make advance declaration that if anything happens in the future, the dispute will be brought to the ICJ. To date, there are 63 declarations in force under the “Optional Clause” system in accordance with Article 36(2) of the Statute.76 However, in 1974, France withdrew its declaration as a result of the Nuclear Test77 while the United States of America terminated its declaration in 1985 due to the case of Nicaragua.78 So, among the five permanent members of the Security Council, only the United Kingdom bound by the optional clause.79 Under this Article, members States which accept the optional clause will only do so in relation to any other State accepting the same obligation. This is known as the principle of reciprocity where both parties of the dispute must have made declarations under Article 36(2) and that the Court only has jurisdiction over the subject matter common to both States’ declarations.80 In other words, a state may rely on the reservations contained in another State’s declaration.

73 74

Note 41 at 422. Ibid.

75

Ibid.

76 77 78 79 80

Ibid. (1973) ICJ Reports at 99. (1986) ICJ Reports 14. Note 41 at 423. Note 41 at 423.

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With regards to the reservations, Article 36(3) of the Statute provides that the acceptance of compulsory jurisdiction may be made unconditionally or on condition of reciprocity on the part of several States.81 Several types of reservations are made by virtue of this provision. Some reservations are made which affect the limit of the subject matter over which the Court may exercise its jurisdiction. For instance, the Philippines had made a reservation of disputes concerning its Continental shelf. 82 Another type of reservation is time limit. Most States made reservations and claim it to be under the purview of their domestic jurisdiction. Another type of reservation is self-judging reservation. For example, the Connally reservation of the United States of America to its declaration accepting compulsory jurisdiction of 1946 excluded the Court from interfering with matters which are deemed to be within the domestic jurisdiction of the United States of America.83 This type of reservation is called as self-judging reservation because instead of the court, the State itself will determine whether a matter is a domestic matter or not. In the Norwegian Loans Case,84 France bought a claim against Norway. Both countries had made declarations under Article 36(2) accepting the compulsory jurisdiction of the Court. There was a self-judging reservation in the French declaration. Norway objected to France commencing the action as it claimed that the issue was a matter within Norway’s domestic jurisdiction. Although Norway did not make such reservation, it submitted that it could rely on the fact that France did have such reservation. The Court accepted Norway’s submission and held that it had no jurisdiction.

However, Judge Lauterpacht held that the reservation was invalid as it was contrary to Article 36(6) of the Statute, which states that the Court has jurisdiction to determine whether it has jurisdiction or not.85 Judge Guerrero in his dissenting opinion was quoted as saying81 82 83 84 85

Article 36(3) of the Statute of the International Court of Justice. Note 41. Ibid. (1957) ICJ Reports 9, at 68, 70. Ibid.

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“I do not agree that the Court is without jurisdiction when its lack of jurisdiction is founded on the terms of a unilateral instrument which I consider to be contrary to the spirit and to the letter of the Statute and which, in my view, is, for that reason, null and void.”86 In conclusion, by virtue of Article 36 of the Statute of the ICJ, there are four principal means which a State can accept the ICJ’s jurisdiction and all of these means are as discussed above.

BIBLIOGRAPHY

STATUTES Charter of the United Nations (1945).

86

Ibid.

14

Statute of the International Court of Justice. CASES Anglo-Iranian Oil Co Case (1952) ICJ Reports. Case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) Cited in Abdul Ghafur Hamid, Public International Law: A Practical Approach (Prentice Hall Petaling Jaya 2007) at 416. Case

concerning

Sovereignty

over

Pulau

Ligitan

and

Pulau

Sipadan

(Malaysia/Indonesia) (2002) ICJ Reports 625. Corfu Channel (Preliminary Objection) (1948) ICJ Reports 15. Nicaragua Case (1986) ICJ Reports 14. Norwegian Loans Case (1957) ICJ Reports 9. Nuclear Test Case (1973) ICJ Reports. BOOKS Abdul Ghafur Hamid, Public International Law: A Practical Approach (Prentice Hall Petaling Jaya 2007). E., Arthur, The International Court of Justice (Kluwer The Hague 1996). G., Richard, International Law (Pearson Essex 2003). M., Robert, LLB Public International Law Casebook (HLT London 1990). Malanczuk, P., Akehurst's Modern Introduction to International Law (Routledge New York 1997). Starke, J. G., Introduction to International Law (Butterworth London 1984). Tunku Sofiah Jewa, Public International Law: A Malaysian Perspective (Pacifica Kuala Lumpur 1996). Williams, W., Intergovernmental Military Forces and World Public Order (Oceana Publications London 1991). ONLINE SOURCES

15

“A/58/47 Report of the Open-ended Working Group on the Question of Representation on and Increase in the Membership of the Security Council”, available at http://www.un.org/ga/58/documentation/list0.html, accessed on 6 September 2009. Hunt,

C.,

“The

'Veto'

Charade”,

http://www.zmag.org/content/showarticle.cfm?ItemID=11353,

available accessed

at on

8

September 2009. ICISS, “International Commission on Intervention and State Sovereignty: The Responsibility to Protect", available at http://www.iciss.ca/menu-en.asp, accessed on 7 September 2009. United Nations General Assembly Resolution A-RES-377(V), available at http://www.undemocracy.com/A-RES(V), accessed on 9 September 2009. United

Nations

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Council

Members,

http://www.un.org/sc/members.asp, accessed on 9 September 2009.

16

available

at