Security Council --- United Nations

Sir Michael Wood

Content type:
Encyclopedia entries
Article last updated:
July 2007
Product:
Max Planck Encyclopedia of Public International Law [MPEPIL]

Subject(s):

Unilateral acts — Collective security — International peace and security — Peace keeping

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of
Law under the direction of Rüdiger Wolfrum.
A. Introduction
1 The United Nations Security Council is one of the six principal organs of the United
Nations (UN). It is the organ upon which, ‗in order to ensure prompt and effective action‘
(Art. 24 (1) United Nations Charter[‗UN Charter‘]), the members of the UN have
conferred ‗primary responsibility for the maintenance of international peace and security‘
(ibid). In carrying out these duties the Security Council acts on behalf of the members of
the UN and is to act in accordance with the purposes and principles of the UN Charter
(United Nations, Purposes and Principles).

2 As described in paras 18–39 below, the Security Council has the power both to make
recommendations and to adopt binding decisions (International Organizations or
Institutions, Decision-Making Bodies; International Organizations or Institutions,
Secondary Law). The members of the UN have agreed to accept and carry out the
decisions of the Security Council (Arts 25, 48 UN Charter). Such decisions, being
obligations under the UN Charter, prevail over conflicting obligations under any other
agreement (Art. 103 UN Charter; see para. 16 below; Treaties, Conflict Clauses).

3 The Security Council is an organ of limited membership. There are 15 members. Five
are ‗permanent members‘ with a right of veto; 10 members are elected for a two-year
term, and may not immediately be re-elected.

4 The law relating to the Security Council is to be found primarily in the UN Charter, in
the practice of the Security Council—including its resolutions and presidential
statements—and in general international law, including the law of international
organizations. In addition, for procedural matters, there are the Provisional Rules of
Procedure of the Security Council, supplemented by a series of presidential statements.
There are a number of decisions of the International Court of Justice (ICJ) which shed
important light on the relevant Charter law.
B. Historical Development
5 Those who drafted the UN Charter intended the Security Council to be a powerful
organ, continuing the alliance of Great Powers which was successfully co-operating in
World War II (History of International Law, since World War II; United Nations Charter,
History of). As an essential condition for the participation of certain States in the new
organization, they provided that each of the five permanent members would have a
veto. This marked an advance over the position in the Council of the League of Nations,
where unanimity was required.

6 The wartime alliance rapidly broke down, and the Security Council did not operate as
envisaged. Indeed, throughout most of the Cold War (1947–91) it was largely
ineffective, because of lack of agreement among the permanent members. The UN
General Assembly assumed a role in relation to the maintenance of international peace
and security—the Uniting for Peace Resolution (1950); the establishment
of peacekeeping forces, such as UN Emergency Force I and UN Operation in the
Congo (United Nations, General Assembly).

7 Only with the end of the Cold War did the Security Council begin to live up to its
potential. The high point of co-operation came in the early 1990s, in reaction to Iraq‘s
seizure of Kuwait and in the euphoria of the ‗new world order‘ pronounced by President
of the United States of America (‗US‘) Bush in his speech to Congress on 6 March 1991
(Iraq-Kuwait War [1990–91]). Since then co-operation has been less secure. Despite a
commendably robust reaction to 9/11 (Terrorism), a low point was reached in 2003 over
the invasion of Iraq (Iraq, Inovasion of [2003]). The Security Council has nevertheless
continued, throughout the period since 1990, with a high level of activity, much of it
innovative.

8 Over the years, and especially with the increased activity of

the Security Council since the early 1990s, there has been much discussion—both
within the organization and outside—about the need to reform the Security Council, in
particular its composition (United Nations, Reform).

C. Composition, Voting and Procedure (Including Subsidiary Organs)

9 The UN Security Council is an organ of limited composition, by contrast with the
plenary organ of the UN, the General Assembly. Under the UN Charter as originally
adopted at San Francisco, the Security Councilhad 11 members: the five permanent
members (China, France, the United Kingdom, the US, and the Union of Soviet Socialist
Republics), and six non-permanent members, who were elected for two years. The
number of non-permanent members was increased by UN Charter amendment in 1966
to 10, making the total membership 15. Further enlargement has been under
discussion, particularly since the early 1990s, including possible new permanent
members, but so far without any result. In the 2005 World Summit Outcome (UNGA Res
60/1 [16 September 2005]), the Heads of State and governments were only able to say
that: ‗We support early reform of the Security Council … in order to make it more
broadly representative, efficient and transparent and thus to further enhance its
effectiveness and the legitimacy and implementation of its decisions‘ (at para. 153).
10 Five non-permanent members are elected each year by the General Assembly for a
two-year term, and may not immediately be re-elected. A two-thirds majority is required
in the General Assembly, which can lead to prolonged balloting—as happened, for
example, in 2006, when neither Guatemala nor Venezuela was able to secure the
necessary majority.

11 Decisions of the Security Council on procedural matters require nine affirmative

votes; decisions on all other matters—ie non-procedural matters—require nine
affirmative votes, including ‗the concurring votes of the permanent members‘ (Art. 27 (3)
UN Charter). The established practice of the Security Council, since the earliest days,
has been to regard an abstention by a permanent member as not preventing the
adoption of a non-procedural decision, and this was endorsed by the ICJ in the Namibia
Opinion (South West Africa/Namibia [Advisory Opinions and Judgments]). In the event
of a dispute as to whether a matter is non-procedural or not, the matter may be decided
by a non-procedural vote—the ‗double veto‘. In disputes under Chapter VI UN Charter—
or Art. 52 UN Charter—a party to the dispute shall abstain from voting.

12 During the Cold War, procedural debates during meetings of

the Security Council were frequent. Nowadays virtually all procedural—and indeed
substantive— negotiation takes place informally before the Security Council meets, in
so-called informal consultations of the whole—at which only
the Security Councilmembers and the UN Secretariat are present—and other informal
groupings. This has led to accusations of lack of transparency, and a number of
procedural developments have been instituted to alleviate the concerns.

13 The Security Council normally acts through the adoption of resolutions, though
increasingly also through presidential statements—statements agreed in advance by all
the members of the Security Council and read out by the Security Council President
(Talmon). It may make recommendations, which are non-binding, or—acting
under Chapter VII UN Charter—decide upon measures, whether involving the use of
armed force or not (Use of Force, Prohibition of), which in accordance with Art. 25 UN
Charter are binding (see also Art. 48 UN Charter). Art. 25 UN Charter provides that
‗[t]he Members of the United Nations agree to accept and carry out the decisions of
the Security Council in accordance with the present Charter‘.

14 The Security Council has the power to establish subsidiary organs (Art. 29; Art. 29
United Nations Committeesf and Subsidiary Bodies, System of;). It has done so on
many occasions, and for a wide variety of purposes. Such organs may have the same
composition as the Security Council, but often with different decision-making
procedures—eg, the various sanctions committees, which are composed of the
members of the Security Council but which adopt decisions by consensus. Or they may
be composed quite differently, and even of individuals—eg, the International Criminal
Tribunal for Rwanda [ICTR] and the International Criminal Tribunal for the Former
Yugoslavia [ICTY]).

15 A key provision of the Art. 103 UN Charter is, which provides that ‗[i]n the event of a
conflict between the obligations of the Members of the United Nations under the present
Charter and their obligations under any other international agreement, their obligations
under the present Charter shall prevail‘.

16 This applies equally to obligations imposed by the Security Council, which by virtue
of Arts 25 and 48 UN Charter are obligations under the UN Charter, as the ICJ
confirmed at the provisional measures phase of the Lockerbie Cases (Libyan Arab
Jamahiriya v United Kingdom and United States of America) (‗Lockerbie Cases‘).

17 While the Security Council traditionally dealt largely with specific disputes and
situations, in recent times it has increasingly been addressing generic issues. It has
done this through thematic debates, often leading to a presidential statement, and in
one or two cases through the adoption of what some have described as ‗legislation‘—
UNSC Resolution 1373 (2001) of 28 September 2001 on terrorism and UNSC
Resolution 1540 (2004) of 28 April 2004 on weapons of mass destruction (Rosand).

D. Powers and Functions

1. General
18 The Security Council‘s powers were intended, by the drafters of the UN Charter, to
be broad and flexible. The powers of the Security Council within its core field of
activity—the maintenance of international peace and security—tend to be ‗open-
textured and discretionary‘ (Lamb 388). They cannot, as a matter of principle, be
unlimited, even within that core field. It is widely accepted that, first,
the Security Council is to act in accordance with the Purposes and Principles of the UN,
and, second, that the Security Council cannot contravene peremptory norms of
international law (Ius cogens). While in recent years much has been written by
observers of the Security Council on the potential limits on its powers, the effect of
these limits in practice has been slight.

19 The starting point for considering the powers of the Security Council is Art. 24 (1)
UN Charter, which reads:
In order to ensure prompt and effective action by the United Nations, its Members
confer on the Security Council primary responsibility for the maintenance of
international peace and security, and agree that in carrying out its duties under this
responsibility the Security Council acts on their behalf.
20 Art. 24 (2) UN Charter provides in its second sentence that ‗[t]he specific powers
granted to the SecurityCouncil for the discharge of [its duties under its primary
responsibility for the maintenance of international peace and security] are laid down in
Chapters VI, VII, VIII, and XII‘.

21 While the Security Council has ‗primary responsibility‘ for the maintenance of
international peace and security, other organs of the UN also have a role in this regard,
notably the General Assembly, the ICJ, and the UN Secretary-General (United Nations,
Secretary-General), as do regional organizations (Regional Arrangements and the
United Nations Charter).

2. Chapter VI (Pacific Settlement of Disputes)

22 Under Chapter VI UN Charter, the Security Council has very broad powers in
respect of the peaceful settlement of international disputes, though these are essentially
recommendatory. Any member of the UN may bring any dispute or situation to the
attention of the Security Council (Art. 35 UN Charter), and any non-member may bring a
dispute to which it is a party to the Security Council‘s attention (Art. 37 UN Charter).
The Security Council may carry out investigations (Art. 34 UN Charter), and make
recommendations for the peaceful settlement of disputes, in particular those ‗the
continuance of which is likely to endanger the maintenance of international peace
and security‘ (Art. 33 UN Charter). It may call upon the parties to settle their dispute by
peaceful means (Art. 33 (2) UN Charter). It may recommend procedures or methods of
settlement, taking into consideration that legal disputes should as a general rule be
referred by the parties to the ICJ (Art. 36 UN Charter). And where the parties to a
dispute have failed to settle it by peaceful means the Security Council may recommend
terms of settlement (Art. 37 UN Charter).

3. Chapter VII (Action with respect to Threats to the Peace, Breaches of

the Peace, and Acts of Aggression)
23 There are three common misunderstandings about Chapter VII UN Charter. First, it
is not the case that every resolution adopted under Chapter VII UN Charter is thereby
legally binding: though the converse may be true, a resolution not adopted under
Chapter VII will—in any event, generally—not be legally binding.
The Security Council‘s powers under Chapter VII UN Charter are expressly stated to be
to ‗make recommendations, or decide what measures shall be taken‘ (Art. 39 UN
Charter). Second, it is not the case that when the Security Council acts under Chapter
VII UN Charter, this invariably, or even commonly, involves or implies the use of armed
force. The taking or authorizing of force is only one of a range of possible measures
under Chapter VII UN Charter. Third, the fact that a resolution adopted under Chapter
VII UN Charter is mandatory, that is to say, imposes legal obligations, does not mean
that States are entitled to use force to enforce the resolution, any more than the fact that
a State is in breach of a treaty means that force can be used against it. Only if they are
authorized by the Security Council to use force for that purpose may States do so.

24 Art. 39 UN Charter, the first provision in Chapter VII UN Charter, provides that:
The Security Council shall determine the existence of any threat to the peace,
breach of the peace, or act of aggression and shall make recommendations, or
decide what measures shall be taken in accordance with Articles 41 and 42, to
maintain or restore international peace and security.
25 Two questions arise concerning the scope of the Security Council‘s powers under
this provision. First, how broad is the Security Council‘s power to determine the
existence of a threat to the peace, breach of the peace or act of aggression? And
second, having made such a determination, what is the scope of
the Security Council‘s power to make recommendations, or decide what measures shall
be taken, to maintain or restore international peace and security?

26 The meaning of the three terms used in Art. 39 UN Charter—threat to the peace,
breach of the peace, act of aggression (Peace, Breach of; Peace, Threat to)—and
the Security Council‘s discretion in determining what constitutes ‗a threat to the peace‘
in particular, have given rise to much debate. The concept of a ‗threat to the peace‘ has
expanded over the years, and now includes ‗internal conflicts, widespread deprivations
of human rights, humanitarian disasters, and serious threats to democratic government‘
(Matheson, 233). Often the Council has acted ‗by substantially broadening the concept
of ―threats to the peace‖ to include such internal crises where there was a plausible
concern that their continuation might lead to regional and international escalation‘
(Matheson 6–7).

27 A much debated question, particularly since the Lockerbie Cases, is whether

the Security Council‘s Art. 39 UN Charter determinations are justiciable. The ICJ itself
has not expressed a view on the matter. In his dissenting opinion at the provisional
measures stage of the Application of the Convention on the Prevention and Punishment
of the Crime of Genocide Case (Bosnia and Herzegovina v Serbia and
Montenegro) (‗Genocide Convention Case‘) Judge ad hoc Lauterpacht said that it is not
for ‗the Court to substitute its discretion for that of the Security Council in determining
the existence of a threat to the peace, a breach of the peace or an act of aggression, or
the political steps to be taken following such a determination‘ (at para. 99). In the Tadić
Case, the Appeals Chamber of the ICTY said that whereas ‗the ―act of aggression‖ is
more amenable to a legal determination, the ―threat to the peace‖ is more a political
concept‘ (at para. 29).

28 As regards the second aspect of Art. 39 UN Charter, the scope of

the Security Council‘s power, having made the necessary Art. 39 UN Charter
determination, to make recommendations and adopt measures, the Appeals Chamber
of the ICTY in the Tadić Case said: ‗Article 39 leaves the choice of means and their
evaluation to the Security Council, which enjoys wide discretionary powers in this
regard; and it could not have been otherwise, as such a choice involves political
evaluation of highly complex and dynamic situations‘ (at para. 39). Judge Lauterpacht
also covered the point in the Genocide Convention Case (above).

29 Having made a determination under Art. 39 UN Charter, the Security Council may
make recommendations or decide on measures not involving the use of force
(under Art. 41 UN Charter). These typically consist of sanctions, such as an arms
embargo, comprehensive economic sanctions and, recently, ‗targeted‘ sanctions, aimed
at particular individuals. It is particularly in connection with the listing—and delisting—of
individuals subject to sanctions that concerns have been expressed about the fairness
of the Security Council‘s procedures and the need for it to conform to human
rights standards (Individuals in International Law).

30 Should the Security Council consider that measures not involving the use of force
would be inadequate or have proved to be inadequate, it may take measures involving
the use of force (Art. 42 UN Charter) or authorize States to do so. Such authorizations
have become the standard practice when measures involving the use of force are
required. The Korea operation in 1950 was of this nature (Korean War [1950–53]), and
formed a precedent for the authorization in UNSC Resolution 678 (1990) of 29
November 1990 of Member States co-operating with the government of Kuwait ‗to use
all necessary means to uphold and implement resolution 660 (1990) and all subsequent
relevant resolutions and to restore international peace and security in the area‘ (at para.
2; see also Berman). Such authorizations to use force have now become quite
common.

4. Peacekeeping Operations
31 Given the inability of the Security Council to act as foreseen in Chapter VII UN
Charter, the practice developed early of sending peacekeeping operations on to the
territory of States with their consent. This has become a major part of
the Security Council‘s activity, with large numbers of missions around the globe. The
legal basis for ‗peacekeeping‘ has been much debated—Chapter VI, Chapter VII, even
‗Chapter VI ½‘; but the power of the Security Council to establish such forces has not
been seriously questioned in practice. The nature of peacekeeping has developed over
the years, and in recent times the Security Council has been much involved in post-
conflict peacebuilding, and has even gone as far as the temporary but
comprehensive international administration of territories (Kosovo; East Timor). One of
the institutional reforms on which agreement could be reached at the 2005 World
Summit was the establishment, jointly by the General Assembly and
the Security Council, of the UN Peacebuilding Commission.

5. Other Powers and Functions

32 In addition to its core functions in the field of international peace and security,
the Security Council has a number of other important functions under the UN Charter.

33 Under Chapter II UN Charter—Arts 4 to 6 UN Charter—the Security Council has

certain functions connected with membership in the UN (International Organizations or
Institutions, Membership). Under Art. 4 (2) UN Charter the General Assembly decides
admission ‗upon the recommendation of the SecurityCouncil‘. In two early advisory
opinions the ICJ decided that the admission requires a positive recommendation by
the Security Council, and that the conditions for membership are exhaustively set forth
in Art. 4 (1) UN Charter (Admission of a State to Membership in the United Nations
[Advisory Opinions]). The Security Council has a standing subsidiary organ, the
Committee on the Admission of New Members to assist it with this function. Under Art. 5
UN Charter the General Assembly may suspend a member against which preventive or
enforcement action has been taken from the exercise of the rights and privileges of
membership, again ‗upon the recommendation of the Security Council‘. In this case the
exercise of the rights and privileges may be restored by the Security Council acting
alone. No such suspension has taken place. Under Art. 6 UN Charter, the General
Assembly may expel a member which has persistently violated the principles of the UN
Charter but only ‗upon the recommendation of the Security Council‘. Again, this has
never been done. In 1992–93, acting by analogy with the powers and procedures in Arts
4 to 6, the SecurityCouncil recommended and the General Assembly decided that the
Federal Republic of Yugoslavia (Serbia and Montenegro) ‗cannot continue automatically
the membership of the former Socialist Federal Republic of Yugoslavia in the United
Nations‘ (UNSC [1992] [19 September 1992] para. 1) and therefore ‗should apply for
membership and shall not participate in the work of the General Assembly‘ (ibid) (or
the United Nations, Economic and Social Council).

