I. INTRODUCTION
This article is about the United Nations (UN) and International Law.Footnote 1 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.
When the UN was founded in 1945 there were 51 members. Today, some 70 years on, its membership number stands at 193. The impact of the UN upon international law has been very significant. The UN Charter did not envisage that the UN would be engaged in direct ‘law-making’. But as we know, international law has expanded and developed exponentially during these 70 years, often with a deep involvement of the UN in that reality. Some role regarding international law was, of course, envisaged. Article 13(1)(a) of the Charter provides that the Assembly shall initiate studies and make recommendations for the purposes of: ‘promoting international co-operation in the political field and encouraging the progressive development of international law and its codification’. The Assembly early on established The International Law Commission (ILC)Footnote 2 whose own object is the ‘promotion of the progressive development of international law and its codification’.Footnote 3 Inevitably its work has not been of an even quality and some of the ILC's output has rather disappeared without great trace. Other reports have made a massive and discernible contribution; the work of the ILC on the idea and then the Statute of the International Criminal Court (ICC)Footnote 4 is one such example. The importance of the initiating text prepared by the ILC for the UN Convention on the Law of the Sea (UNCLOS)Footnote 5 cannot be overstated.
Apprehensive of a negative response of UN Member States after years of work, nowadays ILC reports do not usually come forward in the form of draft articles or recommendations for an international conference, intended eventually to result in treaties (the Statute of the ICC is an obvious exception). But the quality of an ILC report may be such that governments and indeed courts will refer to large parts of it as an authoritative statement of international law—and even turn to the text concerned to guide them in relation to particular legal problems. That has been true of the ILC Articles on State Responsibility.Footnote 6
Although the Charter does not envisage ‘law-making’ by the organs of the UN, their work has over the years, on different occasions, been implicated in ‘law-making’. There have been major conferences convened by, or facilitated by, the UN, directed to resolving outstanding international law problems. UNCLOS is a prime example. The UN was the forum for the drafting of the Genocide Convention (ECOSOC Ad Hoc Committee and the Sixth Committee) and the Universal Declaration of Human Rights (Commission on Human Rights). Other treaties negotiated under UN auspices have aimed to fill gaps in the law in the face of recent worrying trends. This was the case with the treaties against hostage taking,Footnote 7 aircraft hijacking,Footnote 8 terrorist bombings,Footnote 9 terrorism financingFootnote 10 and nuclear terrorism.Footnote 11
The days of the mega international treaty-making conference seem over. These exercises are prodigiously time-consuming, complex and resource-draining. In recent years, we have rather seen so-called law-making resolutions (of the General Assembly) attempt to fulfil some of the same functions. These have not been so satisfactory in the sense that it has been harder to reach anything like a global consensus on the content of their terms. In the bargaining—often over months and years—that precede a multilateral treaty text, all efforts are made to find agreement on substance and drafting; and usually there is the possibility for reservations to be made by participating States where that is felt necessary. A declaratory resolution, by contrast, requires no signatures or ratifications. Hence the issue of reservations does not arise. Not infrequently these have been the vehicle by which a political grouping—perhaps of developing States—has seen the opportunity to formulate propositions of law which do not necessarily reflect the views of First World States. General Assembly Resolutions are not normally binding (save on budgetary matters). Should so-called ‘law-making declaratory resolutions’ be regarded differently? The International Court of Justice (ICJ) has offered a general, but clear, answer to this question in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996).Footnote 12 It carefully spelled out the circumstances when an Assembly Resolution may, exceptionally, have normative value:
[I]t is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule.
Thus far this piece has addressed the UN's conscious attempts to articulate (and perhaps develop) international law: the ILC, the formulation of treaty terms, and so-called law-making resolutions.
II. CONTEXT
It now turns to circumstances in which the UN has had an undeniable impact upon international law, but in a less conscious and formal manner. This I think, is best looked at through themes of international law rather than by looking at the work programmes of particular organs.
When the UN was founded it was essentially an inter-State system, with the Charter of the UN at its heart. While this description is still largely correct, it has gradually become recognized that international law is not just a law for States. It impacts upon individuals, corporations, and NGOs. Today, these are regarded as having both certain rights under international law and also international responsibilities. For example, international humanitarian law lays responsibilities upon individuals; human rights law gives rights to individuals; the growing ‘rule of law’ notion specifies that the UN's international financial institutions should insist upon governance standards as a precondition for the receipt of funds. The UN has played its part in all this.
