The UN Charter Cannot Support GA Resolution 377
Eli. E. Hertz, MYTHS AND FACTS
The Jerusalem Post published on March 25, 2011: Israel “only just found out” about Resolution 377. This “just found topic” has been covered by me in various publications since 2004. The responsibility to act on it was and still is the business of the Government of Israel and its UN representatives.
ICJ – Bypassing the UN Security Council
In an odd conclusion, the ICJ ‘found’ in this case [Advisory Opinion] a “failure of the Security Council to discharge its responsibilities [E.H., without any reference to law] then in defiance of the limited powers delegated to it by the UN Charter, by-passed the Security Council’s powers and responsibilities.
Bypassing the Security Council is part of a broader campaign that should alarm all members of the Security Council, and the United States in particular. Nabil Elaraby, the Egyptian member of the ICJ Bench, openly advocated two main vehicles for institutionalizing it:
“The United Nations membership should, in my view, address ways and means to render the Security Council (a) accountable to the General Assembly, and (b) subject to the possibility, however remote, of a judicial review process.” And according to Gregory Khalil, the PLO legal advisor in the security barrier case, the ICJ consciously sought to engage the United States in a “Tango of mutual deterrence” and “chart a path for the international community to counter the United States “veto power.” The significance of the ruling cannot be overstated, he underscores: It challenges the power of the veto and the Security Council’s management of “threats to world peace,” using the International Court of Justice’s interpretations of the rule of international law in matters of ‘threats to world peace’ coupled with claims that the international community is obliged to support its rulings and calling for sanctions – decisions that under Chapter VII of the UN Charter is the sole prerogative of the Security Council. Khalil calls this strategy “vetoing the veto.”
The “Advisory Opinion” signed by the Court’s president, Shi Jiuyong from China, constitutes a profound corruption of its mission and one with seismic implications for the future of international law. It threatens the security of America and its allies on three levels: first, in its groundbreaking attack on the ‘right to self-defence,’ proscribing an almost blanket prohibition of use of lawful force. Second, it erroneously adopts the exclusive powers granted to the Security Council by the United Nations Charter, a move that will render the Security Council ineffective, and third, in the willingness of the Bench to allow its chambers to become a political instrument and to abandon all semblance of fairness or professionalism, all for political gain.
The threats to the free and democratic states consequently demand a far more serious, systematic and frank response, including a willingness to challenge the competence of this Court. Attempts to shield the International Court of Justice from this disgrace out of concern for its perceived reputation and effectiveness are short-sighted. At all too many junctures it appears that the ICJ’s conclusions are based solely on ‘gut feelings’ and unsubstantiated assumptions – almost taking a leap of faith based on a mixture of personal and collective prejudice and popular opinion.
The Legal effect of UNGA Resolution 377
Article 10 of the United Nations Charter States:
“The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters.”
The UN Charter does not grant the General Assembly or the International Court of Justice (ICJ) the authority to enact or amend international law. The General Assembly actually lacks the competence to enact general international law. One may easily reach the conclusion that UN member states act on the basis of political concerns, not on fair or legal ground.
Professor, Judge Schwebel, former President of the International Court of Justice stated:
“The General Assembly of the United Nations can only, in principle, issue ‘recommendation’ which are not of a binding character, according to Article 10 of the Charter of the United Nations.”
Schwebel also cited Judge Sir Hersch Lauterpacht, a former member judge of the International Court, who stated:
“The paramount rule of the Charter is that the General Assembly has no legal power to legislate or bind its members by way of recommendation”
Yet another former ICJ judge, Sir Gerald Fitzmaurice, was as resolved in rejecting the “illusion” that a General Assembly resolution can have “legislative effect.” Referencing Professor Arangio-Ruiz’s work: “The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations,” Professor Julius Stone called it “perhaps the most comprehensive and up-to-date treatise on this matter” … he [Professor Arangio-Ruiz] is led to conclude that the General Assembly lacks legal authority either to “enact” or to “declare” or “determine” or “interpret” international law so as legally to bind states by such acts, whether these states be members of the United Nations or not, and whether these states voted for or against or abstained from the relevant vote or did not take part in it.
Article 12 of the United Charter states:
“While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.
“The Secretary-General, with the consent of the Security Council, shall notify the General Assembly at each session of any matters relative to the maintenance of international peace and security which are being dealt with by the Security Council and shall similarly notify the General Assembly, or the Members of the United Nations if the General Assembly is not in session, immediately the Security Council ceases to deal with such matters.”
The free and democratic world needs to ‘rein in’ the appetite of the General Assembly and to demand of the International Court of Justice not to step beyond its mandate, and respect and obey international law as set forth in the United Nations Charter.