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Autointerpretation, Competence, and the Continuing Validity of Article 2(7) of the UN Charter

Published online by Cambridge University Press:  27 February 2017

J. S. Watson
J. S. Watson*
Affiliation:
Mercer University School of Law
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Extract

With the failure of the United Nations to control the use of force by states to the degree that many had wished for, the attention of many commenators shifted to what was hoped would be more fertile ground—the protection of human rights, self-determination, and other areas in which the organization might play a supranational role. In discussing the development of the supranational aspect of the organization, attention is invariably directed to Article 2(7) of the Charter which is, of course, the current symbol of sovereignty. Since most visionaries are frustrated by the concept of sovereignty, it is not surprising that this article has received little sympathy on the part of many who are more concerned with ends than means. Yet it is doubtful whether the concept may be dismissed summarily and, since it plays such a key role in so many of the allegedly developing fields of international law, one would do well to consider how Article 2(7), properly interpreted, affects the legal assumption on which supranationalism is based.

Type
Research Article
Information
American Journal of International Law , Volume 71 , Issue 1 , January 1977 , pp. 60 - 83
Copyright
Copyright © American Society of International Law 1977

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References

1 For a thorough analysis of the problem of autointerpretation generally, and the distinction between autodecision and autointerpretation in particular, see Gross, States as Organs of International Law and the Problem of Autointerpretation, Law And Politics In The World Community 59-89 (G. A. Lipsky, ed.. 1953).

2 Consent is so basic to international law that Schwarzenberger describes it as being “coterminous with the existence of universal international law itself.” Schwarzenberger, , The Fundamental Principles of International Law, 87 Rec. Des Couhs 195 (I, 1955).Google Scholar

3 Article 15(8), the provision in the Covenant equivalent to Article 2(7), stated: If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement.

4 Preuss, Article 2(7) of the Charter of the United Nations and Matters of Domestic Jurisdiction, 74 Rec. Des Couhs 553, 573 ( I , 1949). (It should be noted that “Chapter VIII (a/7) “ is Article 2(7) in its Dumbarton Oaks form.)

5 6 United Nations ConferencE On International Organization, San Francisco, 1945, Documents, 509 (hereinafter UNCIO Docs.) Seven other attempts are noted by H. Lauterpacht in International Law And Human Rights 182, n. 35 (1950).

6 8 UNCIO Docs. 392.

7 13 UNCIO Docs. 709-10

8 H. Lauterpacht, supra note 5, at 181.

9 13 UNCIO Docs. 709.

10 See text accompanying notes 30 & 31 infra.

11 Ross, The Proviso concerning “Domestic Jurisdiction” in Article 2(7) of the Charter of the United Nations, 2 Osterr. Zeit. Offen. Recht 562, 570 (1950).

12 Id.

13 R. Higgins, The Development Of International Law Through The Political Organs Of The United Nations 67 (1963). Other examples of such reasoning may be found in Bains, State Sovereignty and International Jurisdiction: The United Nations Experience, 3 Indian Pol. Sci. R. 101 (1968-69); and Gilmour, Article 2(7) of the United Nations Charter and the Practice of the Permanent Members of the Security Council, [1967] Australian Y.B. Int. Law 153.

14 ( 2 ) GAOR (52nd plen. mtg.) 1061 (1946). For the purposes of the discussion below in connection with customary interpretation of the Charter, the twenty-one negative votes are significant.

15 2 SCOR No. 84 (195th mtg.) 2224 (1947).

16 R. Higgins, supra note 13.

17 For more detailed discussion of the problems of adjudication by the ICJ, see Gordon, , The World Court and the Interpretation of Constitutive Treaties, 59 AJIL 794 (1965).CrossRefGoogle Scholar

18 This is clearly the outcome of adopting Lauterpacht's rigid definition of “intervention“ in Article 2(7) as meaning only “dictatorial interference.” H. Lauterpacht, supra note 5, at 167-70. In any event, if only dictatorial interference were meant, there would be no need for the exception to the article which excludes its operation from Chapter VII enforcement measures, the only available instance of “dictatorial interference” in the Charter. Furthermore Preuss has made it adequately clear that the meaning intended was much broader. Preuss, supra note 4, at 583.