It is easy to let the great battles of the past, involving international law, slip from our memory. But we are thinking back over 70 years of UN existence. The new members of the UN, and the Third World members, collaborated in a great push over what they perceived as ‘economic colonialism’; while others in the UN thought the continuing priority was stability and the protection of international investment. One of the most significant resolutions of the 1960s was General Assembly Resolution 1803 (1962), the Declaration on Permanent Sovereignty over Natural Resources. This Resolution declared inviolable the right to permanent sovereignty over natural resources and the right to nationalize or expropriate on the grounds of ‘public utility, security or the national interest’.Footnote 13 It also laid down the legal obligation for the payment of ‘appropriate compensation’Footnote 14—a departure from the classical formula of ‘prompt, adequate and effective compensation’.Footnote 15 It is hard to recall how bitter the battles were. The concept of permanent sovereignty over natural resources was later reaffirmed in the International Covenants on Economic, Social and Cultural Rights (ICESCR) and on Civil and Political Rights of 1966 (ICCPR), and subsequent General Assembly Resolutions, namely Resolution 3201 (1974), the Declaration on the Establishment of a New International Economic Order. Resolution 3281 containing the Charter of Economic Rights and Duties of States,Footnote 16 radicalized the concept further. By the late 1980s, a largely effective consensus had emerged, essentially reflecting the original 1803 Resolution—but not the later, more radical, Resolutions. We see this applied each week by arbitral tribunals and by the Iran–United States Claims Tribunal.
A further area in which developing countries have had a particular interest in the deepening of international law and the progressive codification of rights and responsibilities is the law of the sea. In 1967, Malta's Ambassador, Mr Arvid Pardo, called for ‘an effective international regime over the seabed and the ocean floor beyond a clearly defined national jurisdiction’.Footnote 17 This set in motion a process that was to last 15 years and saw the creation of the UN Seabed Committee, the signing of a treaty banning nuclear weapons on the seabed,Footnote 18 the adoption of a General Assembly Resolution declaring that all resources of the seabed beyond the limits of national jurisdiction are the common heritage of mankind,Footnote 19 and the convening of the Third UN Conference on the Law of the Sea. The Conference ended with the adoption of UNCLOS, a treaty that pays attention to the special interests and needs of developing countries, including their participation in activities in the AreaFootnote 20 and the provision of scientific and technical assistance.Footnote 21 We think of UNCLOS today as a technical treaty: but at the time it was hard fought, reflecting in particular divergent regional interests. The First World, too, had economic and strategic interests in this codification. The arrival of the detailed provisions of the Convention, now so solidly part of the corpus of international law, is a signal achievement of the last 40 years. Even States that choose not to be ratifying parties live by UNCLOS terms in large part.
III. FIELDS OF INTERNATIONAL LAW
A. Statehood and Recognition
When I glance back at what I wrote in 1963 in my book, Development of International Law through the Political Organs of the United Nations,Footnote 22 on the concept of statehood in UN practice, I see a simple world. It is not that the legal starting point has changed. The definition today of ‘statehood’ is essentially the same as in the Montevideo ConventionFootnote 23 all those years ago. It was already discernible in the 1960s that ‘statehood’ for the purposes of joining a specialized agency was not to be so formally strict. Functionalism, rather than formalism, has its role to play. What has in recent years become clear, I think, is that there is a trend, wherever feasible (and not limited to the work of specialized agencies), to allow participation on the widest basis possible. In recent years NGOs may be heard in the meetings of some human rights treaty bodies, but not in others. The UN has allowed certain participation—but not speaking or voting—by ‘permanent observers’. These may be Non-Member States of the UN that are members of one or more specialized agencies (eg the Holy See), intergovernmental organizations (eg the European Union (EU)) or other entities relevant to the work of the UN (eg the International Committee of the Red Cross (ICRC)). A major contemporary problem is whether the passing by the General Assembly of Resolution 67/19 (2012) in effect recognized Palestine as a State. The Resolution—like much that is able to be agreed in the Security Council or General Assembly—contains ambiguous terms. It accords ‘to Palestine non-member observer State status in the United Nations’.Footnote 24 There has been furious controversy as to whether this established constitutive recognition of statehood—and whether that is indeed a power given to the General Assembly.
