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The Place of International Law in the Settlement of Disputes by the Security Council

Published online by Cambridge University Press:  28 March 2017

Rosalyn Higgins
Rosalyn Higgins*
Affiliation:
The Royal Institute of International Affairs, London
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Extract

The place of law in the settlement of disputes by the Security Council is a topic which has already occasioned debate. Many lawyers contend that law plays a minimal rôle in the work of the Council. That organ is, they point out, essentially a political body. It operates in a different way from a judicial body such as the International Court of Justice, and frequently ignores the law of nations. Oscar Schachter, writing in this Journal in 1964, has offered another view, pointing to subtle ways in which the influence of law can still make itself felt in the work of the Security Council, by providing a common language, by applying principles to specific cases, and by determining new points of community interest. The purpose of this article is to examine, in the light of recent years, some of the limitations within which this legal endeavor takes place, and to see whether law has any real function in the settlement of disputes.

Type
Research Article
Information
American Journal of International Law , Volume 64 , Issue 1 , January 1970 , pp. 1 - 18
Copyright
Copyright © American Society of International Law 1970

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References

1 Schachter, Oscar, “The Quasi-Judicial R?1e of the Security Council and the General Assembly,” 58 A.J.I.L. 960–965 (1964).Google Scholar

2 Thus no practice is listed in this regard in Supp. No. 2, Vol. II of the Repertory of Practice of United Nations Organs, covering the period 1956-1959. The Repertory also notes certain developments in procedure which have facilitated the ability to avoid a vote as to whether a matter is a dispute or a situation. These include the expressing of unanimous approval without vote; the withdrawing of draft resolutions in favor of agreed statements by the President, summarizing proceedings; and non-participation in a vote while at the same time indicating that this was not an abstention in application of the provision. II Repertory of Practice of United Nations Organs 84.

3 E.g., Argentina did not participate in the voting on the Eichmann question. Security Council, 15th Year, Official Records, 868th Meeting. Non-participation and abstention are treated as identical for purposes of Art. 27(3).

4 Security Council Res. 245 (1968).

5 Schachter, he. cit. above, p. 962.

6 Security Council, 23rd Year, Official Records, 1441st Meeting.

7 Ibid., 2nd Year, 173rd Meeting, p. 1703. The Linggadjati Agreement had itself provided that any dispute as to its terms should be settled by arbitration. On this, and other early recommendations for arbitration, see Goodrich and Simons, The United Nations and the Maintenance of International Peace and Security 325-329.

8 Except in the case of the Cuban complaint about the Punta del Este decisions, where Cuba, backed by the Soviet Union, asked the Security Council to request an Advisory Opinion from the Court. Security Council, 17th Year, Official Records, 992nd-998th Meetings.

9 For a fully elaborated argument that all legal norms are in fact “matching opposites,” see McDougal, , “Some Basic Theoretical Concepts about International Law: A Policy Oriented Framework of Enquiry,” 4 Journal of Conflict Resolution 337–354 (1960).Google Scholar

10 In his valuable book, The United Nations and the Rule of Law 67-68 (1966).

11 But it was not agreed as to what constituted “appropriate reparation.” The United States thought an apology was sufficient, while Argentina wanted the return of Eichmann and the punishment of the Israelis concerned. Security Council, 15th Sess., Official Records, 865th-868th Meetings, and Security Council Res. 138 (1960).

12 Schachter, loc. cit. 964.\

13 General Assembly Res. 2253 (ES-V).

14 Security Council Res. 252 (1968).

15 Though see Eli Lauterpacht, Jerusalem and the Holy Places, Monograph for Anglo- Israel Association, 1968; Julius Stone, No Peace-No War in the Middle East, published by Australian Branch, I.L.A.; and S. Shepard Jones, “The Status of Jerusalem: Some National and International Aspects,” Law and Contemporary Problems, Winter, 1968.

16 Equally, the General Assembly purported to terminate the mandate for South West Africa without adequate discussion of the legal issues: for doubts as to the validity of the Assembly action, see Higgins, “The International Court and South West Africa: The Implications of the Judgment,” International Affairs, Oct. 1966, pp. 573-599, at 598- 599. For a detailed discussion of the legal aspects of revocation, see Dugard, “The Revocation of the Mandate for South West Africa,” 62 A.J.I.L. 78-97 (1968), and Marston “Termination of Trusteeship,” 18 Int. and Comp. Law Q. 1-40 (1969).