34 Under Art. 26 UN Charter, the Security Council is responsible for formulating plans
to be submitted to the members of the UN for the establishment of a system for the
regulation of armaments. Efforts to do so were abandoned by about 1950, and work in
the field of disarmament has been carried out in other forums or bilaterally. In recent
years, however, the Security Council has become involved in non-proliferation, both in
general—UNSC Resolution 1540 (2004) of 28 April 2004— and in specific cases—Iraq,
Democratic People‘s Republic of Korea, Iran (Non-Proliferation Treaty [1968]).

35 Under Art. 83 UN Charter, the Security Council carried out all the functions of the
UN relating to strategic trust territories: this function came to an end with the entry of the
last area under forming part of such a territory, Palau, into the UN in December 1994
(United Nations Trusteeship System).

36 Under Art. 94 (2) UN Charter, in the event of non-compliance with a judgment of the
ICJ, a party to the case may have recourse to the Security Council, ‗which may, if it
deems necessary, make recommendations or decide upon measures to be taken to
give effect to the judgment‘. Practice under this provision is sparse.

37 Art. 97 UN Charter provides that the UN Secretary-General shall be appointed by

the General Assembly upon the recommendation of the Security Council.
The Security Council has developed elaborate procedures for choosing the candidate
that it recommends for appointment.

38 Under the Statute of the ICJ (International Court of Justice, Rules and Practice
Directions), the SecurityCouncil elects the judges of the ICJ together with the General
Assembly. To be elected the candidate must receive eight votes in favour in
the Security Council; the veto does not apply. Under the Statutes of the ICTY and the
ICTR, the Security Council summits a list of candidates to the General Assembly for
election.

39 Other specific functions may be referred to in instruments drawn up outside

the Security Council—and indeed outside the UN—but these may only be carried out by
the Security Council if they fall within its powers under the UN Charter—for example,
under its primary responsibility for the maintenance of international peace
and security—and only then if and to the extent that, acting in accordance with its own
discretion, it decides to do so. There are, for example, a number of functions for
the Security Council set out in the Rome Statute of the International Criminal Court
(ICC) (‗ICC Statute‘), including the reference of situations to the ICC (see UNSC Res
1593 [2005] [31 March 2005] on Darfur; Sudan), and the power under Art. 16 ICC
Statute to request the ICC to defer for a period of 12 months an investigation or
prosecution (see the controversial use of this power in UNSC Res 1422 [2002] [12 July
2002], 1487[2003][12 June 2003] and 1497[2003][1 August 2003]).

E. Evaluation
40 For the first 45 years, because of the Cold War the Security Council did not live up
to the high expectations placed in it by the drafters of the UN Charter. The period since
1990 has seen a great resurgence in activity by the Security Council, which is now seen
by some as becoming over-mighty. The Security Council, as the only international body
that can impose legal obligations on all States notwithstanding their other obligations,
remains of the highest importance for multilateral action and central to
the collective security system established by the UN Charter.

41 Voices are frequently heard questioning the legitimacy of the Security Council—
particularly in light of its composition—and its actions—eg, its selectivity (International
Organizations or Institutions, Democratic Legitimacy; Legitimacy). Such questioning,
which is often quite strident, raises issues of policy, rather than calling into question the
lawfulness of the Security Council‘s action. Such issues are, however, important. If
pressure for unilateral action is to be resisted, the world needs a Security Council that is
capable of acting promptly and effectively and that is seen so to act whenever
necessary. In the long-term, a Security Councilthat is not perceived to be legitimate will
not be effective.

Select Bibliography
 H Kelsen The Law of the United Nations: A Critical Analysis of its Fundamental

Problems (Stevens London 1951).

 R Higgins The Development of International Law through the Political Organs of

the United Nations(OUP London 1963).

 LM Goodrich and E Hambro, Charter of the United Nations: Commentary and

Documents (3rd ed Columbia University Press New York 1969).

 R Higgins ‗The Place of International Law in the Settlement of Disputes by

the Security Council‘ (1970) 64 AJIL 1–18.

 R Higgins ‗The Advisory Opinion on Namibia: Which UN Resolutions are Binding

under Article 25 of the Charter?‘ (1972) 21 ICLQ 270–86.

 R-J Dupuy (ed) The Development of the Role of the Security Council: Peace-

keeping and Peace-building (Nijhoff Dordrecht 1993).

 M Bedjaoui The New World Order and the Security Council: Testing the Legality

of its Acts (Nijhoff Dordrecht 1994).

 Société Française pour le Droit International Colloque de Rennes, Le Chapitre
VII de la Charte des Nations Unies: Colloque de Rennes, 50e anniversaire des

Nations Unies (Pedone Paris 1995).

 SD Bailey and S Daws The Procedure of the UN Security Council (3rd ed

Clarendon Oxford 1998).

 B Fassbender UN Security Council Reform and the Right of Veto: A

Constitutional Perspective (Kluwer The Hague 1998).

 D Malone Decision-making in the Security Council: The Case of Haiti, 1990–

1997 (Clarendon Oxford 1998).

 M Wood ‗The Interpretation of Security Council Resolutions‘ (1998) 2

MaxPlanckYrbkUNL 73–95.
 S Lamb ‗Legal Limits to United Nations Security Council Powers‘ in GS Goodwin-
Gill (ed) The Reality of International Law: Essays in Honour of Ian Brownlie (OUP

Oxford 1999) 361–88.

 D Sarooshi The United Nations and the Development of Collective Security: The
Delegation by the UN Security Council of its Chapter VII Powers (Clarendon

Oxford 1999).
 V Gowlland-Debbas (ed) United Nations Sanctions and International Law (Kluwer

The Hague 2001).

 TM Franck Recourse to Force: State Action against Threats and Armed

Attacks (CUP Cambridge 2002).

 B Simma (ed) The Charter of the United Nations: A Commentary (2nd ed Beck

München 2002).
 S Talmon ‗The Statements by the President of the Security Council‘ (2003) 2

Chinese Journal of International Law 419–65.

 E de Wet The Chapter VII Powers of the United Nations Security Council (Hart

Oxford 2004).
 FB Berman ‗The Authorization Model: Resolution 678 and Its Effects‘ in D
Malone (ed) The UN Security Council: From the Cold War to the 21st

Century (Lynne Rienner Boulder 2004) 153–65.

 N Blokker and N Schrijver (eds) The Security Council and the Use of Force:

Theory and Reality—A Need for Change? (Nijhoff Leiden 2005).

 B Conforti The Law and Practice of the United Nations (3rd ed Nijhoff Leiden

2005).
 J-P Cot, A Pellet, and M Forteau La Charte des Nations Unies: Commentaire

article par article (3rd ed Economica Paris 2005).

 E Rosand ‗The Security Council as ―Global Legislator‖: Ultra Vires or Ultra

Innovative?‘ (2005) 28 FordhamIntlLJ 542–90.

 R Chemain and A Pellet (eds) La Charte des Nations Unies, Constitution

Mondiale? (Pedone Paris 2006).

 E Luck UN Security Council: Practice and Promise (Routledge London

2006).
 D Malone The International Struggle over Iraq: Politics in the

UN Security Council, 1980–2005 (OUP Oxford 2006).

 K Manusama The United Nations Security Council in the Post-Cold War

Era (Nijhoff Leiden 2006).

 MJ Matheson Council Unbound: The Growth of UN Decision Making on Conflict
and Postconflict Issues after the Cold War (United States Institute of Peace

Washington DC 2006).
 M Wood, ‗The UN Security Council and International Law, Second Lecture:
The Security Council‘sPowers and their Limits‘ (2006).
 D Malone ‗The Security Council‘ in TG Weiss and S Daws (eds) The Oxford

Handbook on the United Nations (OUP Oxford 2007) 117–35.

Select Documents
 Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Separate
Opinion of Judge Lauterpacht) [1993] ICJ Rep 407.
 Charter of the United Nations (adopted 26 June 1945, entered into force 24
October 1945) 145 BSP 805.
 Conditions of Admission of a State to Membership in the United Nations (Article 4
of the Charter) [1948] ICJ Rep 57.
 Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction) IT-94-1-AR72 (2 October 1995).
 Repertoire of the Practice of the Security Council.
 UN Provisional Rules of Procedure of the Security Council (21 December 1982)
UN Doc S/96/Rev.7
 UN Security Council.
 UN Security Council Report.
United Nations, General Assembly
Christian Tomuschat

Content type:
Encyclopedia entries
Article last updated:
April 2011
Product:
Max Planck Encyclopedia of Public International Law [MPEPIL]

Subject(s):

Practice and procedure of international organizations

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of
Law under the direction of Rüdiger Wolfrum.
A. Foundations
1 The General Assembly (‗GA‘) is one of the principal organs of the United Nations
(UN) enumerated in Art. 7 (1) UN Charter. The fact that it takes pride of place on the list
and that its functions and powers are set out in Chapter IV UN Charter, before all the
other principal organs, is no coincidence. Under Art. 9 (1) UN Charter, every Member
State has a seat and a vote in the GA, whereas all the other principal organs composed
of States have only a limited circle of membership. The GA thus occupies a central
position as a universal conference within the organizational structure of the UN. From a
political point of view, it is the only body in which every Member State can voice its
interests. Now that the UN has almost achieved universality of membership, with
only Taiwan lacking a direct representation, the GA is increasingly consolidating its
position as the pre-eminent forum of global discussion, notwithstanding the competition
it has to confront from the informal fora of the Group of Eight (G8) and the G20. A
number of specific provisions make it clear that, to a large extent, the other principal
organs of the UN are legally subordinated to the GA.

2 The right to a seat in the GA is independent of the size of the Member State in
question. The creation of a special status of association for so-called micro States,
which would have comprised a limited right of participation without a right to vote, was
contemplated before the expansion of membership had reached its final point, but with
no tangible results. Consequently, the influence of developing countries in the GA has
been constantly increasing for decades, due to the continuous accession of newly
independent States with ever-smaller populations. Even States as small as Andorra,
Liechtenstein, Monaco, and San Marino from Western Europe or Dominica, Grenada,
and Nauru from other continents were admitted as full members. Due to the rigidity of
the rule ‗one State, one vote‘, the GA does not and can never qualify as a world
legislative body. From the viewpoint of democratic legitimacy, China and India could
hardly be relegated to the same status as the tiny States just mentioned.
3 Observer status includes certain rights of participation as well (International
Organizations or Institutions, Observer Status). Since 2002, when Switzerland joined
the UN, the Holy See has been the only non-member State observer. During the
decolonization process, the GA generally granted the rights of an observer to the
relevant anti-colonial liberation movements. Most liberation movements reached their
goal during the last decades of the last century; the last one of these successful
organizations being, in 1993–94, the African National Congress which fought for the
transformation of the Apartheid State into a State of the entire people of South Africa.
Only the Palestine Liberation Organization (PLO) has not been able to bring about the
admission of Palestine as a member of the UN. Originally being admitted as a liberation
movement in 1974 (UNGA Res 3237 [XXIX] [22 November 1974] ‗Observer Status for
the Palestine Liberation Organization‘ GAOR 29th Session Supp 31 vol 1, 4), it was a
few years later granted the right to act in the UN under the name of ‗Palestine‘ (UNGA
Res 43/177 ‗Question of Palestine‘ [15 December 1988] GAOR 43 rdSession Supp 49 vol
1, 61), enjoying far-reaching rights of participation much beyond the traditional status of
an observer. The last group of non-State observers is constituted by international
organizations and other international bodies, the list of which has grown ever longer in
recent years (eg UNGA Res 64/3 ‗Observer Status for the International Olympic
Committee in the General Assembly‘ [19 October 2009] UN Doc A/RES/64/3; UNGA
Res 64/121 ‗Observer Status for the International Humanitarian Fact-finding
Commission in the General Assembly‘ [16 December 2009] UN Doc
A/RES/64/121; International [Humanitarian] Fact-Finding Commission). Attempts by the
European Union to be granted rights of participation closely resembling those of a full
member of the UN (UNGA ‗Participation of the European Union in the Work of the
United Nations: Draft Resolution‘ [31 August 2010] UN Doc A/64/L.67) have hitherto
failed to find approval by a majority of States in the GA.

4 Art. 9 (2) UN Charter determines representation in the GA. This rule, which is
designed to prevent the larger States from gaining an unfair edge over the smaller ones,
limits the number of representatives which may be sent to the GA to five. In practice,
this rule is primarily enforced de facto by the lack of adequate seating space in the GA
hall. Every delegation must submit appropriate credentials. Under Rule 27 Rules of
Procedure of the General Assembly (‗GA Rules of Procedure‘), the examination of
credentials must confine itself to the formal criterion of whether the document has been
correctly signed by the Head of State or Government or by the Foreign Minister.
Although this requirement was certainly fulfilled in the case of the delegates of South
Africa during the apartheid era, the GA refused to acknowledge their credentials from
1970 onwards, arguing that they had been issued by a racist minority government that
was not authorized to speak for the people of South Africa as a whole. It was during the
29th Session in 1974 that this charge was first translated into the decision that the
South African delegation was to be barred from participating in the work of the world
forum (UNGA Res 3206 [XXIX] ‗Credentials of Representatives to the 29th Session
of General Assembly‘ [30 September 1974] [GAOR 29th Session Supp 31 vol 1, 2],
together with the decision of the President of the Session, Buteflika from Algeria, 12
November 1974, UN Doc A/PV.2281 para. 76). Hitherto, conflicts over the
acknowledgement of credentials had arisen only in instances where two rival
governments both laid claim to sole representation of their countries (China,
Congo/Zaire, Yemen, Cambodia). In substance, each of these disputes concerned the
question of recognition of a government, as more recently shown in the case of the Côte
d’Ivoire where the GA recognized the credentials signed by Alassane Ouattara, the
winner of the elections held in the country in November 2010 (UNGA ‗Credentials of
Representatives to the 65th Session of the General Assembly: Report of the Credentials
Committee‘ [22 December 2010] UN Doc A/65/583/Rev.1), rejecting those of the former
President, Laurent Gbagbo, still effectively in power. According to a legal opinion
delivered by the Secretary-General in 1950, the only relevant criterion for the
recognition of a government, that is, of its right to represent a Member State, should be
that of effectiveness. However, the GA refused until 1971 to apply this criterion with
regard to China and dropped it entirely in the case of South Africa; again, in the case of
the Côte d‘Ivoire, legitimacy seems to have taken precedence over effectiveness. It may
thus be concluded that effectiveness has ceased to be the sole determinative criterion.
Since 1982, the Arab States and Iran have made repeated attempts to elbow Israel out
of the GA, but those endeavours were thwarted every time by the US‘s threats to stop
its payments of assessed contributions and, possibly, to even leave the UN (motions
that no action be taken on the proposal were adopted each time).

B. Organizational Structure
5 The GA does not only meet in plenary; most of its resolutions are prepared in
committees. Since 1993, the GA works on the basis of six main committees which are
entrusted with studying the topics assigned to them before the plenary takes the final
decisions (see also United Nations Committees and Subsidiary Bodies, System of).
These six main committees are the following:

1. i) First Committee (Disarmament and International Security Committee),

concerned with disarmament and related international security questions;

2. ii) Second Committee (Economic and Financial Committee), concerned with

economic issues;

3. iii) Third Committee (Social, Humanitarian and Cultural Committee), concerned

with social and humanitarian issues;

4. iv) Fourth Committee (Special Political and Decolonization Committee),

concerned with a variety of political subjects not dealt with by the First
Committee, as well as with decolonization;

5. v) Fifth Committee (Administrative and Budgetary Committee), dealing with the

administration and the budget of the United Nations;

6. vi) Sixth Committee (Legal Committee), tasked with legal issues (United Nations,
Sixth Committee).

6 The division of the membership into regional groups has never been determined by
the GA itself. However, in many instances the GA distributes the seats in a subsidiary
body according to regional affiliation. Thus, eg, regarding the Human Rights Council
and the International Law Commission (ILC), quotas have been set for the different
groups. In respect of elections to the International Court of Justice (ICJ), no formal
scheme exists; to date, the elections proceed on the basis of consensual traditions
according to which the five permanent members of the Security Council (‗SC‘) should
each have a judge of their nationality on the bench. The five regional groups are the
African Group, the Asian Group, the Eastern European Group, the Latin American and
Caribbean Group, and the Western European and Others Group (‗WEOG‘). Curiously
enough, the fall of the iron curtain in Eastern Europe has had no impact on the division
of European States between the Western and the Eastern Group. Since many members
of the Eastern European Group are now members of the European Union (Bulgaria,
Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia,
Slovenia), the criterion of distinction has become a purely territorial one, whereas until
1990 it had essentially been a political character. The United States does not formally
belong to the WEOG but is treated as a member for election purposes. Israel is counted
as a WEOG member in New York but not at the European headquarters of the UN.
Turkey belongs to the Asian Group but is considered a WEOG member in respect of
elections.