19 Gross, Domestic Jurisdiction, Enforcement Measures and the Congo, [1965] Australian Y.B. Int. Law 137, 143.

20 H. Kelsen, The Law Of The United Nations 783-84 (1951).

21 13 UNCIO Docs. 710. 22 The exception in the last sentence states, ”… but this principle shall not prejudice the application of enforcement measures under Chapter VII.“

23 Lauterpacht, H., Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties, 26 BYIL 48, 73-74 (1949).Google Scholar

24 Advisory Opinion on Certain Expenses of the United Nations, [1962] ICJ Rep. 150, 230.

25 Schwarzenberger indicates that it might be argued that consent is the fundamental principle of international law. Supra note 1, at 288-89.

26 Vallat, , The Competence of the United Nations General Assembly, 97 Rec. Des Coots 234, 249. (II, 1957).Google Scholar

27 R. Higgins, supra note 13, at 62.

28 Schachter, , The Relation of Law, Politics and Action in the United Nations, 109 Rec. Des Couhs 166, 191-98 (II, 1963).Google Scholar

29 Vallat, supra note 26, at 284-85; D. Nincic, The Problem Of Sovereignty In The Charter And In The practice Of The United Nations 326-32 (1970).

30 Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations, [1949] ICJ REP. 174. Here it was stated by the majority (at 180) that “under international law, the Organisation must be deemed to have those powers which, although not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.“

31 Advisory Opinion on Effect of Awards of Compensation made by the United Nations Administrative Tribunal, [1954] ICJ REP. 47.

32 Advisory Opinion on International Status of South West Africa [1950] ICJ REP. 128.

33 W. Friedmann, O. Lissitzyn And R. Pugh, Cases And Materials ON International Law, ch. 11 (1969). Yet even here the writers were constrained to say: Insofar as the international law of co-operation is reflected in international agreements and treaties, it still leans heavily on the traditional structure of international society, under which sovereign states agree to undertake certain activities, but the execution of these activities remains within their sovereign power (at 1008-09).

34 Gordon, supra note 17, at 816-18.

35 “Lotus,” [1927] PCIJ ser. A, No. 10, at 18.

36 Buins, supra note 13, at 109.

37 D. Nincic, supra note 29, at 182.

38 R. Higgins, supra note 13, at 4.

39 Vallat, supra note 26, at 233-34.

40 I. Claude, The Changing United Nations 73-104 (1967).

41 Vienna Convention on the Law of Treaties, Article 31. UN Doc. A/CONF. 39/27, 63 AJIL 875 (1969).

42 R. HIGGINS, supra note 13, at 2 & 10.

43 MacGibbon, I., Customary International Law and Acquiescence, 33 BYIL 115, 119 (1957).Google Scholar

44 This is easily done by consulting 1 Repertory Of Practice Of The United Nations Organs 55-159 (1955) and 1 id., Supp. I, 25-71 (1958).

45 G.A. Res. 39(1), Dec. 12, 1946.

46 1(2) GAOR (59th plen. mtg.) 1222 (1946).

47 G.A. Res. 285(III) , April 25, 1949.

48 Information on voting by individual states is from D. J. Djonovich, United Nations Resolutions, Ser. I, General Assembly, (vols. 1 and 2, 1973).

49 G . A. Res. 44(1), Dec. 8, 1946.

50 1 Repertory, supra note 51, at 157-59; 1 id., Supp. I, at 70-71.

51 G.A. Res. 814(1X), Dec. 17, 1954, 9 GAOR, Supp. (No. 21) 5, UN Doc. A/ 2890 (1954).

52 9 GAOR (514th plen. mtg.) para. 268 (1954).