At the same time, other bodies may draw legal conclusions from Resolutions such as 67/19. On 2 January 2015, Palestine deposited its instrument of accession to the ICC Statute with the UN Secretary-General. The Secretary-General, in discharging his functions as a depositary of a convention with an ‘all States’ clause, followed the practice of the General Assembly in implementing such a clause, and accepted Palestine's accession to the ICC Statute, and so Palestine became the 123rd State Party to the ICC.Footnote 25 The ICC Prosecutor then stated that the ‘focus of the inquiry into Palestine's ability to accede to the [ICC] Statute has consistently been the question of Palestine's status in the UN. The UNGA Resolution 67/19 is therefore determinative of Palestine's ability to accede to the Statute of the ICC.Footnote 26
It has come to be recognized that entities whose status is uncertain do nonetheless need to be heard within the UN. More recently the issue of the participation of non-State entities in proceedings relating to Advisory Opinions in the ICJ has arisen.Footnote 27 This possibility is envisaged neither in Article 66 of the ICJ Statute nor in Article 102 of the Rules of Court. However, good sense has in recent times occasionally made it sensible, in requests for particular Opinions, that specific entities, not yet States, should be heard in the proceedings concerned. When (earlier than the General Assembly Resolution of 2012 mentioned above), the Court discussed procedural aspects relating to the Wall Advisory Opinion,Footnote 28 it was unanimously thought desirable that Palestine should participate: grounds therefore needed to be found, as these could not be found in Article 66 of the Statute. By an Order of 19 December 2003,Footnote 29 the Court decided, inter alia, that:
In the light of resolution ES-10/14 and the report of the Secretary-General transmitted with the request, and taking into account the fact that the General Assembly had granted Palestine a special status of observer and that the latter was co-sponsor of the draft resolution requesting the advisory opinion, Palestine might also submit a written statement on the question with the above time limit.Footnote 30
In the event, Palestine was given an extended slot of time to present its views in the oral proceedings. All this creativity, based on common sense, met with no objections.
A still more delicate situation arose in the context of the request from the General Assembly for an Advisory Opinion on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (the Kosovo Advisory Opinion).Footnote 31 It was clear that Kosovo should, as a matter of common sense, be allowed to participate in the procedures relating to this Advisory Opinion. At the same time, it was its very status in international law that was the subject matter of the question being asked of the Court. A different approach from that in the Wall Advisory Opinion would need to be found. The Court, in its Order of 17 October 2008, decided that:
[T]aking account of the fact that the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo of 17 February 2008 is the subject of the question submitted to the Court for an advisory opinion, the authors of the above declaration are considered likely to be able to furnish information on the question; and decides therefore to invite them to make written contributions to the Court.Footnote 32
Throughout proceedings, the Court referred communications to ‘the authors of the Declaration’.Footnote 33
In the Kosovo and Wall Advisory Opinions the need to have information from the non-State entity concerned was self-evident. There is no suggestion that these common sense decisions (of marginal legality) have opened the door to, for example, invitations generally to non-State entities to participate, still less individuals.Footnote 34 That much is evidenced by the refusal of the Court to allow the ICRC to participate in the Wall case.
B. Human Rights
The Charter is a treaty between States. ‘Peoples’ are referred to in Article 1 on the Principles and Purposes of the Charter, in the context of the self-determination of peoples. Article 1(3) of the Charter makes mention of respect for human rights and fundamental freedoms. However, the only direct reference to human rights as such is in Article 55 of the Charter.Footnote 35 Beyond that, there is not much in the Charter text on ‘human rights’—though Article 55 makes reference to self-determination, which today we regard as a particular right of ‘peoples’. Yet the drive for the articulation, promotion and enforcement of human rights comes in significant measures from the UN. It is, I think, one of its success stories.
Before the advent of the UN, human rights was an inter-State affair. And their content was limited to an exchange of obligations over the treatment of national minorities. Then came the Universal Declaration of Human Rights—rights baldly stated, with no qualifications. I am always surprised at how often that is invoked today, ignoring all that has subsequently elaborated that text. The Economic and Social Council was instrumental in converting the unqualified pronouncements of the Universal Declaration into two treaties. These were the ICCPR and the ICESCR. From the outset, the former had a monitoring body, the Committee on Human Rights, with the potential of dealing with cases brought by complainants under the Covenant. In recent years a comparable body has been introduced for complaints under the ICESCR. The tasks facing the Optional Protocol partiesFootnote 36 to the latter are manifestly challenging. But the ICESCR Committee has found ways to set variable realistic standards for different rights, and has taken into account what the State concerned said it could realistically undertake to do.
The ICCPR Committee from its inception determined to eschew the politics that surround it, and in an amicable way proceed with the examination of reports and the cases that had become before it. I would like to pay tribute to the late Sir Vincent Evans, the first UK Member on this Committee, who did much to set the tone. I believe the Committee's good reputation remains to this day. As well as the examination of periodic State reports, and handling of cases before it, the Committee early on decided to prepare ‘General Comments’ on specific articles, to elaborate and clarify uncertain points of law. The purist among us will say—have said!—that the Committee's General Comments had no legal standing under the Covenants. But it has to be understood that the Committee had tasks to perform, and in the absence of a strict prohibition upon such action seized the opportunity to further the tasks for which it had been set up. States parties have certainly referred to General Comments when seeking to respond to the Committee, and they have come to be regarded as useful and authoritative.
