ELI HERTZ: THE UN CHARTER DOES NOT SUPPORT GA RESOLUTIONS

Posted By on April 6th, 2011

The UN Charter Does Not Support GA Resolutions
The most recent unlawful use of General Assembly Resolution 377 was in 2004 when it called upon the International Court of Justice (ICJ) for an advisory opinion regarding the construction of the fence to stop Palestinian Arab terrorists from infiltrating into Israel.

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ICJ – Bypassing the UN Security Council

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 [2004-2006], and today, Egypt’s Foreign Minister, 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.

The Legal effect of UNGA Resolution 377

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.

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.

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