7 On the basis of the general authorization laid down in Art. 22 UN Charter to create
subsidiary or specialized organs, the GA has surrounded itself with a wide circle of
auxiliary institutions, which are divided into three categories. The group of procedural
committees comprises the General Committee (28 members), which consists of the
President, the Vice-Presidents of the Assembly, and the chairpersons of the Main
Committees, and is in charge of questions of agenda management (agenda setting,
duration of sessions, acceleration of procedure); and the Credentials Committee,
consisting of nine members. Two Standing Committees, the Advisory Committee on
Administrative and Budgetary Questions, as well as the Committee on Contributions,
are composed of independent experts. The largest group is comprised of the
‗subsidiary, ad hoc and related bodies‘ as they are termed by the UN Yearbook,
generally 60 to 70 subsidiary and specialized organs, whose precise number varies
(among them, for instance: United Nations Conference on Trade and Development
[UNCTAD]; United Nations Development Programme [UNDP]; United Nations
Environment Programme [UNEP]; International Law Commission; United Nations
University [UNU]). The United Nations Peacebuilding Commission, established
by UN General Assembly Resolution 60/180 of 20 December 2005 (GAOR 60th
Session Supp 49 vol 1, 96) and UN Security Council Resolution 1645 of 20 December
2005 (SCOR [1 August 2005–31 July 2006] 235), has double parenthood. The Human
Rights Council, brought into being in 2006 as the successor to the Commission on
Human Rights, is also a body whose legal foundation is provided by Art. 22 UN Charter,
whereas formerly the Commission on Human Rights was a functional sub-commission
of the United Nations, Economic and Social Council (ECOSOC) (see also United
Nations Commission on Human Rights/United Nations Human Rights Council).

8 UN General Assembly Resolution 111 (II) ‗Establishment of an Interim Committee of

the General Assembly‘ of 13 November 1947 (GAOR 2nd Session Resolutions 15),
established the Interim Committee, the purpose of which was to preserve the GA‘s
potential for action between sessions, particularly in the area of maintenance of
international peace and security. A seat was allotted to each Member State. However,
as the Soviet Union regarded the Interim Committee as an encroachment upon the
competences of the SC and refused, together with its allies, any form of co-operation,
the Committee was unable to fulfill the expectations set upon it. It has not convened
since June 1961. Accordingly, although formally still in existence, it must be considered
defunct, a piece of legal history.

C. Procedures
9 The GA Rules of Procedure, supplemented by practice, have resulted in bringing
about different kinds of GA sessions. The GA meets for its regular annual session in
New York on the third Tuesday of September in each year. Because of the large
quantity of agenda items, it usually ends just before Christmas; more and more
frequently, it continues into the new year, sometimes ending just before the start of the
new session. Special sessions, according to Art. 20 UN Charter, must be summoned by
the Secretary-General within fifteen days after the SC or a majority of the Member
States have made a corresponding request. Practice has made it clear that the veto
power under Art. 27 (3) UN Charter does not extend to a SC request for a special
session to the Secretary-General. Another category of sessions owes its creation to the
famous Uniting for Peace Resolution (1950). The resolution mandates the calling of an
‗Emergency Special Session‘ within 24 hours at the request of the SC sitting in full, any
nine members of the SC, or the majority of the members of the UN. Thus far, 28 special
sessions have taken place, and the number of emergency special sessions has risen to
10, where, each time, hotspots of international politics were on the agenda.

10 Every member of the GA—that is, every Member State—shall have one vote (Art.
18 (1) UN Charter). In principle, decisions are taken on the basis of a simple majority
(Art. 18 (3)) whereas ‗important questions‘ require a two-thirds majority (Art. 18 (2)). The
UN Charter itself identifies some of these important questions but its enumeration is not
to be viewed as exhaustive. Should a controversy arise on whether a question is
important or not, this preliminary question may be decided by simple majority, as is the
case with the determination of additional categories of important questions (Art. 18 (3)).
No fixed legal standards are to be gleaned from the practice of the GA. In 1965, for
example, it was decided that UN General AssemblyResolution 2105 (XX)
‗Implementation of the Declaration on the Granting of Independence to Colonial
Countries and Peoples‘ of 20 December 1965 (GAOR 20th Session Supp 14, 3), which
had generated considerable controversy because of its call—directed primarily at the
colonial powers—for the dissolution of all military bases in colonial territories, did not
require adoption by a qualified majority. On the other hand, the decision taken in the
fundamental UN General Assembly Resolution 1668 (XVI) ‗Representation of China in
the United Nations‘ of 15 December 1961 (GAOR 16th Session Supp 17, 66), that any
motion to alter the representation of China in the UN was an important question, was
overturned in 1971 (UNGA Res 2758 [XXVI] ‗Restoration of the Lawful Rights of the
People‘s Republic of China in the United Nations‘ [25 October 1971] GAOR 26th
Session Supp 29, 2) although the political and legal assessment of the situation
between the People‘s Republic of China and the Republic of China remained
unchanged. It seems apt to conclude that the GA exercises an exclusively political
discretion in that respect.

11 The two-thirds majority necessary for decisions on important questions is

determined on the basis of the number of members present and voting. Abstaining
members are not included (Rule 86 GA Rules of Procedure). A vote is carried if there
are at least twice as many ‗yeas‘ as ‗nays‘.

12 By far the greater part of GA resolutions are adopted with a large majority, often
even without any opposition. Even in case of lack of opposition, the characterization as
adoption by unanimity would be misleading inasmuch as some States have actually
abstained or would have abstained if directly asked. Until the 28th Session, it was the
practice of the group of Western States to voice disagreement with the substance of a
resolution by abstention rather than by a negative vote, except in extreme cases. Not
least because of the undesirable impression likely to be created by abstentions, informal
voting is often preferred to the ‗roll-call‘ (Rule 87 GA Rules of Procedure). The resulting
decision is then referred to as having come about ‗without a vote‘, ‗without objection‘,
‗by acclamation‘, or ‗by consensus‘, terms which all have slightly different connotations.
The landmark Friendly Relations Declaration (1970), for instance, was adopted ‗without
a vote‘, which is, more often than not, erroneously interpreted as a unanimous vote; the
same voting pattern characterized the 2005 World Summit Outcome (UNGA Res 60/1
[16 September 2005] GAOR 60th Session Supp 49 vol 1, 3). In fact, decision-making by
consensus is possible even when reservations are made to parts of a resolution before
or after the vote. Only the complete rejection of a draft by at least one Member State will
prevent the adoption of a resolution by consensus.

13 Under Article 19 UN Charter, the right to vote is forfeited if a State falls in arrears
with its contributions for the last two full years. At the start of each Session, the
President makes an open statement or draws attention to a letter of the Secretary-
General specifying which States have transgressed the borderline and are therefore
deprived of the right to vote. An exceptional authorization may be granted to a State if it
is able to show that the failure to pay is due to conditions beyond its control.

14 As the Soviet Union and France, in particular, refused to contribute to the costs of
the first peacekeeping operation of the UN in the Near East and the peacekeeping
operation in the Congo, for both of which appropriations had been made in the regular
United Nations budget, the situation envisaged by Art. 19 UN Charter arose for both
countries in 1964. The two States took the view that the ICJ‘s Certain Expenses of the
United Nations (Advisory Opinion), which had declared that these costs were part of the
organization‘s expenses in the sense of Art. 17 (2), was erroneous. At any rate, they
argued, the loss of the right to vote was not automatic but had to be decided, as an
‗important question‘ in the sense of Art. 18 (2), by the GA with a two-thirds majority.
Since the United States insisted on the application of Art. 19 to the debtors in default,
but the application of the corresponding sanction to two permanent member of the SC
seemed politically inconceivable, an attempt was made during the 19th Session in
1964–65 to deal only with subjects which could be decided without a vote, on the basis
of a consensus arrived at beyond the confines of the GA. Finally, in August 1965, an
agreement was reached that the question of the applicability of Art. 19 with regard to
costs arising out of those two peacekeeping missions would not be raised. The rule has
thus been stripped of some of its practical relevance, but is otherwise still used against
defaulting debtors, with the assumption that it operates ipso iure.

D. Powers
15 The basic rule determining the powers of the GA is Art. 10 UN Charter, according to
which the GA may ‗discuss any questions or any matters within the scope of the present
Charter or relating to the powers and functions of any organs provided for in the present
Charter‘, and to address the results of its deliberations to the Member States or to the
SC in the form of ‗recommendations‘. The powers of the GA ratione materiaethus go as
far as the competence of the world organization as such, whereas all the other principal
organs may only take action with regard to specific sectors of the competences of the
UN. Considering the breadth of the goals and principles laid down in Arts 1 and 2, it
becomes apparent that there are few questions deserving discussion by the world forum
which might not by right be taken up by the GA. Of course, Art. 2 (7) prohibits
intervention by the UN in ‗matters which are essentially within the domestic jurisdiction
of any state‘. However, it is precisely through Arts 1 and 2, as well as Art. 55, that the
scope of the concept of ‗domestic matters‘ has been narrowed down considerably.
Particularly in cases where racial discrimination is concerned, the GA had long since
refused to admit any recourse to Art. 2 (7). With regard to the protection of human rights
in general, a similar reading of the rule has progressively gained ground. At a first stage,
discussion of matters under the effective control of States was considered permissible
only if a high degree of gravity was found to exist, for which the formula of a ‗consistent
pattern of gross and reliably attested violations of human rights‘ was coined (UN
ECOSOC Res 1503 [XLVIII] [27 May 1970] ESCOR 48th Session Supp 1A, 8).
Currently, this cautious approach, which only permits focusing on extremely serious
situations, seems to have been definitively overcome. Under the procedure of Universal
Periodic Review before the Human Rights Council (UN HRCouncil ‗Resolution 5/1:
Institution-Building of the United Nations Human Rights Council‘ [18 June 2007] UN Doc
A/HRC/5/L.11), each State is now pushed to submit to a general review of its human
rights practices, irrespective of whether it has ratified the International Covenant on Civil
and Political Rights (1966) and International Covenant on Economic, Social and Cultural
Rights (1966) or other fundamental treaties for the protection of human rights. All 192
Member States have accepted such scrutiny of their human rights record. It stands to
reason that the GA, on the other hand, cannot have lesser rights than its subsidiary
body.

16 Arts 11–14 contain variations on the basic theme stated in Art. 10 without adding
anything fundamentally new. However, the function fulfilled by Art. 11 is not unimportant
inasmuch as it expressly affirms that the GA may take action for the preservation of
international peace and security, that is, in an area that is under the primary
responsibility of the SC. Art. 14, finally, which establishes a right to make
recommendations with regard to situations which might impair the ‗general welfare or
friendly relations among nations‘, also invites a broad reading of the powers of the
GA ratione materiae. The purpose of this rule was primarily to facilitate peaceful
change, whose failure to materialize led to the decline and fall of the League of Nations.

17 Seen as a whole, the powers of the GA may be divided into internal and external
powers. While the GA possesses some true decision-making powers in the area of
internal organization, such powers have been denied it in almost all other areas of its
activity.

18 Among the elective powers allotted to the GA, the most important ones are: the
election of the non-permanent members of the SC (Art. 23 (1)) and of the members of
ECOSOC. The appointment of ICJ judges is undertaken by the GA and the SC jointly,
but in two separate votes (Art. 8 ICJ Statute); while the Secretary-General is elected by
the GA upon a recommendation made by the SC (Art. 97 UN Charter). Elections must
also be held to fill positions at the subsidiary and special organs created under Arts. 22
inasmuch as they have limited membership; today, the election of the members of the
Human Rights Council stands out on account of its political importance. Two more
competences belonging to the class of internal powers are the organizational power
rooted in Art. 22 and the power to establish regulations for the staff of the organization
(Art. 101). The power to ‗consider and approve the budget‘ (Art. 17) is also usually
mentioned in this connection. However, the approval of the budget unfolds external
effects inasmuch as it supplies the basis for the determinations of the Member States‘
contributions according to the scale of assessment established by the GA as well (Art.
17 (2)).

19 Cases on the borderline between internal and external competences are the
decision, upon the recommendation of the SC, to admit new members (Art. 4 (2)), the
suspension of membership rights (Art. 5), as well as expulsion from the organization
(Art. 6). The same holds true for the GA‘s participation in matters of UN Charter
amendment. Under Art. 108, draft amendments must be adopted by the GA with a two-
thirds majority. For their entry into force, the ratification by two-thirds of the Member
States, including all permanent members of the SC, is required (United Nations Charter,
Amendment).

20 Given the breadth of the mandate established by Arts 10–14, it is nearly impossible
to give a detailed substantive account of the external powers of the GA as they have
unfolded in practice; all the more so since the GA does not usually specify the legal
bases of its actions. In functional terms, these powers may be divided into a
comprehensive right of discussion, linked to a related right to the procurement of
information of any kind, and an equally sweeping right to make recommendations. After
four decades dominated by the issue of self-determination of colonial peoples and the
fight against South Africa‘s policy of apartheid, the main centre of the GA‘s attention has
undergone a strategic shift. There remains a strong focus on the rights of the
Palestinian people. However, economic advancement, disarmament, and ecological
protection of the planet have come to the foreground, together with strong emphasis on
economic and social rights, in particular attempts to reduce the frightening levels of
poverty in the world.
21 Another objective steadfastly pursued by the GA is the codification and progressive
development of international law, according to Art. 13 (1) (a). In this context, the GA
leaves most of the ‗non-political‘ questions to the ILC, but it prefers to assign other
matters to special committees (such as those set up to search for a definition
of aggression, the establishment of principles on friendly relations). The 1982 UN
Convention on the Law of the Sea was also the fruit of a special committee created in
1967, whose mandate was then taken over by the Conference on the Law of the Sea
(Conferences on the Law of the Sea). Today, the issue of environmental protection
increasingly turns up on the GA‘s agenda. Finally, the GA may also ask the ICJ to
render advisory opinions. Famous are the Nuclear Weapons Advisory Opinions,
the Israeli Wall Advisory Opinion (Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory), and the Accordance with International Law of the
Unilateral Declaration of Independence in Respect of Kosovo (Advisory
Opinion) (Kosovo).

22 In principle, those resolutions of the GA that go beyond the scope of its internal
powers possess no binding force. In terms of international law, such resolutions are
legal acts which are not capable of creating direct legal obligations as such. The
relevant provisions of the UN Charter unmistakably classify them as recommendations.
Nevertheless, it has frequently been argued in recent times that resolutions adopted
unanimously or by consensus should be considered as legally binding stricto sensu if
they purport to set forth legal rules. This reasoning applies primarily to resolutions which
are specifically identified as ‗Declarations‘. Two types of such ‗Declarations‘ may be
distinguished. On the one hand, a ‗Declaration‘ may set out legal propositions that are
conceived of as aims of legal policy. The most prominent case in point is the Universal
Declaration of Human Rights (1948). Originally, therefore, the Universal Declaration did
not constitute a set of binding legal rules, but some of its provisions have crystallized
as customary international law in the more than 60 years since its adoption. On the
other hand, a ‗Declaration‘ may intend to codify existing rules of customary international
law or particularize the provisions of an international treaty. This latter classification
applies, in particular, to the Friendly Relations Declaration. In its judgment in the Military
and Paramilitary Activities in and against Nicaragua Case (Nicaragua v United States of
America), the Court acknowledged that the Friendly Relations Declaration stands as an
act mostly embodying existing customary law (at paras 188–91). Reference to the
Friendly Relations Declaration was also made in the Legality of the Threat or Use of
Nuclear Weapons (Advisory Opinion) ([1996] ICJ Rep 226 para. 102). It is true that, in
particular, a declaration adopted by consensus embodies much more common legal
substance than the dispersed elements of legal practice, mostly taken from the
diplomatic intercourse of countries of the ‗First World‘, that in the past were taken as the
factual basis of rules of customary law. Resolutions under which the GA simply takes
note of a set of rules do not confer on those rules any authoritative legitimacy (see,
eg, UNGA Res 56/83 ‗Responsibility of States for Internationally Wrongful Acts‘ [12
December 2001] [GAOR 56th Session Supp 49 vol 1, 499], which took note of the ILC
Draft Articles on Responsibility of States for Internationally Wrongful Acts); however, the
GA thereby acknowledges that the instrument concerned is a worthwhile piece of legal
craftsmanship, which is likely to obtain the formal seal of approval in the near future.
E. Legal Status within the UN System
23 The relationship of the GA to the subsidiary and specialized organs created on the
basis of Art. 22 is based on the principle of subordination. The GA is empowered to
determine the composition and the mandate of these organs, to determine their rules of
procedure, to give binding instructions, and to accept or reject the results of their work.
Of course, some of these organs have achieved a considerable amount of
independence so that their status now approaches that of a specialized agency; this is
the case, in particular, with UNCTAD, UNDP, UNEP, and UNICEF. On the other hand,
the GA is not precluded from binding itself. For instance, it specifically created the UN
Administrative Tribunal for the settlement of staff disputes on the basis
of UN General Assembly Resolution 351 (IV) ‗Establishment of a United Nations
Administrative Tribunal‘ of 24 November 1949 (GAOR 4th Session Resolutions 49), as
an independent organ for the administration of justice, and must therefore accept its
judgments as authoritative (Effect of Awards of Compensation Made by the United
Nations Administrative Tribunal [Advisory Opinion] [1954] ICJ Rep 47 at 53). With effect
from 1 January 2010, the UN Administrative Tribunal was abolished; it has been
replaced by the Dispute Tribunal and, for purposes of appeal, the Appeals Tribunal.