The phenomenon seems in every way comparable to the ICJ's Practice Directions. These were established because of the insufficiency of other measures envisaged in the Statute and Rules to ameliorate the Court's work. No State has complained that these lack legal foundation; all States go out of their way to comply, and to explain that they are following the Practice Directions in issue. The Court has even had a complaint by one party to a case that the other party was not complying with a relevant Practice Direction.
There are other indications that the Human Rights Committee is having an impact on our understanding of Covenant rights. The ICJ has traditionally been very reluctant to refer to, still less to cite, the opinions and judgments of other courts and bodies. In 2004Footnote 37 the Court was in need of support in its views on freedom of movement. It found it useful to be able to refer to the Human Rights Committee's General Comment 27Footnote 38 as well as the Committee's concluding observations on the report of Israel.Footnote 39 In the Diallo caseFootnote 40 the Court has relied on General Comment No. 15 (on the position of aliens)Footnote 41 and also cited Maroufidou v Sweden,Footnote 42 a Committee Optional Protocol case.
The Court has also had occasion to refer, in its Judgments, to cases arising under the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.Footnote 43
There are some other positive developments. States do not now insist—as they did in the early years of the UN—that Article 2(7) of the Charter (on domestic jurisdiction) precludes any discussion, still less actions by Resolution or otherwise, on alleged human rights violations within their territory. In the last few decades, States asserted to be violating human rights, insist that they are, indeed, complying with human rights obligations and that the position is misunderstood. If the issue of human rights is raised in a State-State visit, no longer does a State rely on Article 2(7) to halt further discussion. Rather, it has ready its own list of alleged human rights violations by the visiting State.
There is another welcome change that I have noticed. All those who, like me, have in the past taught human rights law in a university, will recall the insistence of certain States (often echoed by students of that nationality) that cultural relativity in the matter of human rights was to be respected. This is, of course, a State-based assertion. But it has faded and the insistence that human rights are universal has gained ground. This development, hard won over long years at the UN, is of the greatest importance.
It is not only through the various treaty bodies, with or without Optional Protocols, that the UN has been engaged across the political spectrum in matters of human rights. It is not infrequent that such matters are found within Security Council Resolutions (eg Resolutions calling for the application of human rights in armed conflict,Footnote 44 condemning inhumane practices such as the use of child soldiers,Footnote 45 urging the prevention of sexual violence in armed conflict and post-conflict situations).Footnote 46 On occasion, major human rights violations have been among the cited reasons for military interventions. For example, in response to the escalating, post-election violence against the population of Côte d'Ivoire in late 2010 to early 2011, the Security Council adopted Resolution 1975 condemning the gross human rights violations being committed and reaffirmed that the UN Operation in Côte d'Ivoire (UNOCI) could use ‘all necessary means to carry out its mandate to protect civilians under imminent threat of physical violence’.Footnote 47 The concept of humanitarian intervention still remains controversial as a matter of law, but major human rights violations can undoubtedly colour matters as Resolutions are being negotiated and drafted.
The new Human Rights Council, after a shaky start, is today regarded as doing a decent job. It has championed the protection of human rights defenders and tackled human rights situations at the national level. It has also been a forum for discussion of controversial human rights issues (eg use of drones in counterterrorism operations, mass surveillance).
A special mention must be made of the UN's role in the development of the concept of self-determination. It was the ICJ—a principal organ of the UN—which was ahead of the game. At a time when Member States of the UN were insisting that self-determination was a political aspiration, no more, the Court was clearly articulating—first in the Namibia (South West Africa) Opinion (1971)Footnote 48 and soon after in the Western Sahara Opinion (1975)Footnote 49—that self-determination was a right of all colonial peoples.
But while the concept was brought to fruition in Namibia, the UN has not demonstrated the same determination as regards Western Sahara. The self-determination of the peoples of East Timor was hardly a success story for the UN, which for long years ignored their plight when their territory came under occupation.
While the concept of self-determination had its origins in colonialism, it was gradually realized to be applicable as a continuing human right. In 1966, the texts of the ICCPR and on ICESCR provided that ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’Footnote 50 The famous Helsinki Final ActFootnote 51 of the early 1970s said much the same. Article 1 of the two Covenants speaks of self-determination. Article 25 of the ICCPR is concerned with the detail of how democratic free choice is to be achieved—by periodic elections, on the basis of universal suffrage.Footnote 52 It deals with the entitlement of participation without discrimination in the public life of one's country—whether as a politician, civil servant or voter.Footnote 53 Nor does the African Charter on Human and Peoples' RightsFootnote 54 limit the right that all peoples have to self-determination to situations of decolonization.