53 UN Doc. A/CN.4/16. Working Paper by Manley O. Hudson in [1950] 2 Y.B. Int. Law Comm. 24, 26, UN Doc.A/CN.4/Ser.A/1950/Add.1.

54 Asylum case [1950] ICJ REP. 266, 277. The Court's philosophy regarding the motivation of states in the formation of customary law has remained consistent, see the North Sea Continental Shelf cases [1969] ICJ REP. 3, 41-45

55 Gordon, supra note 17, at 832.

56 Id. at 831.

57 Separate Opinion of Judge Sir Percy Spender, Advisory Opinion on Certain Expenses of the United Nations, [1962] ICJ REP. 151, 189 & 195.

58 Howell, , Domestic Questions in International Law, 48 ASIL PROCS. 90, 93 (1954).Google Scholar

59 Gross, supra note 19, at 140.

60 1 SCOR, 1st Ser., No. 2, (34th mtg.) 154 (1946). Ample materials on this question can be found in L. SOHN, CASES ON UNITED NATIONS LAW 290-320 (2d ed., 1967).

61 1 SCOR, 1st Ser., Spec. Supp. 4 (1946).

62 Id. 5-6.

63 With two notable exceptions; the United Kingdom and the Netherlands.

64 The USSR vetoed the resolution on the grounds that it did not go far enough and that action under Chapter VII was called for.

65 1(2) GAOR (59th plen. mtg.) 1222 (1946).

66 R. HIGGINS, supra note 13, at 80.

67 1 SCOR, 1st Ser. No. 2 (34th mtg.) 176-77 (1946).

68 M. (46th mtg.) 345.

69 5 GAOR (204th plen. mtg.) para. 124 (1950).

70 Cited in Howell, , The Commonwealth and the Concept of Domestic Jurisdiction, 5 CAN. Y.B. INT. LAW 14, 28 (1967).CrossRefGoogle Scholar

71 2 SCOR, 1st Ser. No. 68 (172nd mtg.) 1657-58 (1947).

72 Id.

73 4 SCOR, 1st Ser. No. 7 (403rd mtg.) 3 (1949).

74 G.A. Res. 1747(XVI), June 28, 1962, 16 GAOR, 2 Supp. (No. 17/A) 3, UN Doc. A/5100/Add.l (1962). G.A. Res. 1755(XVII), Oct. 12, 1962, 17 GAOR, Supp. (No. 17) 37, UN Doc. A/5217 (1962). G.A. Res. 1760(XVII), Oct. 31, 1962, id. 38. G.A. Res. 1889(XVIII), Nov. 6, 1963, 18 GAOR, Supp. (No. 15) 46, UN Doc. 5515 (1963).

75 16 SCOR (941st mtg.) 61 (1961).

76 An excellent example is to be found in the remarks of the Yugoslav representative during the Security Council debate on the Greek Frontier question: The authors of the Charter established a distinction between two kinds of procedure: that provided for by Chapter VI and that provided for by Chapter VII. In drawing up the measures contained in Chapter VI, they took special care not to restrict the sovereignty of States. It was only in connexion with a serious situation that they thought fit to restrict this sovereignty … I think, gentlemen, that you will detract greatly not to say entirely from the moral value of your decisions if you do not take into account this difference between the Chapters of the Charter … Quoted in SOHN, supra note 60, at 340-41.

77 Facing the reality of the situation, Messrs. Clark and Sohn suggest that Article 2(7) be made inapplicable to Chapter VI disputes in their proposed revised Charter. Clark And Sohn, World Peace Through World Law 105-06 (3rd ed. 1966).

78 Conditions of Admission of a State to Membership in the United Nations [1947- 48] ICJ REP. 57, 64.

79 G. Schwarzenberger, The Inductive Approach To International Law 61 (1965).