The United Nations as a place of choice for the development of international law

The report of the Secretary-General seeks to address a wide variety of issues under four broad headings, namely: strengthening global governance; focusing on the future; renewing the social contract; and ensuring a United Nations fit for a new era. As far as international law is concerned, his report calls for international cooperation that is guided by international law, noting that “consideration could be given to a global road map for the development and effective implementation of international law”.Footnote ¹²

Unlike other subjects mentioned in the UN75 Declaration and in “Our Common Agenda”, international law is not, as such, a thematic area entailing programmatic activities. Rather, it is a framework and a tool, which is applicable to most of the questions discussed under “Our Common Agenda”. In other words, the development of international law is not just about the adoption of new normative instruments, but also about processes. Normative development also occurs through the establishment, the activation and/or the use of a set of tools and processes that make possible the preparation of new legal instruments and facilitate the implementation of existing international law. The Secretary-General has a specific role to play in this regard.

“Our Common Agenda” singles out four specific actions as part of a global road map for the development and effective implementation of international law that the Secretary-General could take: (i) encouraging more States to ratify or accede to treaties of universal interest such as on disarmament, human rights, the environment and penal matters, including those for which the Secretary-General is the depositary (of which there are over 600); (ii) urging States to accept the compulsory jurisdiction of the International Court of Justice and to withdraw reservations to treaty clauses relating to the exercise of its jurisdiction; (iii) assisting States in identifying and addressing pressing normative gaps; and (iv) understanding reasons for non-compliance, drawing on the Secretary-General's role related to compliance mechanisms.Footnote ¹³ In this regard, it is important to recall that some international humanitarian law treaties, and in particular the Additional Protocols to the Geneva Conventions, which are also of universal interest, have not been universally ratified.

Regarding the questions of normative gaps (iii) and of compliance with existing legal regimes (iv), the procedural component is particularly relevant, as the Secretary-General can encourage discussions on normative developments, bearing in mind that the lack of compliance with existing legal regimes does not necessarily mean that new ones are required. Here, too, it appears that the Secretary-General is in a unique position to call upon States to comply with their obligations under international law, and to resolve their disputes in accordance with international law. Most Secretaries-General have done so in a wide range of contexts. Their calls, and reminders, for States’ compliance with international law have not only been made publicly but have also been made away from the public eye and to those directly concerned as part of the behind-the-scenes political activity of the Secretary-General. In addition, when encouraging discussions on normative developments, a number of considerations need to be assessed, including the risks of unravelling existing agreements on specific issues.

As part of this road map for the development and effective implementation of international law, “Our Common Agenda” also notes that “[s]tates could consider holding regular inclusive dialogues on legal matters of global concern at the General Assembly”.Footnote ¹⁴ The primary role of States in the development of international law is implicitly acknowledged, and the role of the International Law Commission, established by the General Assembly, is explicitly welcomed, recalling that pursuant to Article 1(1) of its statute, the International Law Commission is entrusted with the mandate of making recommendations for the purpose of “encouraging the progressive development of international law and its codification”.Footnote ¹⁵ Other United Nations intergovernmental bodies, although not specifically mentioned in the Common Agenda, like the Human Rights Council or the United Nations Commission on International Trade Law (UNCITRAL), also contribute to normative developments in specific thematic areas and in accordance with their mandates.

These references, both in the UN75 Declaration and in the report of the Secretary-General, to the development of international law within the United Nations framework reinforce the position of the United Nations as a vital forum for the development of international law. For the last seventy-seven years, the United Nations has demonstrated indeed its unique role both as a place where international law, particularly in the form of multilateral treaties, is developed, and as an actor directly participating in the making and interpretation of international law.Footnote ¹⁶ The United Nations continues to offer a unique platform and international law framework to address contemporary global challenges being, as it is, the only universal intergovernmental organization with a mandate to maintain international peace and security. It is also the only universal platform where to discuss legal questions of global concern in line with Article 1(4) of the Charter, which provides that one of the purposes of the United Nations is to be a “centre for harmonizing the actions of nations”.Footnote ¹⁷ Within the United Nations, the Sixth Committee, open to all Member States, is the primary forum for the consideration of legal questions in the General Assembly.

The ongoing discussions within United Nations intergovernmental bodies on a number of issues of global concern, such as the use and misuse of information and communication technologies,Footnote ¹⁸ are an example of Member States’ commitment to the United Nations as a place of choice. Also, the discussions in the framework of the Intergovernmental Conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdictionFootnote ¹⁹ underscore the importance of the United Nations as a unique forum specifically for the development of international law.

In some cases, States have held negotiations outside the United Nations framework. In particular, related to international humanitarian law and most particularly to conventional processes on disarmament, the “Ottawa process” relating to anti-personnel mines and the “Oslo process” regarding cluster munitions both took place outside of the framework of the 1980 Convention on Certain Conventional Weapons.

To sum up, the practice of the United Nations, including the most recent one, seems to align with the UN75 Declaration and “Our Common Agenda”, which both favour a robust and international law-based approach to international relations. Such statements and practice also provide some indications regarding the actual role of international law – including international humanitarian law – for multilateralism in contemporary international relations.

International law as a tool for multilateralism

In the UN75 Declaration, Member States stated, among others, that: “[o]ur challenges are interconnected and can only be addressed through reinvigorated multilateralism” and that “[m]ultilateralism is not an option but a necessity as we build back better for a more equal, more resilient and more sustainable world”, concluding that “[t]he United Nations must be at the centre of our efforts”.Footnote ²⁰

The Secretary-General of the United Nations, in his Global Wake Up Call, had already remarked that:

In spite of the challenges that multilateralism is facing, it is important to differentiate them from a supposed general decline in respect for international law. Such reflections are not novel and have been heard before, for instance, in the 1960s and 1970s, when the newly independent States were challenging what had formerly been thought of as established international law; also, after the terrorist attacks of 11 September 2001 (9/11), and after the military intervention in Iraq in 2003. While the decline or decreased use of the International Court of Justice has also been declared in the past, States from all regions of the world continue to initiate proceedings before the Court in a bid to seek the peaceful settlement of international disputes, whether stemming from historical or contemporary crises. In the last decade alone, thirty new contentious cases have been commenced before the Court.Footnote ²²

Also, it is important to recall that the development of international law has taken different forms and that it cannot be only measured in terms of numbers of treaties adopted. In a number of instances, States have preferred to contribute to its development through soft-law instruments, among others in the field of international humanitarian law.

Those who challenge established rules do so not by rejecting the notion that there is any international law, but by articulating what they claim the law to be, or at the very least what they think the law should be. Others respond, also in the language of international law. In other words, existing rules are reaffirmed or challenged, or they change and adapt, but there is always international law. Thus, what is sometimes perceived as a crisis of international law is often “simply” a lack of consensus among Member States about the current state of the law or about the direction in which it should develop. The practice within the Sixth Committee of the General Assembly of taking decisions by consensus should be recalled. In this regard, the Secretariat has noted that:

Also, international law is, at the very least, the basic common language that States use when they talk to each other. If there is a crisis of multilateralism, then, that does not imply a crisis of international law, or that international law is no longer an appropriate tool for the conduct of international relations. International law actually provides stability, even when and where other processes and tools fail.