The Human Rights Committee (under the ICCPR) has consistently told States appearing before it for examination of their periodic reports that the right to self- determination requires that a free choice be afforded to peoples on a continuing basis. It has also made clear that this is virtually impossible in a one-party State. Even in one-party systems that allow some form of participatory democracy, outcomes are predetermined. It hardly needs saying that minorities have minority rights under Article 27 of the ICCPR. But that does not give that minority a so-called ‘right to self- determination’ and still less a ‘right to secession’.
C. Peacekeeping
Looking back over the life of the UN, it will be recalled that it was intended that Article 43 of the UN Charter would lay down agreements by which the Security Council would be in a position to contribute to the maintenance of international peace and security. The Cold War prevented the conclusion of such agreements between the Security Council and the membership at large, or the Security Council and groups of Members. When the Berlin Wall came down and the Cold War came to an end, the opportunity was not taken to see if Article 43 of the Charter could now be acted upon. So it was not legally possible for the UN to pass Resolutions to enforce the peace militarily. Rather, there came into being the concept of peacekeeping—that is to say, the deployment of UN forces on a voluntary basis, operating on the territory of a State with its consent. These were the essential conditions which Dag Hammarskjöld identified, in the context of the UN Emergency Force (UNEF), long years ago—and they have not changed so much.Footnote 55
The Hammarskjöld preconditions kept to the minimum the dangers to which the early peacekeeping operations were exposed, though even then lives were occasionally lost. I wrote that these early peacekeeping operations owed their success to the fact that the UN itself had no foreign policy agenda to pursue, that it was perceived that the achievement of peace was its only objective. How naïve this now sounds. Aid workers, firefighters, peacekeepers these days are routinely attacked. If they have no agenda other than to help, elements within the host State do. There have been some three and a half thousand fatalities in UN peace operations since 1948.Footnote 56
Attempts by the UN to enforce the peace under the terms of the UN Charter have been wholly exceptional. In the Balkans wars, the UN went through the sad learning curve that ‘robust peacekeeping’ is not an effective substitute for enforcement. Many problems—legal and political—followed. The UN Protection Force (UNPROFOR) was given a totally unrealistic mandate. A major new initiative occurred, designed to involve the North Atlantic Treaty Organization (NATO) in the provision of military support for such operations. Without formal treaty amendment to allow it either to act in circumstances other than an attack on one of its 15 members, or ‘out of area’, (as its Constitution required), NATO adopted the new role of ‘peace support operations’. It was to monitor and enforce the no-fly zone, to offer close air support of UN personnel, and to engage in airstrikes for the protection of designated safe areas. These functions and designations were governed by a series of UN Resolutions.Footnote 57 The celebrated ‘dual request/dual key’ system effectively provided a veto on the use of airstrikes for both sides.
There were innumerable difficulties, but the idea of ‘partnership in peacekeeping’ was then born in Bosnia. Twenty-five years later, UN reports speak of ‘partnership peacekeeping’.Footnote 58 Since 2005, the demand for peacekeeping has hugely increased, and as the Secretary-General's Report of April 2015 observes, ‘the engagement of regional partners in peacekeeping alongside UN operations has become the norm rather than the exception’.Footnote 59 Further, coordination and consultation mechanisms are put in place. In Africa, the engagement of the African Union, as an equal partner, alongside the EU and the UN, is present throughout all phases of a conflict. The specifics may vary, but the underlying structures are well thought through. In the recent cases of Mali and the Central African Republic, the African Union took over certain local operations; and the EU and the UN then supported the deployment of the African Union led operations. There are comparable complicated partnership arrangements in Mali. Tripartite cooperation in Somalia provides a further example. Although—for all the parties involved—these trilateral arrangements entail a huge amount of work for UN lawyers and policy planners in all the organizations, there seems to be a feeling of optimism about this model.
From the international law perspective, it is not certain that we are seeing the regional arrangements envisaged in Chapter VIII of the Charter. The term ‘enforcement’ in Articles 52(1) and 53(1) is not really in evidence. Consent and collective self-defence are the concepts preferred.