24 The GA‘s relationship with the other principal organs varies from case to case. The
SC is subject to the authority of the GA only inasmuch as it must report on its activities
to the GA on a yearly basis under Art. 15 (1). However, it is significant that the GA has
not discussed these reports for many years and that it merely takes note of them, rather
than to adopt a formal decision in the sense of an acceptance or rejection. The reason
for this self-restraint is that the SC, in the exercise of the responsibility for the
maintenance of international peace and security bestowed on it by Art. 24, enjoys a
wide discretionary freedom of decision. Nevertheless, world peace and security are also
within the GA‘s competence (Art. 12) although it is—in conformity with
its general functional status—restricted to discussion and the adoption of
recommendations. Two rules intended as delimitations of power for the benefit of the
SC have lost their practical relevance. First, the GA is supposed to refrain from making
any pertinent recommendations as long as the SC is dealing with an issue (Art. 12 (1));
however, the GA seems to feel less than bound by this rule. The term ‗while the
Security Council is exercising in respect of any dispute or situation the functions
assigned to it in the present Charter‘, which lay down a clear ban on recommendations,
is read in practice as preventing the GA from making a statement only in those cases
where the SC has already acceded to its wishes. If this does not occur, particularly
when a permanent member of the SC has exercised its veto right, the GA feels free to
adopt lengthy resolutions and to criticize the SC in harsh language; for many years,
South Africa and Palestine were the most prominent cases in point, and in the case of
Palestine there is no end to the parallelism in sight. On the other hand, Art. 11 (2)
second clause states that the GA must transfer any issue touching upon international
peace and security to the SC before or after discussion, as soon as ‗action‘ becomes
necessary for the resolution of the problem. Despite a remark to this effect by the ICJ in
its Certain Expenses of the United Nations (Advisory Opinion) (at 163), it remains
disputed to this day whether this term refers to any and all actions necessary for the
resolution of a conflict, or whether its meaning is merely restricted to coercive measures
by the SC on the basis of Chapter VII. This controversy, which also concerns the
interpretation of Art. 12 (1), peaked in the dispute about the Uniting for Peace
Resolution. Under this Resolution, of which mention has already been made (see para.
9 above), the GA may, particularly in case of a breach of peace or an aggressive act,
recommend collective measures to be taken by the Member States if the SC fails to
assume its primary responsibility for world peace and international security. The Soviet
Union had always argued that this assumption of a subsidiary power by the GA was
illegal because, in case of a threat to or breach of the peace, or of an act of aggression
in the sense of Art. 39, which requires the taking of measures, recommendations made
by the GA would encroach on the powers of the SC. In fact, the Uniting for Peace
Resolution has merely been used as a legal basis for peacekeeping operations and for
the summoning of emergency special sessions, but never for a military reaction against
an act of aggression. Besides, the GA is not prepared to acknowledge Art. 11 (2) as
restricting its power to make recommendations in any way.

25 In contrast to the SC, ECOSOC works under the authority of the GA (Art. 60) and
does not possess any exclusive powers. It serves as the central forum for discussing
international economic and social issues, and for formulating policy recommendations
addressed to Member States and the UN system. Its reports are discussed in depth by
the GA. The influence exercised by the GA on ECOSOC is so far-reaching that, in
practice, its status hardly differs from that of the subsidiary and special organs created
under Art. 22. The debate on a strengthening of the status of ECOSOC has dragged on
for years. Since the challenges to be addressed by the international community in the
field of economic and social policies are increasing year after year, ECOSOC may have
found its legitimate place as a forum where discussions are held which could not be
fitted into the time frame available for the work of the GA.

26 It need hardly be emphasized that the ICJ, as ‗principal judicial organ‘ of the UN
(Art. 92), is not subject to supervision by the GA. Rule 13 (b) GA Rules of Procedure
envisaged reports of the ICJ to the GA from the very beginning, but the ICJ only started
to submit these reports in 1968 (available in electronic format since 1985–86). They
have been acknowledged, but never discussed. The same is true of the reports of
the International Criminal Court (ICC).

27 The Secretary-General must support the work of the GA insofar as this is within his
powers. Essentially, he is the executive arm of the GA. The GA may impart to him any
kind of mandate. On the other hand, the Secretary-General is obliged under Art. 12 (2)
to report to the GA the activities of the SC.

28 With regard to the specialized agencies (Arts 57 and 63), the GA plays only a
modest role. Its most important power is to examine their administrative budgets and to
work towards the co-ordination of financial and budget policies (Art. 17 (3)) by means of
recommendations. Some progress has actually been made here (co-ordination of
financial and staff rules, joint auditing). Apart from this, however, the specialized
agencies have preserved their budgetary and financial independence; their obligations
vis-à-vis the UN do not go beyond a duty to consult. A notable source of controversy
during the decolonization process was the GA‘s relevant policy. Some specialized
agencies, particularly the World Bank Group, were not willing to comply with the GA‘s
recommendation in support of the colonial liberation struggle and of a total breaking off
of relations with Portugal and South Africa. From a legal standpoint, the
recommendatory character of GA resolutions applies to the specialized agencies as
well; any other view would necessarily sacrifice the independence of the specialized
agencies with their widely differing composition and the principle, used in some
organizations, of weighted voting.

F. Evaluation
29 Legal terms are not sufficient to describe the position and importance of the GA. On
the other hand, any political evaluation will inevitably be guided by more subjective
terms.

30 To begin with, the GA, in its role of a periodically meeting world forum, represents a
place of communication whose value is inestimable. Every government may establish
contacts and enter into talks, not only with reference to the UN, but also in bilateral
relations between States. The annual sessions thus provide a unique opportunity,
particularly for smaller States that cannot afford diplomatic representations in each and
every one of the worlds almost 200 States, to resolve pressing foreign policy questions
with friends or foes.

31 A review of the GA‘s history shows distinctive phases of development. In the first ten
years of its existence, the GA was under the political leadership of the United States.
Two events representative of this era were the creation of the Interim Committee and
the adoption of the Uniting for Peace Resolution. The period after 1955, when the
stagnation in membership was halted by the accession of fifteen new States, saw a
growing influence of the Soviet Union and its allies. In particular, the USSR emphatically
supported all anti-colonial tendencies. The year 1960 brought the first great wave of
admissions of newly independent States to the UN. From then on, the GA was
increasingly under the sway of the States of developing countries that were no longer
willing to accept the political leadership of the Soviet Union. It was no longer possible to
speak of an identity of interests, given that, since the solution of the colonial question,
the focus of the GA‘s activity moved to economic and social questions. By economic
standards, the Soviet Union, together with its allies, belonged for a long period to the
group of the ‗haves‘, which are the addressees of the developing countries‘ demands for
material improvement of their situation. The culmination point of the formal dominance
of the Third World in the GA were the years 1974 and 1975 when the GA proclaimed
first a New International Economic Order (NIEO) and ‗determined‘ that ‗zionism is a
form of racism and racial discrimination‘ (UNGA Res 3379 [XXX] ‗Elimination of All
Forms of Racial Discrimination‘ [10 November 1975] GAOR 30th Session Supp 34, 83).
Soon it turned out that such ‗victories‘ in voting battles were largely illusory. No constant
pattern of power relations has emerged after the democratic revolution in Eastern
Europe. The reputation of Russia was seriously damaged by its brutal actions
in Chechnya; the United States and the United Kingdom were severely criticized on
account of their invasion of Iraq in 2003 (Iraq, Invasion of [2003]); while China still
remains in the background as far as world order issues are concerned, being primarily
concerned with its economic interests. On many occasions, the United States is also
viewed as blindly supporting Israel to the disadvantage of its Arab neighbours. Thus,
none of the great powers has been acknowledged as exercising legitimate leadership at
universal level through the GA.

32 Given the present distribution of votes in the GA, the original inclination, prevalent
particularly in the Western World, to extend the powers of the GA at the expense of
those of the SC, has diminished. The veto right of the permanent members of the SC is
progressively seen as a necessary counterweight to the GA majority‘s claim, bolstered
by an egalitarian reasoning, to assume the role of a global legislative organ.

Select Bibliography
 F Vallat ‗The Competence of the United Nations General Assembly‘ (1959) 97

RdC 203–92.
 SD Bailey The General Assembly of the United Nations: A Study of Procedure

and Practice (Pall Mall Press London 1964).

 G Goodwin ‗The General Assembly of the United Nations‘ in E Luard (ed), The
Evolution of International Organizations (Thames and Hudson London 1966) 42–

67.
 J Kolasa Rules of Procedure of the United Nations General Assembly (Zakład

narodowy im. Ossolińskich Wroclaw 1967).

 S Xydis ‗The General Assembly‘ in J Barros (ed), The United Nations, Past,

Present, and Future (The Free Press New York 1972) 64–103.
 DC Dicke and HW Rengeling Die Sicherung des Weltfriedens durch die

Vereinten Nationen (Nomos Baden-Baden 1975).

 E Klein ‗Zur Beschränkung von Mitgliedsrechten in den Vereinten Nationen‘

(1975) 23 VN 51–56.
 D Ciobanu ‗Credentials of Delegations and Representation of Member States at

the United Nations‘ (1976) 25 ICLQ 351–81.

 C Tomuschat ‗Die Generalversammlung der Vereinten Nationen im Spiegel der

Praxis: Ein Rückblick nach der 30. Jahrestagung‘ (1976) 24 VN 49–58.

 B Finley The Structure of the United Nations General Assembly: Its Committees,

Commissions and other Organisms vols 1–3 (Oceana Dobbs Ferry 1977).
 E Luard The United Nations: How it Works and What it Does (Macmillan London

1979).
 M Schaefer ‗Notstandssondertagungen der Generalversammlung‘ (1983) 31 VN

78–83.
 M Halberstam ‗Excluding Israel from the General Assembly by a Rejection of its

Credentials‘ (1984) 78 AJIL 179–92.

 JF Flauss and P Singer ‗La Verification des Pouvoirs à l‘Assemblée Générale

des Nations Unies‘ (1985) 31 AFDI 620–52.

 M Tabory ‗Universality at the UN: The Attempt to Reject Israel‘s Credentials‘

(1988) 18 IsraelYBHumRts 189–209.

 R Wolfrum ‗Ursprüngliche Aufgabenzuweisung und jetzige Aktivitäten der
Vereinten Nationen: Faktischer Wandel und normative Bewertung‘ in R Wolfrum
(ed), Die Reform der Vereinten Nationen: Möglichkeiten und Grenzen (Duncker &

Humblot Berlin 1989) 129–56.

 J Crawford ‗The General Assembly, the International Court and Self-
determination‘ in V Lowe and M Fitzmaurice (eds), Fifty Years of the International
Court of Justice: Essays in Honour of Sir Robert Jennings (CUP Cambridge

1996) 585–605.
 LB Sohn ‗Enhancing the Role of the General Assembly of the United Nations in
Crystallizing International Law‘ in J Makarczyk (ed), Theory of International Law
at the Threshold of the 21st Century: Essays in Honour of Krzysztof

Skubiszewski (Kluwer The Hague 1996) 549–61.

 E Suy ‗The Role of the UN General Assembly‘ in H Fox and G Abi-Saab
(eds), The Changing Constitution of the United Nations (British Institute of

International and Comparative Law London 1997) 55–69.

 B Simma (ed), The Charter of the United Nations: A Commentary vols 1–2 (2nd

ed OUP Oxford 2002).

 E McWhinney ‗Separation or Complementarity of Constitutional Law-making
Powers of United Nations Security Council, General Assembly and International
Court of Justice‘ in —— Studi di Diritto internazionale in onore die Gaetano

Arangio-Ruiz (Editoriale Scientifica Napoli 2004) 339–54.

 JP Cot A Pellet and M Forteau (eds) La Charte des Nations Unies: Commentaire

Article par Article (3rded Economica Paris 2005).

 M Divac Öberg ‗The Legal Effects of Resolutions of the UN Security Council
and General Assembly in the Jurisprudence of the ICJ‘ (2005) 16 EJIL 879–

906.
 M Rama-Montaldo ‗Contribution of the General Assembly to the Constitutional
Development and Interpretation of the United Nations Charter‘ in RStJ
Macdonald and DM Johnston (eds), Towards World Constitutionalism: Issues in

the Legal Ordering of the World Community (Nijhoff Leiden 2005) 493–513.

 MJ Peterson The UN General Assembly (Routledge London 2006).

 AE Boyle and CM Chinkin The Making of International Law (OUP Oxford

2007).
 S Barriga and A Alday ‗The General Assembly and the Rule of Law: Daring to

Succeed?‘ (2008) 12 MaxPlanckUNYB 381–408.

 M Wood ‗The General Assembly and the International Law Commission: What
Happens to the Commission‘s Work and Why?‘ in I Buffard and others
(eds), International Law between Universalism and Fragmentation: Festschrift in

Honour of Gerhard Hafner (Nijhoff Leiden 2008) 373–88.

 D Zaum ‗The Security Council, the General Assembly, and War: the Uniting for
Peace Resolution‘ in V Lowe (ed), The United Nations Security Council and War:
the Evolution of Thought and Practice since 1945 (OUP Oxford 2008) 154–

74.
 DW Bowett P Sands and P Klein Bowett’s Law of International Institutions (6th ed

Sweet and Maxwell London 2009).