17 The Acquisition of Territory 52-67.

18 For detailed arguments on this point, see R. Higgins, “The June War: The United Nations and Legal Background,” Journal of Contemporary History (July, 1968) 252- 273, at 269-272.

19 See, for example, the views of Judge Sir Gerald Fitzmaurice, as discussed in R. Higgins, “Policy Considerations and the International Judicial Process,” 17 Int. and Comp. Law Q. 58 (1968).

20 This view, of course, permeates the writings of Myres McDougal and his associates. See, particularly, McDougal, “Some Basic Theoretical Concepts about International Law: A Policy Oriented Framework of Enquiry,” 4 Journal of Conflict Resolution 337 (1960).

21 Such a view would seem to be held by Richard Falk, See, for example, his review article, “The Reality of International Law,” XIII World Politics 354 (1961).

22 See Falk, Review in 10 A. J. Comp. Law 297 (1961).

23 Kelsen, The Law of the United Nations 385.

24 Security Council, 2nd Year, Official Records, 179th Meeting, p. 1861.

25 Ibid., No. 32, p. 687 ff.

26 Ibid., Part 2, 173rd Meeting, p. 1685.

27 For a discussion of the issues where such feelings most commonly arise, see Higgins, Conflicts of Interests (Bodley Head), Ch. 2. Professor Falk has written: “Law tends to sustain the prevailing order-preferring old injustices to new solutions; the legal process makes minor concessions to pacify discontented groups in society, but concentrates its energy upon the maintenance of an atmosphere favorable to elite groups.” 10 A. J. Comp. Law 297 (1961).

28 See particularly the consideration of the four principles enumerated in par. 5 of General Assembly Res. 2181 (XXI), which is reported in A/6799, General Assembly, 22nd Sess., Official Records, Agenda item 87.

29 Security Council Res. 253 (1968) and 232 (1967).

30 But not wholly true; the U.N. has sometimes sought a middle course, such as requiring Israel to withdraw from Egypt in 1956, but ensuring, through the placing of UNEF along the armistice line and at Sharm-el-Sheikh, an amelioration of the initial situation.

31 Security Council Res. 248 (1968).

32 Security Council Res. 211 (1965).

33 See C. W. Jenks, The Prospects for International Adjudication, Ch. 1, esp. pp. 76- 112; see also Professor Franck's comment that “The failure of the International Community to develop a system of third party law-making comparable to that of the National Community may well prove to be the fatal error of our civilization.” The Structure of Impartiality 46.

34 Indeed, there can be fruitful co-operation between the two disciplines. See, for example, the collaboration between Falk and his colleagues at the Woodrow Wilson Center, Princeton University.

35 J. W. Burton, Systems, States, Diplomacy and Rules 222 (1968); and Conflict and Communication 148-200 (1909).

36 See General Assembly, Official Records, 6th-13th Sessions; and Cmnd. Paper 679 (Misc. No. 4), H.M. Stationery Office, 1959.

37 A fallacy elegantly noted by Franck, op. cit. 171.

38 This is a theme which I have elaborated in “Policy Considerations and the International Judicial Process,” 17 Int. and Comp. Law Q. 58 (1968).

39 Franck has suggested that an appropriate way to decide whether issues are suitable for adjudication is to see whether a legal answer to them would be fully dispositive of the dispute. Where there are innumerable possible solutions to a controversy, the answering of particular legal claims may not be a helpful method of approach: “What makes a judicial determination of the status of lobsters … and nautical signals relatively easy for a Court is the clear duality of choice. Each issue poses only two credible alternatives.” Op. tit. 185.

40 Milton Katz, in his book, The Relevance of International Adjudication (1968), writes interestingly of “political decisions made with a sense of law.” See Ch. VI, pp. 145-160.

41 See R. Higgins, “International Law, Rhodesia and the UN,” 23 World Today 94 (1967); and McDougal, and Reisman, , “Rhodesia and the United Nations: The Lawfulness of International Concern,” 62 A.J.I.L. 1 (1968).Google Scholar

42 Schachter, he. cit. 960-961.

43 Ibid.

44 Security Council, 23rd Year, Official Records, 1443rd Meeting.

45 loc. cit. 965.