Let me conclude this section with a few figures: since 1948, there have been 69 peacekeeping operations; 120 States have contributed uniformed personnel; 125,396 persons are serving in 16 peacekeeping missions at the moment. And, of course, the UN being what it is, as of April 2015, outstanding arrears amount to 2.17 bn dollars.Footnote 60
D. Use of Force
The period 1990–91 seemed to mark our high point of hope: collective enforcement action (even if not quite what was envisaged under the Charter) really could be taken against Iraq in the wake of its invasion of Kuwait. It was a moment of political convergence and hope. Sadly, this was to be short-lived. The years that followed were to be marked by profound differences, political and legal, over the US/UK (and coalition) military action in Iraq. Arguments raged about the ‘revival’ capabilities of Security Council Resolution 678 and other matters. These unhappy times ran their course. And I have tried to discern what I now see around me relating to the use of force by States.
The question of whether paragraph 4 of Article 2 prohibits de minimis acts against another State; whether such acts would be violations of sovereignty but do not trigger a right of military self-defence; what the implications are of the phrase ‘inherent right’ of self-defence in Article 51; if in that clause the phrase ‘if an armed attack occurs’ is to be read literally, precluding anticipatory self-defence; if a right of self-defence is available in the face of armed attack from an occupied territory (on which point the ICJ had one view (with which I disagreed) in the Wall Advisory Opinion in 2004); if a right of self-defence is available against attacks by non-State actors. A further question has been how broadly the ‘self’ in self-defence is to be read. These questions have been with us since 1948. In my view, we still have many views, many opinions, but no definitive answers.
But some very interesting and different issues, and some revisited issues, have been to the fore in recent years. The story begins, I think, with the considerable attention given by States in the wake of the controversy over the UK/US intervention in Iraq, and the correct understanding of Security Council Resolution 678. Clear UN permission became a matter of deep importance. So, for example, the UK Government has made it absolutely plain when seeking parliamentary approval for guaranteeing a no-fly zone in Libya, that UN permission had been sought and obtained.Footnote 61 Security Council Resolution 1973 (2011) authorized Member States that had notified the Security Council to take ‘all necessary measures’ (generally understood to mean the use of force) to protect civilians and civilian populated areas while excluding any occupation of Libya.
From summer 2014 the UK, along with the US, Jordan, Qatar and up to 20 other States, has been involved in the attempt to push back ISIS in Iraq. Some of the other States have not been directly involved militarily, their contribution to action against a body widely seen as the embodiment of evil, has been to allow overflights, refuelling, etc. There has been no UN resolution authorizing this, notwithstanding the broad consensus in the UN about the activities of ISIS. Reliance on the invitation of Iraq has been the cited legal basis—though the UK has also referred to Article 51 of the Charter and reported to the Security Council.Footnote 62 A Security Council Presidential Statement of 19 September 2014Footnote 63 urged the international community to strengthen support for the Government of Iraq as it fights ISIS, but none of the coalition States seem to have relied on this.
The United States has extended its aerial bombardment to Syria itself, where ISIS holds important positions. The United States relies on individual self-defence and on collective self-defence of Iraq. There has been no UN Resolution on this (and the attempt of Prime Minister Cameron to participate in humanitarian intervention in Syria triggered by reports of the use of chemical weapons by Assad failed to secure parliamentary support; which he viewed as the end of the matter). It is interesting that the Legal Counsel of the UN has stated that, in his view, these actions in Syria are justified in international law under collective self-defence.Footnote 64
I note some other interesting things as I look around at examples of the use of force today. The first is that such action is now highly diversified. It is no longer limited to the ‘Big Few’. The era of the US as the ‘world's policeman’ is no longer wanted either by the US or by other States. So the void is being filled by various regional actors. This is especially the case where there are perceived threats of terrorism or destabilization and major human rights violations by such groups as Al-Shabab and Boko Haram. So Chad and Niger entered Nigeria, while Goodluck Jonathan was President, to attack Boko Haram and locate persons taken. There was no UN Resolution and insofar as a legal position was articulated, that seems to have been implied consent by Nigeria. Under its new government, Nigeria itself is leading the action against Boko Haram, and the attempt to locate hostages.
In Mali, France responded to the plight of its former colony in the face of terror being wrought by terrorists in its northern provinces, and the fearful suffering of civilians. In December 2012, Security Council Resolution 2085 authorized the deployment of an African-led International Support Mission in Mali. However, one month later, before that Force could be assembled and deployed, rebel groups with the support of Al-Qaeda in the Islamic Maghreb advanced southwards in Mali. The transitional authorities in Mali requested French assistance. Other African States also intervened and the deployment of the African-led force was accelerated. France relied on the consent of the Malian government and no fresh Security Council authorization was issued. The mandate of the African-led force was later transferred to the UN Multidimensional Integrated Stabilization Mission (MINUSMA) established by Security Council Resolution 2100 in April 2013. That mandate was renewed in Resolution 2164 (2014).