Select Documents
 Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter)
(Advisory Opinion)[1962] ICJ Rep 151.
 Charter of the United Nations (adopted 26 June 1945, entered into force 24
October 1945) 145 BSP 805.
 Rules of Procedure of the General Assembly (31 December 1984) UN Doc
A/520/Rev.17.
 UNGA Res 377 (V) ‗Uniting for Peace‘ (3 November 1950) GAOR 5th Session
10.
 UNGA Res 2625 (XXV) ‗Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in Accordance
with the Charter of the United Nations‘ (24 October 1970) GAOR 25th Session
Supp 28, 121.
A. Development of the Economic and Social Council (ECOSOC)
1 ECOSOC is one of the six principal organs of the UN established under the UN
Charter (Art. 7 (1)). It has the broad mandate of coordinating international economic,
social, and other related works of the UN specialized agencies, of the functional
commissions and the five regional commissions, and other humanitarian matters in the
field of human rights. The origins of ECOSOC can be traced back from the League of
Nations, particularly, Art. 23 (e) of the Covenant, through which the member States had
assigned the League with the responsibility of supervising the executions of matters
concerning (p. 1669) the humanitarian, economic, social, and any other relevant
matters.1 However, ongoing developments within the League of Nations were stopped
due to the outbreak of World War II. The Washington Conversations on International
Peace and Security Organization (Dumbarton Oaks Conference), which was attended
by the representatives of the United States, United Kingdom, Russia, and China, came
up with a proposal of a general international organization under the name of The United
Nations.2 During the Dumbarton Oaks Conference, the States having faced at first hand
World War II embraced the idea of having economic and social cooperation
incorporated in the United Nations agenda. This was to be a continuation of what had
been proposed in August 1939 by the Special Committee of the League of Nations on
the Development of International Co-operation in the Economic and Social Affairs (the
Bruce Committee): the establishment of a new Central Committee for the Economic and
Social Questions to manage those particular areas.3 The UN effort was to be part of
other international organizations already in existence such as the Bretton Woods
institutions: the International Bank for Reconstruction and Development (IBRD), today
commonly referred to as the World Bank, and the International Monetary Fund (IMF).
Other institutions included the International Trade Organization which never matured
but negotiations on which led to the formation of the General Agreement on Trade and
Tariffs (GATT). During the Dumbarton Oaks Conference, there was a general
recognition of the close relationship between peace and security as the principal
objective of the UN and economic and social development. With this in mind, the
‗Proposals for the Establishment of a General International Organization‘ foresaw the
formation of an Economic and Social Council which was to be a subsidiary body to the
General Assembly. The conference proposed that the world organization be constituted
of four principal bodies: General Assembly, Security Council, International Court of
Justice, and Secretariat. The General Assembly which would be composed of all the
members of the Organization would have a subsidiary body which they called Economic
and Social Council. This Council would consist of eighteen members elected by the
General Assembly, and the members would discharge their duties including
international economic, social, and human rights matters under its auspices. 4 During the
United Nations International Organizations Conference in San Francisco in 1945, the
Economic and Social Council (ECOSOC) was made a principal organ of the UN in view
of the realization and recognition of the importance of economic and social cooperation
and the need for the economic reconstruction after World War II, and certain powers
were added. ECOSOC was to supervise the economic and social activities of the UN in
general and to oversee the activities of the specialized agencies which already existed
as well as those which were to be formed later. Generally ECOSOC was to be the
organ responsible for (p. 1670) the coordination of the activities of the entire UN
including specialized agencies which were not organizations or organs of the UN per
se but were to be made part of the UN System. The rationale behind this was the
concept of functionalism, that is the cooperation between States in different fields which
would in turn lead to peace and harmony in the world in general. However, the initial
intentions of making ECOSOC a subsidiary organ of the GA are not without implications
regarding the way in which it functions. In particular, there remain close links between
the GA and ECOSOC in the Charter (cf Arts 60, 61, 63, 66). After the Charter was
signed, a Preparatory Commission of the UN was formed, which made provisional
arrangements for the first sessions of all organs. The Preparatory Commission prepared
Draft Rules of Procedure for all organs, including ECOSOC. These were adopted,
without changes, by ECOSOC during its first session.5 In the subsequent sessions,
ECOSOC accepted most of the recommendations of the Preparatory Commission
regarding the Council‘s main areas of activity. As a consequence, ECOSOC was first
concerned with reconstruction, trade, employment, population, transport,
communications, social welfare, statistics, as well as the status of women, health,
narcotic drugs, and human rights, foreshadowing much of its later activity. 6
2 A critical difficulty for ECOSOC in fulfilling its role under the Charter at least until 2005
has been defining the scope of its functions. With the roles of other principal organs
such as the Security Council and the GA rather well defined under the Charter, the
same cannot be said for ECOSOC. It also became clear that many developing countries
regarded the GA as a superior organ in comparison to ECOSOC and as such they
wanted most of their initiatives to be launched through the GA.7 The failure of ECOSOC
to face these challenges—especially regarding the political changes in the developing
world—has contributed to the fragmentation of the UN economic mechanisms, leading
to the establishment by the GA of new organizations namely in the fields of trade and
development, in particular the UN Conference on Trade and Development (UNCTAD),
and in industrial development the UN Industrial Development Organization
(UNIDO).8 As a result of these difficulties that the Council has faced since its
incorporation in the UN Charter as one of its principal organs, the work of the Council
has been the subject of ongoing attempts at clarification of role and general reform. 9
3 ECOSOC has undergone a number of reforms since it was established as a principal
organ of the UN. Apart from the formal amendments of Art. 61 (1), which took place in
the 1960s in line with the process of the decolonization which expanded UN
membership, other changes were directed towards improving the working methods
of (p. 1671) ECOSOC and making it a more effective organ. The GA has undertaken
continuous efforts to reform ECOSOC.10 GA Res 32/197 established the office of the
Director-General of the International Economic Co-operation which however had limited
powers and resources.11 It also rationalized the work of the second committee of the
General Assembly to deal with economic and social matters, and it mandated the
rationalization of the work programme and the subsidiary machinery of ECOSOC which
was however unsuccessful.12 Significant changes were brought about as a result of end
of the Cold War in the 1990s. Significantly, GA Res 50/227 provides that ECOSOC
should act as the central mechanism for the coordination of the activities of the UN
system and its specialized agencies and supervision of the subsidiary bodies. 13 The
resolution also sought to make the work of ECOSOC more effective, efficient, and result
oriented. Some of these measures included were involvement of the Secretary-General
in preparing periodic reports on the progressive developments of the Council, 14 and a
call for closer cooperation with the Bretton Woods institutions. At its 57th meeting, the
GA established an Ad Hoc Working Group on the Coordinated and integrated
implementation of and follow-up to the major UN conferences and summits in the
economic and social fields.15 During the 2005 World Summit Heads of States and
Government called for further strengthening of ECOSOC in paras 155 and 156 of the
World Summit outcome document16 and entrusted it with new functions. Following up to
the summit, the GA adopted Res 61/16 on the ‗Strengthening of the Economic and
Social Council‘. In order to implement GA Res 61/16, ECOSOC adopted decision
E/2006/274 which provides further details on the modalities of involvement of
ECOSOC‘s subsidiary machinery in the preparation of the first 2007 Annual Ministerial
substantive Review (AMR) and Development Cooperation Forum (DCF). There have
also been ECOSOC-internal reform efforts directed towards improving its relationship
with international financial institutions and other governmental organizations, improving
its working methods, expanding the scope of its application and establishment of new
subsidiary bodies to focus on the emerging issues especially in the developing
countries.17 Agreement on a (p. 1672) comprehensive ECOSOC reform by the Council,
which is expected to elaborate further on GA Res 61/16 and ECOSOC decision
2006/206 regarding the adaptation of its working methods, is still pending.
B. Position of ECOSOC in the Charter
4 As a principal organ of the UN, ECOSOC can execute its duties and responsibilities
without the guidance of influence of any other organ of the UN including the GA. It can
interpret its mandate, its functions and powers autonomously. The doctrine of implied
powers applies.18
5 However, some functions of the ECOSOC and the GA overlap. These overlaps and
potential conflicts of function, even though they were noted as early as during the San
Francisco Conference, still remain unclear. For instance, Art. 13 entrusts the GA with
functions which parallel the functions and powers of ECOSOC set forth in
Art. 62.19 Art. 60 places ECOSOC under the authority of the GA in respect of the
carrying out of the organizations function of international cooperation in social and
economic matters. More specific powers of the GA in respect of ECOSOC are provided
for in Art. 66. These provisions, and given that the GA is the principal organ of the UN
with representation of all member States (Art. 9) having the responsibility and functions
to discuss any questions or any matters within the scope of the Charter (Art. 10), raise
the question of the relationship between the two organs and if GA can be regarded as
the main organ overseeing the functions and the responsibilities of ECOSOC.20 The
general answer to this question is found in Art. 7 (1) having included ECOSOC as one
of the five principal organs of the UN, and therefore ECOSOC should not be subject to
the authority of any other principal organ when executing its mandates unless this is
explicitly provided for by the Charter itself. Essentially, however, work undertaken by the
GA and ECOSOC has a large potential for synergy given the overlap of functions. A
good example is the establishment of the Ad Hoc Working Group on the coordinated
and integrated implementation of and follow-up to the major UN conferences and
summits by the GA during its 57th session, whose work also benefits ECOSOC. The
working relationship between the two organs is also provided for in the Rules of
Procedures of the two organs. In particular, Rule 4 (1) (c) of ECOSOC‘s Rules of
Procedure provides that ‗[s]pecial sessions of the Council shall be held upon the
request of the General Assembly and of the Security Council‘.
C. Composition of ECOSOC, Article 61 (1)
6 Art. 61 (1) states that ECOSOC shall consist of fifty-four members of the UN elected
by the GA.
(p. 1673) I. The Size of ECOSOC
7 This current composition was attained after two amendments were made to this
provision in 1963 and 1971 respectively so as to accommodate the increasing number
of the members of the UN with the end of colonialism in most parts of the world. The
initial provision in the Charter had been for eighteen members, a number agreed upon
after the United States proposal for a twenty-four-member council was objected to by
the United Kingdom arguing that such a body was too large to function effectively. GA
Res 208 (III) took note of the interest by some delegations in improving the work of the
Council and in particular to increase the number of members of the Council. 21 Argentina
and other countries supporting this proposal had argued already at the first session of
the GA that increased membership would give the Council a broader geographical
representation and thereby improve its work,22 while the representative of India had
opposed the proposal arguing that a more equitable geographical distribution was
required rather than an increase in the number of council members.23 The proposal was
rejected as many members felt that it was premature and unwise to amend the Charter
at that time. With the increase in the general membership of the UN in the 1950s the
idea of equitable distribution in all bodies of the UN was flagged up again. 24 GA Res
1991(A) (XVIII), which increased the number of Security Council members to fifteen with
five permanent members and ten non-permanent seats, was followed by GA Res
1991(B) (XVIII), which increased the number of ECOSOC membership from eighteen to
twenty-seven.25 Out of the nine new members of the Council, seven were to be from
African and Asian States, one from Latin America, and one from Western European and
other States. This first amendment of Art. 61 came into force 31 August 1965 having
achieved the required number of ratifications according to Art. 108.26 With the general
enlargement of the UN membership in the 1960s when most of the colonized countries
gained their independence, the need arose for a second amendment of Art. 61 to
achieve a better equitable representation of the enlarged UN membership. GA Res
2847 (XXVI) enlarged the number of ECOSOC members to the present fifty-four, on the
rationale that ‗enlargement of the Economic and Social Council will provide broad
representation of the United Nations membership as a whole and make the Council a
more effective (p. 1674) organ for carrying out its functions under Chapters IX and X of
the Charter of the United Nations‘.27 The amendment entered into force on 12 October
1973.
8 There has been debate ever since on the efficacy of the enlarged membership of
ECOSOC with some members advocating for a smaller number of the council members
meeting at regular basis rather than the present Council of fifty-four.28 The idea of
equitable geographical distribution and representation could also be achieved in a
smaller ECOSOC which would be more effective, not politically motivated but rather
having representatives with advanced knowledge and experience on the issues under
the mandate of ECOSOC, focusing on the fast developing issues of an era where trade
liberalization, globalization, and related matters of international cooperation are
increasing.
II. Members of ECOSOC
9 Art. 61 (1) states that the members of ECOSOC shall be elected by the GA. This
provision reflects the close functional relationship between these two organs of UN and
the influential role that the GA plays in the UN in general. Art. 61 (1) should be read in
conjunction with Art. 18 (2) which includes election of the members of ECOSOC among
the functions of the GA and details its voting procedure.29
10 One of the principles of the UN formulated in the Charter is the equality of all its
member States (Art. 2 (1)). Equality means that the organs of the UN should have
equitable, ie proportionate, geographical distribution of representatives from all regions
of the World.30 In particular for ECOSOC, the principle of equitable geographical
distribution was established by GA Res 2847 (XXVI).31 In the same resolution, the GA
decided on the distribution of the ECOSOC seats among five regional groups of the UN
as follows:32 (a) fourteen members from the African States; (b) eleven members from the
Asian States; (c) ten members from the Latin American States; (d) thirteen members
from Western European and other States; and (e) six members from socialist States of
Eastern Europe. The pattern is also contained in a footnote to Rule 145 of the Rules of
Procedure of the GA.33 The allocation of the seats is based on geographical
representation broadly in use throughout the UN, and even though there have been
calls from the developing countries to increase the numbers of their representations in
ECOSOC,34 the pattern has not been one of the major concerns of the Council and has
not changed since 1971. Therefore currently the pattern of representation remains:
fourteen (14) African States, eleven (11) Asian States, six (6) Eastern European States,
ten (10) Latin American and Caribbean States, and thirteen (13) Western European and
other States.
(p. 1675) 11 Membership carries the right to participate in the Council‘s deliberation
and to vote. States not represented on the Council at any given time may be invited to
participate in the deliberations of the Council but without vote (Art. 69). Non-members
may also be represented on subsidiary bodies of the Council.
D. Terms of Office of Members and Election Procedure, Article 61 (2)
12 The members of the Council are elected by the GA for a three-year term. The term
of office of an elected member begins on 1 January of the year following election and it
ends on 31 December following the election of the successor (Rule 139 GA Rules of
Procedure).35 According to Rule 140 of the GA Rules of Procedure, if a member decides
to terminate its membership of the council before its term of office ends, a by-election
should be held separately during the next session of the GA to elect a new member.
The newly elected member‘s term of office shall begin on 1 January of the year
following their election. Pending a by-election, ECOSOC may meet and take
decisions.36 Rule 41 of the Rules of Procedure of ECOSOC requires the quorum of one-
third of its members for a meeting and a majority of its members for taking any decision.
13 On the election procedure, Art. 61 (2) cl 1 states that ‗[e]ighteen Members of the
Economic and Social Council shall be elected each year for a term of three years‘, and
‗[a] retiring member shall be eligible for immediate re-election‘. To promote greater
continuity of membership, it had already been decided at San Francisco that terms of
office of ECOSOC members should overlap to ensure continuity in the work of the
Council. Currently, one-third of the members of ECOSOC are determined by ‗staggered‘
elections at every regular session of the GA. Art. 18 (2) and Rule 145 of the GA Rules
of Procedure declare the election of the members of ECOSOC an ‗important question‘
for the GA, requiring a two-thirds majority of the members present and voting. Voting is
by secret ballot (Rule 92). Further details of the election procedure are set forth in Rules
93–95.There are no substantive criteria for election of a member to ECOSOC.
14 Art. 61 (2) cl 2 permits immediate re-election of a retiring member, and that is
reproduced in Rule 146 of the GA Rules of Procedure. There is no provision on the
number of times a member can be re-elected but practice indicates that there is no limit
on the number of re-elections.
15 The five permanent members of the Security Council have been continuously re-
elected since becoming members of the ECOSOC, making them de facto permanent
members of ECOSOC as well.37 Other States have also been frequently re-elected to
ECOSOC.38
16 The Bureau is the executive organ of the ECOSOC elected by the Council at the
beginning of each annual year. It consists of the President and four Vice-Presidents.
The main functions of the bureau are: to propose the agenda, draw up a programme of
work, and organize the session with the support of the UN Secretariat. In accordance
with Art. 72 (1) that provides that the Council shall adopt its own method of selecting its
President, (p. 1676) Rule 18 of the Rules of Procedure provides that the Council is to
elect a President and four Vice-Presidents from among the representatives of its
members at the first meeting each year, and these five then will constitute the Bureau.
The election of the President is based on the principle of equitable geographical rotation
among the regional groups represented in the Council, that is the African States, Asian
States, Eastern European States, Latin American and Caribbean States as well as
Western and other States. The same principle of equitable geographical representation
is applied in the election of the four Vice-Presidents, meaning that they should be
elected from regional groups other than the one in which the President belongs (Rule 20
Rules of Procedure).
17 ECOSOC receives secretarial support from the Department of Economic and Social
Affairs of the UN Secretariat.
E. First Election after Enlargement to Fifty-four Members, Article 61
(3)
18 The now defunct provision of Art. 61 (3) dealt with the first election of members to
the Council after membership was enlarged to fifty-four.
F. Representation of Members, Article 61 (4)
19 Each member of ECOSOC is entitled to only one representative (Art. 61 (4)). This is
similar to Art. 23 (3) which states that ‗each member of the Security Council shall have
one representative‘. That representative has to cast the vote that each member of
ECOSOC holds under Art. 67 (1). In contrast to paras 1–3, this paragraph of Art. 61 has
not been amended. It has to be implemented by ECOSOC through its Rules of
Procedure (Art. 72 (2)).39 Each member of ECOSOC determines the diplomatic rank of
its representative. The representative can be accompanied by alternate representatives
and advisers as may be required.40 The credentials of the representatives as well as the
names of the alternative representatives and advisers should be handed in to the SG no
less than three days before the first meeting.41 In accordance with diplomatic practice,
the credentials must be issued in writing either by the Head of State, the Head of
Government, the minister of foreign affairs, or by the permanent representative to the
UN of the State concerned.42
20 Ministers present the members at the high-level segment of the Council‘s annual
sessions. ECOSOC holds a substantive four-week season every July. The GA in Res
61/16 in pursuance of paras 155 and 156 of the 2005 World Summit Outcome decided
to maintain the segment structure of the substantive session of the ECOSOC.43 The
following segments exist: High-level segment ending with a Ministerial Declaration,
Dialogue segment with the Executive Secretaries of the regional commissions,
Coordination (p. 1677) segment, Operational activities segment,44 Humanitarian affairs
segment, and General segment.
21 ECOSOC cannot decide on questions of membership in the UN within the meaning
of Art. 4 or of proper representation of a member in the UN. These matters fall under the
competence of the GA.45

Footnotes:
1
No special organ was created for economic and social matters. Instead, a structure of
advisory committee developed under the Council. See LW Pauly, The League of
Nations and the Foreshadowing of the International Monetary Fund (Essays in
International Finance No 201, Princeton University: International Finance Section, 1996)

6 ; M Hill, The Economic and Financial Organization of the League of

Nations(Carnegie Endowment for International Peace 1946) ; P Sands and P

Klein, Bowett’s Law of International Institutions (6th edn, Sweet and Maxwell 2009) 2-

065-6 .
2
R Hilderbrand, Dumbarton Oaks: The Origins of the United Nations and the Search for

Postwar Security(University of North Carolina Press, 1990) ; Proposals for the

Establishment of a General International Organization, UNCIO III, also in US Dept State
Bull XI, 38, GHS, 665–74; <http://www.ibiblio.org/pha/policy/1944/441007a.html>
accessed 12 August 2011.
3
PG Taylor and AJR Groom, The United Nations at the Millennium: The Principal

Organs (Continuum 2000) 100.

4
ibid, 3 .
5
London, 23 January–18 February 1946.
6
See G Rosenthal, The Economic and Social Council of the United Nations (Dialogue

on Globalization Occasional Papers No 15/2005, Friedrich-Ebert-Stiftung 2005) 1 .

7
Taylor and Groom (n 3) 112 .

8
ibid .
9
The UNDP‘s Human Development Report of 1992 proposed to replace ECOSOC
which was deemed ‗too large and unwieldy‘ (UNDP, Human Development Report

1992 (United Nations 1992) 82 ) with a Development Security Council which would
have the mandate of developing a global policy framework for all key economic and
social areas as well as providing a policy coordination framework, and preparing a
global budget on the flow of development resources. The report of the Commission the
Global Governance published in 1995 noted that ECOSOC had fallen far short of its
main role of coordination and overall insight in the economic and social fields, and the
reason the Commission gave for this was that there is still no clear guidance on the role
of ECOSOC to date even though the Charter clearly defines the powers and functions
of the council. The Commission proposed a creation of a new Economic Security
Council and the universalization of ECOSOC (Commission on the Global

Governance, Our Global Neighborhood (OUP 1995) 236–302 ). The Nordic

countries reports on UN Reforms proposed strengthening the role of ECOSOC as a
coordinator, and they suggested convening ECOSOC so that it can address the major
developments in the economic, social and the related fields of its mandates. The Nordic
UN Reform Project, The United Nations in Development: Strengthening the UN through
change: Fulfilling its Economic and Social Mandate(1996) 11, 32–35. See generally TG

Weiss and S Daws, The Oxford Handbook on the United Nations (OUP 2007) 142 .
10
UNGA Res 41/213 (11 December 1986) UN Doc A/RES/41/213 and 45/254 A-B (21
Decmber 1990) UN Doc A/RES/254 A-B aimed at reviewing the efficiency of the
administrative and financial functioning of the UN in general including ECOSOC.
11
UNGA ‗Restructuring of the economic and social sectors of the UN‘ UNGA Res

32/197 (20 December 1977) UN Doc A/RES/32/197, was adopted by GA on the

proposal by the Ad Hoc Committee on the Restructuring of the Social and Economic
Sectors of the UN System that the GA had set up to focus inter alia on restructuring the
ECOSOC. The report of the Ad Hoc Committee is annexed to UNGA Res 32/107 (15
December 1977) UN Doc A/RES/32/107.

12
ibid .
13
UNGA ‗Further measures for the restructuring and revitalisation of the United Nation
in the economic, social and related fields‘ UNGA Res 50/227 (24 May 1996) UN Doc
A/RES/50/227.
14
UNGA Res 50/227 (n 13) para 43.
15
UNGA ‗Integrated and coordinated implementation of and follow upto the outcomes
of the major United Nations conferences and summits in the economic and social fields‘
UNGA Res 57/270B (3 July 2003) UN Doc A/RES/57/270B.
16
UNGA ‗The 2005 World Summit Outcome‘ UNGA Res 60/1 (16 September 2005) UN
Doc A/RES/60/1.
17
See for example ECOSOC Res 2001/27 (24 July 2001).
18
See J Klabbers, An Introduction to International Institutional Law (2nd edn, CUP

2009) 53 on the applicability of the implied powers doctrine to organs of

international organizations.
19
2nd and 3rd Committees of the GA.
20
For general discussion see H Weitz, M Childs, and J Glassermann, An Approach to

the Analysis of Resolutions of the Economic and Social Council (UNITAR, 1972) ;
Taylor and Groom (n 3).
21
UNGA ‗Participation of Member States in the work of the Economic and Social
Council‘ UNGA Res 208 (III) (18 November 1949); see also UNGA Res 409 B(V) (1
December 1950), calling for the implementation of Res 280 (III) as soon as possible.
22
See Argentina: Proposal to increase the membership of the Economic and Social
Council to twenty-four(1947–48) UNYB 94.
23
cf UNGA ‗Distribution of membership in subsidiary organs of the Economic and
Social Council‘ UNGA Res 207 (III) (18 November 1948).
24
Already UNGA Res 409 C (V) (1 December 1950) had considered it desirable ‗that
the largest number of Member States compatible with efficiency should be enabled to
participate in the organization and work‘ of ECOSOC. In 1956, eighteen developing
country members proposed to amend the Charter in order to increase membership of
ECOSOC, UN Doc A/3139. UNGA Res 1300 (XIII) (10 December 1958) proposed
enlargement.
25
UNGA ‗Question of equitable representation in the Security Council and Economic
and Social Council‘ UNGA Res 1991(B) (XVIII) (17 December 1963).
26
UNGA ‗Amendments to the Rules of Procedure of the General Assembly consequent
upon entry into force of the amendments to Articles 23, 27, and 61 of the Charter of the
United Nations‘ UNGA Res 2046 C (XX) (8 December 1965).
27
UNGA ‗Enlargement of the Economic and Social Council‘ UNGA Res 2847 (XXVI)
(20 December 1971). The resolution took note of ECOSOC Res 1621 (LI) (30 July
1971).
28
See UN Doc E/1988/75, Annex I, 17, 47, fn 12, Annex IV, para 17. RP Supp 6, vol IV,
para 7; Supp 7, para 4.
29
Art. 18 (2) is repeated verbatim in Rule 83 of the GA Rules of Procedure.
30
The principle of equality also applies to voting power in ECOSOC, Art. 67 (1).
31
UNGA Res 2847 (XXVI) (n 27), paras 5–6. Already in 1948, the GA had resolved that
due regard should be given to an equitable geographical distribution of the membership
in the subsidiary organs of ECOSOC, cf UNGA ‗Distribution of membership in
subsidiary organs of the Economic and Social Council‘ UNGA Res 207 (III) (18

November 1948) .

32
ibid, para 14 .
33
UN Doc A/520/Rev. 15.
34
UN Docs A/C.2/L.1190 and A/PV.2026.
35
Lists of members of ECOSOC are published in the Repertory of Practice under
Art. 61 and in the UNYB.
36
RP Supp 6, vol IV, para 21.
37
Apart from China, which was not re-elected from 1961 to 1971, cf RP Supp 7, vol IV,
para 4.
38
Egypt, Pakistan, Brazil, Australia, Germany. RP Supp 7, vol IV, para 4.
39
UN Doc E/5715/Rev 2, Rules of Procedure of the Economic and Social Council.
40
Rule 16 of the Rules of Procedure.
41
Rule 17 of the Rules of Procedure.
42
See RP Supp 6, vol III, paras 16–19.
43
See UNGA ‗Strengthening of the Economic and Social Council‘ UNGA Res 61/16 (20
November 2006) UN Doc A/RES/61/16.
44
See UNGA ‗Further measures for the restructuring and revitalization of the United
Nations in the economic, social and related fields‘ UNGA Res 48/182 (14 January
1994).
45
UNGA ‗Recognition by the United Nations of the representation of a member state‘
UNGA Res 396(V) (14 December 1950). See also Rule 72 with fn 4 of ECOSOC‘s
Rules of Procedure.
The International Court of Justice