A complex series of arrangements have also been employed in the Central African Republic (CAR). The African Union set up an African-led International Support Mission in the CAR (MISCA) in July 2013. The Security Council authorized the deployment of MISCA in Resolution 2127 (2013) with a mandate to take all necessary measures to, inter alia, ‘contribute to the protection of civilians and the restoration of security and public order, through the use of appropriate measures’. That Resolution also authorized French forces to ‘to take all necessary measures to support MISCA in the discharge of its mandate’. By Resolution 2134 (January 2014), the Council authorized the deployment of an EU force in CAR. On 10 April 2014, the Security Council, by its Resolution 2149 (2014), established the UN Multidimensional Integrated Stabilization Mission in the CAR (MINUSCA) which took over the mandate of MISCA on 15 September 2014. In that same Resolution, the Council authorized French forces to use all necessary means to provide operational support to elements of MINUSCA from the date of adoption of the Resolution, at the request of the Secretary-General.
We have also seen military actions that are somewhat different, legally speaking. In 2011, troops from a number of Gulf States, including Saudi Arabia and the United Arab Emirates (UAE), entered Bahrain to help in the control of protests: this was a designated invitation under the auspices of the Gulf Cooperation Council. No further authorization was sought at the UN.
The United Kingdom has recently sought to support action against smuggling of migrants in the Mediterranean Sea. This has achieved support at the EU level, with the EU Foreign Affairs Council establishing in May 2015 an EU military operation called EUNAVFOR MED.Footnote 65 Thus far there is no UN Security Council Resolution and differences of view are appearing within the Security Council. But the preambular paragraph 8 of the EU Council decisionFootnote 66 suggests that the EU may rely on the consent of the territorial State.
There has been recent Saudi action in Yemen, in the face of Houthi advances there. Sudan and Qatar are also participants, as are the UAE and Kuwait; and the US has a naval presence offshore. This appears to be at the invitation of deposed President Hadi. A letter to this effect was sent by the participants to the UN Security Council.Footnote 67 Security Council Resolution 2216 (2015) notes both this letter and a request from Yemen. The Resolution reaffirms support for the legitimacy of the deposed President Hadi.
Finally, looking back over the ‘post-Iraq’ period, we must note the Russian action in Georgia, which culminated in the claimed statehood of South Ossetia and Abkhazia within Georgia's borders. The inevitable prospect of a veto has meant there was no Security Council Resolution dealing with this event. Only Russia, Nicaragua, Venezuela and Nauru have recognized the statehood of these entities. And mention must be made of the incorporation of Crimea into the Russian Federation, and the military uncertainties and human misery in East Ukraine.
So we seem to be in an era of decentralized use of force by unusual actors; with ‘consent’ starting to assume a major role again as an invoked ground, along with collective self-defence. The high degree of political convergence as regards particular actions has meant that legal controversy at the UN has been avoided.
IV. INTERNATIONAL ADJUDICATION
I now turn to say a few words about the ICJ—it is, after all, a principal organ of the UN.
In 1966, the International Court stood almost alone as a vehicle for resolving international law disputes. But the past two decades, in particular, have seen the burgeoning of international courts and tribunals equipped to deal with disputes that might arise under the growing reach of international law. The ICJ is now joined by regional human rights courts, by international criminal courts and tribunals, by courts which are part of treaty systems for regional economic integration, by a Tribunal for the Law of the Sea, by decision-making panels on trade and very many more. The anxiety about possible incoherence in judicial decision-making has not materialized.
Of course, the theme of this article is not about the Court as such, but about the impact of this principal organ of the UN upon international law over the last 70 years. A court is, of course, meant to apply the law and not develop it. But as every law student knows, both the interpretation of texts, and the application of law to new facts, does in reality entail the development of the law. I confine myself to a few brief examples that have seemed of importance and interest to me in my time at the Court. In the Qatar v Bahrain caseFootnote 68 a question arose (in the context of delimitation) as to whether low-tide elevations could be appropriated by the nearer coastal State. There was no existing answer to this. The UNCLOS texts did not address the point. So the Court, with the policy implications of its finding well in mind, simply pronounced that low-tide elevations could not be appropriated. In the Congo v Uganda case,Footnote 69 the Court has occasion to make clear that part of a country could meet the legal conditions for occupation (with all the consequences in law that followed), while the larger part of the country remained unconquered. With the so-called Genocide Case (Bosnia and Herzegovina v Serbia and Montenegro),Footnote 70 the Court took the opportunity to pronounce on virtually every matter that could arise under the Genocide Convention, in the belief that substantive claims relating to genocide would be very, very rare, and that this pedagogical opportunity should be taken. In a series of cases—including Cameroon v Nigeria,Footnote 71 and Romania v Ukraine Footnote 72—the Court has systematically laid out, in a scientific and detailed way, the correct methodology for determining a delimitation of maritime spaces; and in so doing, the years of harmful subjectivities of the ‘equitable and fair’ pronouncements in the North Sea Continental Shelf cases,Footnote 73 were finally undone. Yet the recent Peru v Chile Footnote 74 judgment shows that there will always remain something on which different views can be held, however.