A. Historical Development*
I. The World Court of the League of Nations Period
1 The ICJ follows in the tradition of the PCIJ which was the first international judicial
body empowered to settle all legal disputes between all States recognizing such power.
It constituted an important achievement of the organized international community. Thus,
an understanding of the present Court requires some explanation of the former. 2
2 The PCIJ was established on the initiative of the League of Nations and was the first
realization of the idea of a World Court to exercise jurisdiction in all legal disputes
between all States. Endeavours made during the second Hague Peace Conference
(1907), not only to improve the existing system of arbitral treaties, but also to create a
real ‗Cour de Justice Arbitrale‘, had been unsuccessful.3 The Conference did not adopt
a proposal laid before it by Germany, Great Britain, and the United States. The
experience of the catastrophe of World War I was necessary for the plan of a
permanent Court with general competence to be realized.
3 In Art. 14 of the League of Nations Covenant, the Council of the League was charged
with formulating and submitting plans for adoption by the member States regarding the
establishment of a Permanent Court of International Justice. This Court was to be
competent to hear and determine any dispute of an international character which the
parties thereto submitted to it. Furthermore, the Court was also to be competent to give
advisory opinions on any dispute or question referred to it by the Council or by the
Assembly of the League.
(p. 1903) 4 This formulation indicated that the jurisdiction of the new PCIJ was to
depend on the will of the parties, as was moreover underlined by Art. 13 (1) of the
Covenant. A committee of jurists was instructed to prepare a report on the organization
of the future Court accompanied by a Preliminary Draft Statute. The Council discussed
the report and the preliminary Draft Statute, and laid it with some amendments before
the Assembly, which adopted the revised draft on 13 December 1920. The attempt to
introduce obligatory jurisdiction did not succeed. Thus, the basic features of arbitral
jurisdiction, as they had existed before World War I, remained unchanged.
5 In adopting the Statute, the Assembly of the League was of the opinion that a vote
alone would not be sufficient to establish the PCIJ, but that each State represented in
the Assembly would formally have to ratify the Statute. Accordingly a protocol adopting
the Statute was submitted to the members of the League. The protocol of signature, to
which the Statute of the PCIJ was annexed,4 was opened for signature and ratification
on 16 December 1920. After the majority of the members of the League had fulfilled this
requirement it entered into force on 2 September 1921. It was revised in 1929, and the
revised text entered into force in 1936.5 The Protocol of Signature was not part of the
Covenant of the League of Nations but a separate agreement. Thus, also non-members
of the League could become parties to it.
6 The PCIJ was not an organ of the organization of the League, but was linked with it in
several respects: the conditions by which States that were neither members of the
League nor mentioned in the Annex to the Covenant could gain access to the Court
were laid down by the Council (Art. 35 PCIJ Statute); the members of the PCIJ were
elected by the principal political organs of the League, the Assembly, and the Council
(Art 4, 8, 10 PCIJ Statute); the expenses of the PCIJ were borne by the League (Arts
33, 32 PCIJ Statute); the Council and the Assembly were entitled to request the PCIJ to
give an advisory opinion (Art. 14, cl 3 League of Nations Covenant).
7 The Statute marked an important step forward with regard to traditional arbitration
treaties, even though obligatory jurisdiction had failed to gain acceptance. According to
the so-called optional clause, the members of the League and the other States named
in the Annex to the Covenant could ‗at any time declare that they recognize as
compulsory ipso facto and without special agreement in relation to any other State
accepting the same obligation, the jurisdiction of the Court in all legal disputes‘ (Art. 36
(2)). This optional obligation was expected to match the corresponding declarations of
many States, thus achieving an effect coming close to obligatory jurisdiction of the PCIJ
and it was hoped that over time more and more States would submit to its jurisdiction—
without reservations—thus approaching obligatory jurisdiction. This hope was at that
time illusory and remains so today.6
(p. 1904) 8 The new features of the PCIJ which are characteristic elements of
international institutional jurisdiction as opposed to ad hoc international jurisdiction were
the following: it was a permanent institution governed by its own Statute and Rules of
Procedure; its Statute had the legal character of a multilateral treaty; its rules of
procedure were fixed and binding on the Court and the parties; its hearings were public;
its registry was a permanent body functioning, inter alia, as the channel of
communication with the governments and the parties to a dispute; it was open to all
States; it applied international law as defined in the Statute; it was intended, in its body
as a whole, to represent the main forms of civilization and the principal legal systems of
the world—at that time predominantly European and American and taking little account
of dependent countries.
9 Between its inauguration in 1922 and the discontinuation of its activities in 1940,
which was followed by the transfer from the occupied Netherlands to Geneva, the PCIJ
dealt with twenty-nine contentious cases and delivered twenty-seven advisory opinions.
II. The Establishment of the ICJ
10 During World War II, from 1942 on, plans were made either to re-establish the PCIJ
or to create a new institution. In the Moscow Declaration on General Security of 30
October 1943, the governments of the United States, the United Kingdom, the Soviet
Union, and China declared ‗that they recognize the necessity of establishing at the
earliest practicable date a general international organization, based on the principle of
the sovereign equality of all peaceloving States, and open to membership by all such
States, large and small, for the maintenance of international peace and security‘. 7 This
declaration led to exchanges between the Four Powers at Dumbarton Oaks resulting in
the publication in October 1944 of proposals for the establishment of a general
international organization, which was to include an international court of justice as its
‗principal judicial organ‘. After it was decided at the Yalta Conference in February 1945
to convene the UN Conference on International Organization at San Francisco, a legal
committee composed of 44 States was instructed to elaborate a Draft Statute. The Draft
proposed by the committee largely followed, mostly literally, the Statute of the PCIJ. The
following questions of principal importance were submitted to the Conference for
decision: whether to found a new Court or continue with the former; the tasks of the
Court as the principal judicial organ of the UN; whether recognition of its jurisdiction
should be obligatory or voluntary; and the election of judges.
11 The San Francisco Conference adopted the Statute at the same time as the UN
Charter on 26 June 1945. The Charter constituted a new Court but provided for the
continuation of the tasks of the PCIJ. Art. 92, cl 2 points out that the ICJ Statute is
based upon that of the PCIJ. Art. 1 of the present Statute states that the ICJ is
established by the Charter.8 It follows from this that, on the one hand, the ICJ is a new
institution and, on the other, its relationship with the PCIJ is characterized by continuity.
(p. 1905) 12 Nevertheless, from a legal point of view, discontinuity exists between the
two Courts. The ICJ is neither legally identical with the PCIJ nor its legal successor. The
United States, the Soviet Union, and a number of other participants of the San
Francisco Conference were not members of the Statute of the PCIJ. On the other hand,
a number of signatories of the old Statute were not represented at the Conference.
Furthermore, it seemed that a new Court was more consistent with the provision in the
Charter that all member States of the UN would ipso facto be parties to the Court‘s
Statute; moreover it was felt that the PCIJ formed part of an older legal order in which
the European States had a dominant position.9 Consequently, the PCIJ was formally
dissolved by the last (21st) Assembly of the League of Nations on 18 April 1946.10
13 Although the ICJ was neither legally identical with the PCIJ nor its legal successor,
continuity of tasks and competences was nevertheless to be preserved by the
establishment of the new Court, a fact that is reflected in the extensive adoption in the
ICJ Statute of provisions of the PCIJ Statute concerning the competence, organization,
and procedure. This made it possible to treat the case law of the two Courts as a
continuously developing system for the international administration of justice.
14 At the same time, steps were taken to transfer to the ICJ, as far as possible, the
competence of the former Court according to the declarations under the optional clause.
Art. 36 (5) of the present Statute provides:
Declarations made under Article 36 of the Statute of the Permanent Court of
International Justice and which are still in force shall be deemed, as between the parties
to the present Statute, to be acceptances of the compulsory jurisdiction of the
International Court of Justice for the period which they still have to run and in
accordance with their terms.
There are only few declarations dating from the 1920s and 1930s which remain in force
today (2012); with the exception of the declaration of Luxembourg they are all
declarations of Latin American States. Art. 36 (5), which is of a transitional nature, was
only once invoked successfully,11 although not in a fully convincing manner, in
the Nicaragua Case. In its judgment on jurisdiction the ICJ decided that Nicaragua as
the applicant could rely on its declaration of submission to the jurisdiction of the PCIJ
which had been made in 1929 for an indefinite period. This declaration had been issued
by Nicaraguan authorities according to its constitutional procedures. The instrument of
ratification, however, never arrived at the Secretariat of the League of Nations in
Geneva. In the opinion of the ICJ this shortcoming did not prevent the declaration from
still being valid according to Art. 36 (5).12
15 Continuity between the two Courts is also promoted by Art. 37 of the Statute:13
Whenever a treaty or convention in force provides for reference of a matter to a tribunal
to have been instituted by the League of Nations, or to the Permanent Court of
International Justice, (p. 1906) the matter shall, as between the parties to the present
Statute, be referred to the International Court of Justice.
The ICJ Yearbook for 2007–08 lists five treaties concluded earlier than 1946, two of
which are multilateral, and three bilateral.
B. The ICJ as an Organ of the United Nations
16 The ICJ is one of the six principal organs established by the UN Charter (Art. 7).14 It
occupies, however, a special position in relation to the other five principal organs into
whose hierarchical structure it is not integrated because it is not exclusively an organ of
the UN. This position resembles to a certain degree the legal status of the PCIJ, which
was established outside the framework of the League of Nations reflecting thus the
independence of the Court as a judicial organ.
17 While the competences of the five other principal organs are defined in the text of
the Charter itself, those concerning the ICJ are only broadly circumscribed in
Chapter XIV (Arts 92–96). Art. 92 merely states that the ICJ is the principal judicial
organ of the UN, while making reference for all further details to the Statute of the Court
which includes provisions on the organization of the ICJ, its jurisdiction in contentious
cases, its competence to give advisory opinions, and the basic rules of procedure. The
fundamental provisions laid down in Chapter XIV concern:
1. (a) the relationship between UN members and the ICJ and the access of non-
members to the Statute (Art. 93 (1)and (2));
2. (b) the obligation of litigants to comply with decisions in cases to which they are
parties and the competence of the SC to make recommendations or decide, at
the request of a party, upon measures to be taken to give effect to a judgment
(Art. 94);
3. (c) the freedom of choice for UN members to entrust the solution of their
differences to other tribunals (Art. 95);
4. (d) the competence of the GA or the SC to request advisory opinions and to
authorize other UN organs and specialized agencies to request such opinions
(Art. 96).
I. The Statute as an Integral Part of the Charter
18 The Statute is annexed to the Charter, of which it forms an integral part; it is thus
equal in status to the provisions of the Charter (Art. 92 (1) UN Charter). The reasons for
placing the ICJ Statute in an annex to the main document were two-fold: on the one
hand it followed the historical precedent of the Statute of the PCIJ which was a separate
treaty not legally dependent on the League of Nations Covenant;15 since the ICJ was
conceived as a principal organ of the UN its Statute was to be integrated into the new
world organization so that the text of the Statute and the text of the Charter were to be
treated equally. The technical separation of the two texts followed therefore rather
practical reaons concerning the extent of the Statute, which considerably exceeded
the (p. 1907) extent of the Articles devoted to the other principal organs; the balance
within the text of the Charter itself would otherwise have been disturbed.16
19 It follows from the legal character of the Statute as an integral part of the Charter
that amendments to the Statute require the same procedures as those concerning the
text of the Charter itself (Chapter XVIII UN Charter; Art. 69 ICJ Statute).17 An exception
is made only with regard to the participation of non-member States of the UN which may
become parties to the Statute according to special provisions which are not included in
the Statute (Art. 69 ICJ Statute).18
20 From the fact that the Charter and the Statute govern the general role and
responsibilities of the Court it follows that the Court is bound not only by the provisions
of the Statute and the special provisions in the Charter, but also by the general
provisions of the Charter applying to all organs of the UN. Whether this may imply
limitations to the freedom of action of the Court is controversial; it seems, however, that
the Court considers itself bound by the Charter provisions also in the exercise of its
judicial function and not only with regard to its relation to the UN.19
II. The Relationship between the ICJ and the Other Organs
21 The principal organs of the UN, taken as a whole, exercise all the functions which
the UN members have assigned to the Organization in the founding treaty of San
Francisco of 26 June 1945 and its subsequent amendments. The ICJ is coordinated
with the other organs. Its competence is delimited from that of the other organs and is
exercised independently, as is the case for the other organs. This is particularly
important for the relationship between the ICJ and the principal political organs, the SC
and the GA. The competence of each organ is determined by the scope of the functions
allocated to it. This mutual independence does not preclude the competence of one
organ from being conditional upon the action of another, eg proposals of the SC to the
GA, or an ICJ judgment as a condition for recourse to the SC according to Art. 94
(2) UN Charter. The question of whether the ICJ is empowered to review SC resolutions
taken under Chapter VII of the Charter was raised in the Lockerbie Cases and was
expected to be one of the main issues in the merits phase. As the case was
discontinued by agreement of the parties,20 this question has so far not been answered
by the Court. It is, however, largely accepted that the ICJ has the power to review SC
resolutions in the context of a case and that its findings on the resolution have de
iure binding force only on the parties of the case.21
(p. 1908) 22 The functions of the ICJ are not limited with regard to the functions of the
other organs, as is the case with the GA. While the GA has the general competence to
consider any question or matter within the scope of the Charter or relating to the power
and functions of any organs, it may, however, according to Art. 12 UN Charter, not
make any recommendation in regard to a dispute or situation in which the SC is
exercising its function. Such reservation does not exist in respect to the exercise of the
functions of the ICJ. The applicability of Art. 12 UN Charter was, however, one of the
relevant topics to be decided by the ICJ in the last two advisory opinions, where the
competence of the GA to request an advisory opinion was challenged due to the fact
that the SC was exercising its functions with regard to the situation. 22
23 The fact that the functions of the ICJ with regard to the other organs, in particular
the SC, are neither limited nor exclusive implies the occurrence of functional overlap,
known as ‗functional parallelism‘.23 In several cases the Court and the SC have been
contemporaneously seized by the same party. This did not constitute an obstacle to the
exercise of the ICJ‘s competence, even in face of the adoption in parallel of Security
Council resolutions,24 because the ICJ and the political organs of the UN each have their
own range of functions. In particular, the functions of the SC and the ICJ concerning the
settlement of disputes are exercised independently from one another. The SC, as well
as the ICJ, may take action in a dispute between States within the framework of their
respective competences: the SC in accordance with Chapters VI and VIIof the Charter,
the ICJ when it has jurisdiction on a contentious legal case in accordance with the
Statute, or when it gives an advisory opinion on a legal question at the request of an
international organ or body authorized by the Charter or in accordance with it. 25 The ICJ
has repeatedly stated that the fact that a subject is being dealt with by the SC cannot be
an obstacle to the exercise of jurisdiction in a case concerning the same matter and that
there is not or cannot be anything irregular in the simultaneous exercise of their
respective functions,26 because ‗[t]he Council has functions of a political nature assigned
to it, whereas the Court exercises purely judicial functions. Both organs can therefore
perform their separate but complementary functions with respect (p. 1909) to the same
events.‘27 Serious problems of the simultaneous exercise of power regarding the same
matter arose for the first time in the Lockerbie Cases,28 where, three days after the
closing of the oral hearings on provisional measures, the SC acting under Chapter VII of
the Charter adopted UNSC Res 748 (1992). In this resolution the SC decided, inter alia,
that Libya must surrender to the United Kingdom and the United States for trial the
persons charged with the terrorist action against a PanAm flight forced down over
Lockerbie (Scotland). The ICJ found that the circumstances of the case were not such
as to require the exercise of its power to indicate provisional measures. It underlined,
however, that the parties as members of the UN were obliged to accept and carry out
the decisions of the SC in accordance with Art. 25, and that in accordance with Art.
103 of the Charter the obligation of the parties in that respect prevailed over their
obligations under any other international agreement. But the ICJ did not consider it
necessary to determine definitely in the phase of provisional measures the legal effect
of the resolution of the SC nor to determine the question of its jurisdiction to entertain
the merits of the case. The question remained unsolved even in the judgment on
preliminary objections, where the ICJ found that UNSC Res 748 (1992) and 883 (1993)
were adopted after the filing of the application on 3 March 1992 and that therefore, ‗if
the Court had jurisdiction on that date, it continues to do so‘. As to the objection of the
United States arguing that the Libyan claims have become moot because of these
resolutions, the ICJ stated that the objection did not have ‗an exclusively preliminary
character‘ and could therefore be considered only in the merits phase of the case. As,
however, the parties agreed to discontinue the cases, the question has so far not been
answered by the Court.29 The problem of the simultaneous seizing of the SC and the
Court was also invoked in the Advisory Opinions concerning the Legal Consequences
of the Construction of a Wall and Unilateral Declaration of Independence of Kosovo;
however, the Court consistently underlined the different character of its functions with
regard to those of the SC.30
24 Although the SC and the ICJ exercise their competence on their own responsibility,
they are mutually obliged to take into account the actions of the other organ. As far as
the SC is concerned, Art. 36 (3) of the Charter explicitly determines that the SC shall
take into consideration that legal disputes should, as a general rule, be referred by the
parties to the ICJ. In this context the action of the SC in the Lockerbie Case is of
particular interest because it underlines that mutual respect of the respective functions
is tenable only so long as no aspect of political relevance leads the SC to act in a
manner as to render impossible a juridical solution by the Court.31
(p. 1910) 25 Finally, mention shall briefly be made of the discussion whether the UN
Charter may be considered as coming close to a constitution of the world
community.32 A comparison of the distribution of functions of the UN Organization
among the principal organs with the constitutional separation of powers of the supreme
organs of national governments may support this view only insofar as all activities
exercised within the framework of the UN Organization are assigned to one organ or to
the cooperation of organs and as all legal acts of any organ are imputed to the UN as a
legal person. This is the case for all actions in international legal relations as well as
within the national jurisdiction of any UN member State.33 But the comparison cannot
reach further: governmental power is in principle all-embracing; national courts and
tribunals decide on behalf of this power which guarantees their authority and the
execution of their judgments. The UN, however, exercises only certain public functions
conferred on it by the Charter. The UN political organs do not correspond to the
executive branch of government and the legislative bodies of a State, and the ICJ is not
endowed with general competence to guarantee the maintenance of the rule of law in
the same way as national courts. Nevertheless, there can be no doubt that the
fundamental principles and obligations of the UN Charter, which is the basic covenant of
the international community, reflect the framework of the world constitution, which,
however, by its nature will always differ in several respects from a national constitution.
III. Institutional Aspects with regard to the ICJ as an Organ of the UN
26 As a consequence of the ICJ‘s position as a principal organ, it follows that the
judges themselves are members of this organ. The members of the other principal
organs, with the exception of the SG, are member States or representatives of member
States, not individuals. In the case of organs which do not consist of all UN members,
States as such are elected to take part in them, not the delegates themselves (Arts
23, 61, 86UN Charter). Only the members of the ICJ are individuals elected in their
individual capacity.34
27 Furthermore, it follows from the fact that the ICJ is an organ of the UN that the
expenses of the ICJ are borne by the UN. The budget of the Court which is considered
and approved by the GA, includes the personnel and operational expenses of the ICJ,
eg salaries, allowances, and compensation as well as retirement pensions of the
members of the Court and the Registrar.35 The fact that the budget of the ICJ forms (p.
1911) part of the budget of the UN can indirectly promote or impede the functioning of
the ICJ.36
28 The special position of the ICJ within the framework of the Organization, which is an
inheritance from the times of the PCIJ, is also marked by the fact that the staff of the
Registry does not belong to the staff of the UN Secretariat. The legal position and duties
of the staff members are determined in general provisions of the Statute and in more
detail in the Rules of Procedure and the staff regulations drawn up by the Registry and
approved by the ICJ (Art. 21 ICJ Statute; Part II Rules of Court). They are, however, as
far as possible, in conformity with the staff regulations and rules of the staff of the
Secretariat (Art. 21 ICJ Statute, Art. 28 (4) of the Rules).37
29 The Court is not responsible to any organ of the UN for the exercise of its judicial
functions. In particular, it did not consider itself bound by the provision of Art. 15 (2) UN
Charter according to which the ‗General Assembly shall receive and consider reports
from the other organs of the United Nations‘. Nevertheless, since 1968, it reports
annually on its activities to the GA. The report covers the period from 1 August of the
preceding year to 31 July of the current year and gives a short overview of the cases
pending before the Court and the decisions taken during the preceding year. The report
is not referred to a main committee, but since 1989 it is briefly discussed by the plenary
and then recorded in a decision. This reflects the fact that the ICJ functions
independently from the GA. In its reports the ICJ strives to enhance the understanding
of its role and responsibilities within the UN. The report is presented to the GA by the
President of the Court who takes this opportunity to draw the attention of the Assembly
also to general issues, such as the jeopardy for the unity of international law as a
consequence of the proliferation of international courts and tribunals and possible
means of remedy.38 Since the ICJ is an independent court, deciding cases in its own
name, its position is of a sui generis character as compared to all other organs of the
UN.
30 Like the other principal organs, the ICJ is authorized to frame rules for carrying out
its functions. In particular, it is to lay down Rules of Procedure.39 The current Rules of
Procedure, adopted 14 April 1978, are the result of a general revision. 40 A committee for
the revision of the Rules is working to streamline the proceedings in order to cope with
the increasing workload of the Court. Minor revisions have already been adopted on 5
December 2000, aiming among other things, at shortening the duration of certain
incidental proceedings such as preliminary objections (Art. 79 Rules of Court) and
counter-claims (Art. 80 Rules of Court).41 In 2005 the Court decided to abandon its
practice (p. 1912) to review the Rules as a whole, but to examine instead particular
rules and promulgate their amendment as required.42 By introducing in 2001 ‗Practice
Directions‘ for the use of States appearing before the Court,43 the Court furthermore
elaborated guidelines for shortening the proceedings, for preventing functional collisions
in the designation of the same person as judge ad hoc and agent in pending cases or
providing a time limit for the designation of former members of the Court as agent,
counsel, or advocate. The latest amendment of the Practice Direction dates from 20
January 2009.44
IV. The ICJ as the ‘Principal Judicial Organ’ of the United Nations
31 The ICJ has special characteristics which distinguish it from other international
judicial institutions. It is the only international judicial body which is open to all States,
first of all to UN members but also to non-members.45 It could, therefore, become, and
even was conceived as, a general court of the international community. The
incorporation of the ICJ within the UN Charter suggests that the UN considered itself to
be representing the whole international community. Since the ICJ is empowered to hear
all kinds of legal disputes and is not restricted to specialized legal fields, it is still today
the only judicial body that applies generally binding international law as broadly defined
in Art. 38 (1) ICJ Statute. The ICJ is therefore in a better position than any other judicial
institution to contribute through its case-law to the development of general international
law.46 In particular some of its advisory opinions were of far-reaching effect, such as the
opinion defining the characteristics of the legal personality of an international
organization which are in practice applied to all international organizations endowed
with functions to be exercised by their organs in the course of international
relations,47 as well as the three Advisory Opinions delivered in the context of the South-
West Africa Cases, in particular the Namibia opinion on the international responsibility
of a State resulting from physical control, not from sovereignty, over a particular
territory.48 Of particular importance was also the Advisory Opinion on the Legality of the
Threat or Use of Nuclear Weapons, in which the ICJ found that the threat or use of
nuclear weapons would generally be contrary to the rules of international law, but that
nevertheless it could not ‗reach a definitive conclusion as to the legality or illegality of
the use of nuclear weapons by a State in an extreme circumstance of self-defence, in
which its very survival would be at stake‘.49 Mention has also to be made of
the Wall opinion where the Court not only gave (p. 1913) detailed explanations of the
legal consequences for all States flowing from the illegal construction of a wall in the
occupied Palestinian territory, but also took position in the debate concerning the term
‗armed attack‘ in Art. 51 UN Charter.50 The jurisprudence of the ICJ had also some
influence on the codification of international law. Examples of this influence are found,
eg in the 1982 UN Convention on the Law of the Sea51 and the 1969 Vienna Convention
on the Law of Treaties.52
1. Interpretation of the Charter
32 As the principal judicial organ of the UN, the ICJ is not only entitled, but has the duty
to interpret the Charter. This is in particular the case when dealing with advisory
opinions requested by the GA or the SC.53The question may, however, also arise in
contentious cases.54 A particular situation was present in the Nicaragua Case, where the