V. UNCERTAIN DEVELOPMENTS
Finally, there are some legal ‘developments’ whose status has, I think, to be acknowledged as uncertain.
The first is Responsibility to Protect (R2P). In late 2001 the Canadian government created the International Commission on Intervention and State Sovereignty, which released a report on Responsibility to Protect.Footnote 75 The African Union later endorsed the idea and put in its founding Charter of 2000 that the ‘protection of human and peoples’ rights'Footnote 76 would be a principle objective of the AU and that the Union had the right ‘to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity’.Footnote 77 The status of this concept has from the outset been uncertain. In his recent report on R2P, the Secretary-General confirmed that R2P does not impose an obligation on the Security Council to act—rather, the doctrine and the Charter give the Security Council ‘a wide degree of latitude to determine the most appropriate course of action’,Footnote 78 (which could include inaction due to a veto being exercised).Footnote 79
The Council's action with regard to Libya in 2011 has highlighted the controversy over R2P and perhaps made States more cautious about its invocation. Resolution 1973 was hailed in certain circles as a ‘successful first true test’ of R2P, but the Resolution makes no express reference to the doctrine in its operative provisions.Footnote 80 In the aftermath of Gaddafi's fall, some Member States have argued that non-coercive measures were not given sufficient time to have an impact on the ground and that those charged with implementing Resolution 1973 exceeded the mandate given by the Council.Footnote 81 Former Joint Envoy for Syria, Kofi Annan, has observed that Russia and China in particular feel that they were ‘duped’ by Council's action on Libya in 2011: they had agreed on a Resolution that they believed authorized limited measures, which was then transformed into a process of regime change.Footnote 82
Finally, I would mention something less well known: the legal status of international human rights obligations within the component parts of a disintegrating State. The Human Rights Committee (of which I was then a member and Fausto Pocar the Chairman) was faced with exactly this problem in the Balkans in the early 1990s. The Human Rights Committee, as a routine part of its work, calls in States Parties to the ICCPR, for an examination of their report to the Committee. It was now faced with the possibility that instead of one State within the reach of its oral examinations (Yugoslavia), there would be three States lost to human rights monitoring. After careful consideration, the Committee articulated the following principle: just as treaties relating to territory passed to the new State in the event of a State succession, so international human rights treaty obligations passed to the new State in comparable circumstances. This was, we knew, a novel proposition but a plausible one.Footnote 83 The States concerned (Bosnia and Herzegovina, Croatia and Serbia and Montenegro) accordingly received a notification that, under this principle, they were shortly due to appear before the Committee for examination. They duly came on the specified date; and at the opening of those meetings, the Chairman repeated the legal grounds on which the examination was now taking place. The States have continued routinely to appear before the Human Rights Committee for examination. Some of them made doubly sure of the legal ground by adhering de novo to the Covenant. Others did not, thus impliedly accepting the ‘human rights succession principle’ that the Committee had articulated. It seemed courteous to make contact with the Legal Counsel of the UN over this matter. So—and before the examination of the States concerned—I went to New York for a meeting with Carl Fleischhauer. I knew him then much less well than I was later to know him when we both became Judges of the ICJ. He seemed somewhat bemused when I told him of the legal position the Committee was robustly taking, but never said it was incorrect, or should not be done.
Later, that very matter was to arise again in an entirely different context: it was one of the jurisdictional grounds relied on by Bosnia and Herzegovina in the case it brought against Serbia and Montenegro, in the so-called Genocide Case of 1996.Footnote 84 By then I was on the Bench of the Court. Because of my involvement in the Human Rights Committee decision (which was being relied on by counsel), I thought it right to recuse myself from the jurisdictional phase of that case. In the event, the Court found that it had jurisdiction, without pronouncing on this matter. So I suppose the ‘jury is still out’ on this one—but when much water has passed under a bridge, it becomes very, very hard to push it back.
VI. FINAL THOUGHTS
I have tried in this article to take a look, through time, at the impact the UN has had on various international law issues. It is a story that never ends.