Charter would have been brought into play if the ICJ had not been of the opinion that
the application of the Charter was excluded by a reservation to the declaration of the
United States according to the optional clause of Art. 36 (2) of the Statute;55 this
reservation made the Charter inapplicable because of its character as a multilateral
treaty; nevertheless, the Court considered the applicable general international law to be
identical to the relevant provisions of the Charter.56
33 With regard to the provision in Art. 36 (1) of the Statute, which explicitly makes
mention of ‗all matters specially provided for in the Charter of the United Nations‘ it has
to be stated that it remained an ‗idle‘ title of jurisdiction,57 because no kind of compulsory
jurisdiction was conferred on the Court in the Charter. The only feasible realization of
this provision would thus be a SC resolution under Chapter VII of the Charter enjoining
States in cases affecting international peace and security to bring such dispute before
the Court.
34 When interpreting the Charter, the ICJ applies the general principles on the
interpretation of international treaties taking account, however, of the Charter as the
constitutional instrument of the worldwide international organization.58 The individual (p.
1914) provisions are to be interpreted according to their meaning in the whole system of
the Charter. The Statute is an integral part of the Charter; its provisions are therefore to
be interpreted not only as belonging to a separate legal instrument but also in light of
the Charter.
2. Support by Other Organs, in particular the GA
35 In order to fulfil its functions, the ICJ needs, respectively needed in particular in the first
decades, support from the UN, in particular the GA. The expectations at the San
Francisco Conference were described by the competent (First) Committee as follows:
[The First Committee] ventures to foresee a significant role for the new Court in the
international relations of the future. The judicial process will have a central place in the
plans of the United Nations for the settlement of international disputes by peaceful
means…It is confidently anticipated that the jurisdiction of this tribunal will be extended
as time goes on, and past experience warrants the expectation that its exercise of this
jurisdiction will command a general support.
The report continued with these emotive words:
In establishing the International Court of Justice, the United Nations hold before a war-
stricken world the beacons of Justice and Law and offer the possibility of substituting
orderly judicial processes for the vicissitudes of war and the reign of brutal force. 59
The Conference recommended that member States should recognize as soon as
possible the obligatory jurisdiction of the ICJ.60
36 In line with this recommendation, the Second GA (1947) passed a resolution entitled
‗Need for greater use by the United Nations and its Organs of the International Court of
Justice‘. It recommended that States ‗as a general rule‘ submit their legal disputes to the
ICJ; the UN organs and the organs of the specialized agencies should request the Court
to give advisory opinions on important legal questions.61 Later, however, the attitude of
the GA with regard to the ICJ was marked by a greater reluctance, which reflects the
discontent with the judgment in the second phase of the South West Africa Cases
(1966).62 Thus, one of the most important resolutions, the GA declaration ‗On Principles
of International Law concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations‘ did not even mention the ICJ, but
only repeated Art. 33 UN Charter.63
37 In the context of the 50th anniversary of the founding of the PCIJ (1922–72) and in
the light of the limited use made of the Court after 1970, the GA took up the item in its
resolution ‗Review of the role of the International Court of Justice‘.64 The member States
of the UN and of the Statute were invited to comment on this subject. After many
proposals for reform had been made, the GA concluded its work by a resolution
adopted (p. 1915) at its 29th Session (1974) in which it referred to the character of the
ICJ as the principal judicial organ of the UN.65 At the same time the ICJ had enacted a
partial revision of its Rules of Procedure,66which was welcomed by the GA as a means
of facilitating recourse to the Court. In particular, the GA stated ‗that recourse to judicial
settlement of legal disputes, particularly referral to the International Court of Justice,
should not be considered an unfriendly act between States‘. Also the power of UN
organs and specialized agencies to request advisory opinions was stressed again.
38 In 1982, the GA adopted the ‗Manila Declaration on the Peaceful Settlement of
International Disputes‘,67which partly repeated the 1974 Resolution, but moreover urged
States to use, as a general rule, the ICJ for the settlement of disputes. However, this
declaration also abstains from making clear and definite statements. A significant step
forward was marked by the proclamation of the ‗Decade of International Law‘ by the GA
in 1990,68 which led to a strengthening of the role of the ICJ with lasting effect.69 The
acceptance of the ICJ significantly increased as is demonstrated not only by the number
of cases brought before the Court,70 but also, and more importantly, by the significance
of the matters submitted and by the fact that States from the formerly so-called Third
World as well as Eastern European States make increasing use of it.
3. Additional Tasks of the ICJ
39 In addition to its judicial functions, the ICJ has some occasional tasks, such as the
appointment of arbitrators, umpires, members of conciliation committees, etc by the
President at the request of parties to an international agreement which so provides.
Treaty provisions of this kind may be found in numerous multilateral and in bilateral
treaties as well as in contracts concluded between a State and a corporation or between
corporations. They include matters relating to air transport, social security, reparations
or guarantees, loans, technical cooperation, and the protection of investments.
40 Furthermore, the President is sometimes requested by States or international
organizations to appoint persons to fill other offices. The President of the Court has so
far always complied with such requests.71
(p. 1916) V. The ICJ as the Principal, but not Exclusive Judicial Organ
1. Optional Submission to the ICJ
41 Although the ICJ is the principal judicial organ of the UN, UN members are not
obliged to submit their disputes to its jurisdiction. If a dispute is likely to endanger the
maintenance of international peace and security, Art. 33 of the Charter offers the parties
several means to seek a solution, of which judicial settlement is only one. The other
peaceful means available to the parties to a dispute, which are mentioned pari
passuwith judicial settlement, are ‗negotiation, inquiry, mediation, conciliation,
arbitration, resort to regional agencies or arrangements‘ and generally ‗other peaceful
means of their own choice‘. Art. 33 does not only relate to legal disputes and, indeed,
the Court has the power to decide legal and non-legal disputes ex aequo et bono, if the
parties agree thereto (Art. 38 (2) ICJ Statute). However, until now, such authorization
has never been conferred upon the ICJ, nor was it ever given to the PCIJ. 72
42 Neither the Charter nor the ICJ Statute provide for obligatory submission of legal
disputes to the ICJ.73Nevertheless, it can be concluded from the position of the Court as
the principal judicial organ of the UN which has been placed at the disposal of all
States, that in accomplishing its tasks, the Court makes an important contribution to the
proper and successful functioning of the UN Organization.
43 This idea is clearly reflected in Art. 36 (3) of the Charter according to which the SC,
in its recommendations relating to the pacific settlement of disputes (Chapter VI UN
Charter), should ‗take into consideration that legal disputes should as a general rule be
referred by the parties to the International Court of Justice in accordance with the
provisions of the Statute of the International Court of Justice‘. However, only once did
the SC make use of this power: in the legal dispute between the United Kingdom and
Albania regarding the Corfu Channel Incident of 1946, the SC recommended by UNSC
Res 22, (9 April 1947) inter alia, ‗that the United Kingdom and Albanian governments
should immediately refer the dispute to the International Court of Justice in accordance
with the provisions of the Statute of the Court‘.74 In its judgment on jurisdiction of 25 April
1948, in which it rejected the preliminary objection by Albania, the ICJ did not found its
jurisdiction on the recommendation and thus only implicitly commented on the effect of
the recommendation. Seven judges (out of sixteen, including the Albanian ad hoc judge)
were more explicit in pointing out in a joint Separate Opinion that, in their view, a
recommendation of the SC according to Art. 36 (3) did not constitute a case of
compulsory jurisdiction, having regard (1) to the normal meaning of the term
recommendation, (2) to the general structure of the Charter and of the Statute, and (3)
to the terms used in Art. 36 (3) and to its object and purpose which is to remind the SC
that legal disputes should normally be decided by judicial methods.75 Proposals in two
other cases to make a (p. 1917) recommendation according to Art. 36 (3) either did not
gain a sufficient majority or were vetoed by permanent members of the SC. 76
2. Multiplicity of International Courts and Tribunals
44 Finally, the fact that the ICJ is the ‗principal judicial organ‘ of the UN does not mean
that the ICJ should be considered or was conceived as the exclusive international
tribunal. There are numerous other international courts and tribunals or quasi-judicial
bodies, some of them sponsored by the UN (as the Law of the Sea Tribunal), others
established in the framework of other organizations, eg the Dispute Settlement Body of
the WTO. The increasing number or ‗proliferation‘ of international courts and tribunals
gives meanwhile rise to concern with regard to the fragmentation of international law,
forum shopping, and overlapping jurisdiction which urgently need an answer. However,
the specificity of the ICJ as compared to all other judicial bodies lies in the fact that it
remains the only court open to all States and competent to hear all kinds of disputes. 77
3. Other Judicial Bodies within the UN System
45 The status of the ICJ as the ‗principal‘ judicial organ of the UN allows not only the
dispute settlement by other judicial bodies, but also offers the possibility of establishing
other tribunals or judicial organs within the UN System. Such tribunals or organs can,
however, only be endowed with a specialized scope of activities and can only be
established as subsidiary organs by a principal UN organ authorized accordingly.
Making use of this power under Art. 22, the GA has established UNAT to decide on
legal disputes between the SG and the staff members of the Secretariat. 78 This Tribunal
and the GA were linked with the ICJ by a ‗Committee on Applications for Review of
Administrative Tribunal Judgments‘, which was authorized to request the ICJ, in certain
precisely defined conditions, to give an advisory opinion on questions of law and
jurisdiction concerning a judgment of the Tribunal.79 By UNGA Res 50/5480 the GA
decided to delete Art. 11 of the Statute of UNAT which instituted the Committee noting
that it ‗has not proved to be a constructive or useful element in the adjudication of staff
disputes with the Organization‘. The review competence of the ICJ was thus terminated
with regard to all judgments of UNAT rendered after 1 January 1996. The fact that since
then no review was available against UNAT judgments was criticized and finally led to
the adoption of a new two-tier system composed of two standing bodies, the United
Nations Dispute Tribunal (UNDT) and the United Nations Appeals Tribunal (UNApT)
which became operational on 1 July 2009.81
(p. 1918) 46 Since the staff members of the Registry of the Court do not belong to the
category of staff members of the Secretariat,82 they could not apply to the UN
Administrative Tribunal. To fill this lacuna their legal protection was, during a first period,
entrusted to the ‗Judge of Staff Appeals‘, who was elected annually by the ICJ from
among its members. If the dispute could not be resolved, the matter could, at the
request either of the staff member or of the Registrar, be referred to the ICJ for
settlement according to the procedure which the Court might prescribe. This system
was amended in 1997 by the creation of a ‗Conciliation Committee‘ consisting of three
members of the Registry. If this Committee cannot reach a conciliation, application may
be made to the United Nations Administrative Tribunal.83
47 Mention has also to be made of ILOAT, which, taken together with its predecessor
in the period between the two World Wars, has functioned since 1927. ILOAT is
competent to hear cases arising within a great number of other international
organizations, inter alia the following international organizations belonging to the UN
family: FAO, UNESCO, WHO, ITU, WMO, WIPO, and IAEA.84 The ILOAT is linked to
the ICJ by the power of its Governing Body to seize the Court in order to review
decisions of the Tribunal concerning its competence or fundamental faults of procedure.
As formerly with UNAT, the ICJ acts by delivering an advisory opinion. After years of
non-use of the review mechanism, the procedure was re-animated in 2010 when a case
was brought to the ICJ for review of a judgment concerning the International Fund for
Agricultural Development.85 The World Bank has an Administrative Tribunal of its own.86
48 Although different with respect to their functions, mention has to be made in this
context of the International Criminal Tribunal for the Former Yugoslavia and the one for
Rwanda, which were established by SC resolutions taken under Chapter VII of the
Charter.87 These Tribunals have been instituted in the context of the SC‘s efforts to
restore peace in the respective regions. They have jurisdiction over individuals accused
of violations of international humanitarian law in the context of the respective conflicts
and will be terminated after having finished this task.88 The ‗completion strategy‘ for both
Tribunals was initiated by UNSC Res 1503 (18 August 2003) and 1534 (26 March 2004)
without, however, fixing a mandatory final date. Due to the downsizing of staff the
termination of the work will need time. Estimates for the ICTY suggest that the (p.
1919) pending cases will not be terminated before 2014. By UNSC Res 1966 (22
December 2010) the SC established a new body, the International Residual Mechanism
for Criminal Tribunals (IRMCT), to finish the remaining tasks of the ICTY and ICTR. The
IRMCT will have two branches, one for each Tribunal, and will begin functioning on 1
July 2013 for the ICTY and on 1 July 2012 for the ICTR. The Mechanism will continue
the jurisdiction, rights and obligations, and essential functions of the Tribunals. A Statute
of the Mechanism was also adopted by the SC and is annexed to the Resolution.
49 Reference should also be made of the United Nations Compensation Commission
(UNCC) created by the SC and charged with the compensation of the damages caused
to foreign States, individuals, or foreign companies by Iraq‘s invasion of Kuwait in 1990.
Although this Commission is not a ‗court‘, its functions are of a quasi-judicial character.
The Commission concluded its claims proceedings exercise in 2005 and payments to
individuals in 2007.89
C. The ICJ as ‘Judicial Organ’
50 The fact that the ICJ is not only an organ of the UN, but at the same time a judicial
organ distinguishes it from the other organs of the UN. This particular status explains
the limitations concerning the Court‘s cooperation with the political organs and the
independence of the Court from the other organs.
I. The Judicial Functions of the ICJ
51 In its judgments and opinions, the ICJ constantly refers to its judicial function and
judicial character, which are delimited positively and negatively by its status as the
judicial organ of the UN.90 This function is, in particular, defined by the provisions of the
Statute on the competences of the ICJ, the judges, the judicial procedure in contentious
cases and advisory proceedings, and the effect of the decisions. Statements on the
ICJ‘s judicial function are found more frequently in advisory opinions where the question
as to whether it is compatible with this function to comply with a request is more likely to
arise than in contentious cases with regard to giving a judgment on the dispute as
submitted in the application.91
52 The most succinct formulation of the ‗inherent limitations‘ of the judicial function in a
contentious case can be found in the judgment on the dispute between the State of
Cameroon and the United Kingdom, where the Court stated:
The function of the Court is to state the law, but it may pronounce judgment only in
connection with concrete cases where there exists at the time of the adjudication an
actual controversy (p. 1920) involving a conflict of legal interests between the parties.
The Court‘s judgment must have some practical consequence in the sense that it can
affect existing legal rights or obligations of the parties, thus removing uncertainty from
their legal relations.92
53 Consequently, abstract questions which do not relate to a concrete dispute cannot
be decided in contentious proceedings, because judgments must have practical
consequences for a legal dispute between litigants. An application which is aimed only
at obtaining a weapon in political controversies is inadmissible. The ICJ therefore
examines if a ‗dispute‘ has been submitted to it or only a ‗legal question‘ and, in
addition, whether the dispute continues to exist in the course of the proceedings. It is
not bound by the view taken by the parties on this question. A controversy on a legal
question or a conflict on legal views or legal interests is a matter of objective
consideration; it cannot depend on mere assertions by a party.93 If the controversy loses
the character of a dispute in the course of the proceedings, the ICJ states in the
judgment that the claim no longer has any object and that the Court is therefore not
called upon to give a decision thereon.94
54 The ICJ itself is the guardian of its judicial integrity. It must maintain it, if necessary
against the wishes of the parties. This principle is explicitly reflected in Art. 17 (2) of the
Statute and the practice of the Court relating to it.95
II. The Criteria of Judicial Bodies
55 Courts and judicial tribunals in domestic law are, as a rule, characterized by the
following criteria of judicial bodies: constitution as a permanent body, independence of
the judges, decision on the basis of the applicable law, a generally determined
procedure, and the binding force of the decisions.96 The ICJ fulfils these requirements: it
is constituted by the Statute as a permanent institution (Chapter I);97 according to Art. 30
ICJ Statute, it is authorized and obliged to frame its rules of procedure.
56 The judges are given legal guarantees of their personal independence (Arts 2, 17,
18, 32 ICJ Statute). If in a concrete case none of the members of the ICJ is a national of
the parties or of one of the parties, the composition of the bench can be influenced,
although only to a rather limited extent, by the appointment of additional ad hoc judges
(Art. 31 ICJ Statute). This provision dates back to the times of arbitral jurisdiction.
Regrettable or not, it is indispensable in view of the present state of international
relations.98 The influence of the parties on the composition is stronger, however, when
a (p. 1921) chamber for dealing with a particular case is formed. The number of judges
constituting such a chamber is determined by the ICJ with the approval of the parties
(Art. 26 (2) ICJ Statute).99 It must be emphasized, on the other hand, that the provisions
concerning independence and impartiality are equally applicable to all judges, whether
they take part in decisions of the Plenary Court or of a chamber in their capacity as
members of the ICJ (Art. 1 Rules of Court), or whether they have been appointed by a
party as an ad hoc judge to sit in a contentious case (or, as the case may be, in
advisory proceedings), or whether they have been proposed to the President by parties
to sit as members of a chamber (Art. 31 (6) ICJ Statute).100
57 Every judge shall, before taking up his duties, make a solemn declaration in open
court that he will exercise his powers impartially and conscientiously (Arts 20, 31 (6) ICJ
Statute; Arts 4, 8 Rules of Court). The exercise of the judicial functions depends on this
declaration; it must therefore be made as soon as practicable after the term of office
begins or, as regards ad hoc judges, when the ICJ meets in its composition for the case
for the first time.101
58 The electoral bodies—GA and SC—as well as the national groups of the Permanent
Court of Arbitration which are entitled to nominate qualified persons, must be guided by
the personal qualities of the candidates as laid down in the ICJ Statute. Art. 2 provides
that the ICJ shall be composed of a body of independent judges, elected regardless of
their nationality from among persons of high moral character, who possess the
qualifications required in their respective countries for appointment to the highest
judicial offices, or are juris-consults of recognized competence in international law. The
logic of the provisions designed to safeguard the independence of judges and to avoid
conflicts of interests and loyalty indicates that a candidate who occupies a political or
administrative office in a national administration should not transfer directly to become a
member of the ICJ. In practice, the electoral bodies do not always take account of this
point of view. What matters is not so much the objective danger of prejudice, but rather
the impression made upon the public. The same is true of the rules providing for the
exclusion of a judge from participating in proceedings concerning a case in which he
has formerly been involved in any capacity, or for his non-participation in the decision
on a particular case if he himself or the President considers that he should abstain from
taking part or, in case of disagreement, if the ICJ so decides (Arts 16, 17, 24 ICJ
Statute; Art. 34 Rules of Court).102 The Practice Directions of the Court contain more
details aiming at obviating even the mere appearance of interest collisions of judges,
judges ad hoc, counsel, or agents involved in a case.
(p. 1922) 59 The legal rules which the ICJ has to apply are defined in Art. 38 (1) of its
Statute, which is regarded as the relevant provision governing the sources of
international law.103 The most important sources are treaties or conventions (Art. 38 (1)
(a))—the term is irrelevant—and customary international law (Art. 38 (1) (b)). The third
source of international law, general principles recognized in national law, Art. 38 (1) (c),
plays only a minor role; it was inserted in order to avoid a non liquet and loses
importance with the increasing comprehensiveness of international law.
60 The ICJ acts according to the rules of judicial procedure, the most essential of which
are contained in Chapter III of the Statute. On the basis of Art. 30, the Court has drawn
up detailed Rules of Procedure which meet the basic requirements of a modern national
code of procedure (pts III and IV, Rules of Court).
61 The ICJ‘s judgments are binding between the parties and in respect of the particular
case. They are final and without appeal (Art. 94 UN Charter; Arts 59 and 60 ICJ
Statute).104 These provisions apply to contentious cases without restriction. They also
apply to judgments whose operative provision only makes statements regarding the
principles and rules of international law applicable between the parties, without deciding
on the consequences for the parties in their mutual relations. 105 A judgment can only be
reversed, if new facts of a decisive nature which existed, however, already when the
judgment was delivered, are discovered after the judgment has been delivered. 106
62 The ICJ is a Court of first and last instance. This statement also applies to
judgments concerning ‗appeals‘ brought before the Court against decisions of an
international organ by virtue of international treaties or statutes of international
organizations.107 It used to apply to advisory opinions relating to applications for review
of UNAT judgments. The ICJ did not act as a court of appeal in the proper sense. The
effect of this type of advisory opinion, however, came close to a decision on
confirmation or annulment.108
D. The Organization of the Court
I. Composition
63 The ICJ consists of fifteen members, no two of whom may be nationals of the same
State; this number can be increased where ad hoc judges complete the bench in a
particular (p. 1923) case. Five members of the ICJ are elected every three years for a
term of nine years; re-election is admissible. Candidates are elected from a list of
persons nominated by the national groups in the Permanent Court of Arbitration. 109 The
electoral bodies are the GA and the SC, who take their votes in separate meetings.
Those candidates who obtain an absolute majority in both organs are considered as
elected (Arts 4–15 ICJ Statute). If, after the third ballot, seats remain vacant, a special
procedure involving a ‗joint conference‘ consisting of six members, three appointed by
the GA and three by the SC, may be applied at the request of either the GA or the SC. If
this procedure also proves unsuccessful, the judges already elected select the judges to
fill the vacant seats from among the candidates who obtained votes in the previous
ballots (Art. 12 ICJ Statute). As, however, the institution of the ‗joint conference‘ after
three unsuccessful voting rounds is not mandatory, voting rounds in both, the SC and
the GA, can multiply. The most recent elections for filling vacancies in the Court
occurring due to the expiration of the term of office of five judges in February 2012
constitutes an unpleasant example of deadlock: while four of the vacancies were filled
on 10 November 2011 by the re-election of Hisashi Owada (Japan), Xue Hanqin
(China), Peter Tomka (Slovakia), and the election of Giorgio Gaja (Italy) no candidate
for the fifth vacancy could earn the absolute majority in both the GA and the SC. The
candidates, Abdul Koroma (Sierra Leone) standing for re-election for a third term, and
Julia Sebutinde (Uganda) each reached the absolute majority in only one of the
assemblies (Koroma in the SC, Sebutinde in the GA) throughout eleven rounds of
voting (cf UNGA/11178 of 22 November 2011). Finally, on 13 December 2011 Julia
Sebutinde reached the necessary majority in both the SC and the GA and was thus
elected bringing the number of female judges to three out of fifteen. In this context it has
shortly to be mentioned that the steady increase in the number of the members of the
UN and thus the majority required in the GA was of considerable relevance for the
whole system of election management both for the candidates and for the electors.
While in 1946 the absolute majority in the GA was twenty-six, it is now ninety-seven. To
reach this quorum requires thorough diplomatic preparation and may be rendered even
more difficult by the fact that the expression ‗absolute majority‘ is understood in the
consistent practice of the UN as meaning the absolute majority of all of the total
membership of the GA, independent of whether a State votes or not or, for one reason
or another was disqualified from voting.110
64 The ICJ‘s members are to be elected regardless of their nationality from among
persons of high moral character, who possess the qualifications required in their
respective countries for appointment to the highest judicial offices, or are juris-consults
of recognized competence in international law.111 The requirements of the first
alternative depend on the internal rules on qualification in the law. The second
alternative refers to recognized competence of a candidate in international law and
requires no domestic qualification. In the preparatory work for the revision of the Statute
of the PCIJ in 1929, a proposal was made with the intention of ensuring that all
candidates possessed (p. 1924) recognized practical experience in international law. No
amendment was inserted into the wording of Art. 2, which today remains the same as it
was then. The Assembly of the League of Nations did, however, pass a ‗voeu‘ in which
this point was emphasized. The great majority of judges cannot be attributed only to one
of the two categories. The reasons for the nomination and election of candidates in
many cases relate to various kinds of professional legal work. One may regret that a
direct move from the political or diplomatic service of a national government into the
office of a member of the ICJ has not been excluded. In classifying the members of the
ICJ according to professional background, one cannot distinguish clearly defined groups
but can only refer to activities which characterize certain judges more than others. From
this point of view, one may distinguish judges who have previously been university
professors, members of supreme courts, legal advisors of national foreign offices, and
holders of other high governmental office or diplomatic and civil office in international
organization.112
65 Despite the provision in Art. 2 of the Statute that candidates shall be elected
regardless of nationality, a national of each of the five permanent SC members has
always been elected. No legal rule to this effect exists; the election procedure is the
same for all judges. The privilege has emerged through continually repeated practice
and reflects the character of the Court as an organ of the UN.113 The demand of the
Great Powers to be represented in the World Court by judges of their nationality goes
back to the second Hague Peace Conference in 1907. Only between 1967 and 1985 no
member of the Court was of Chinese nationality due to the political struggle about the
recognition of the People‘s Republic of China and China‘s representation in the UN. The
last judge coming from the Republic of China (National Government), one of the five
permanent members in 1945, left the Court in 1967. Since 1985 a national of the
People‘s Republic of China, a permanent member of the SC, has belonged to the ICJ.114
66 Article 2 has to be read in context with Art. 9 of the Statute which provides that the
bench as a whole should represent the main forms of civilization and the principal legal
systems of the world. This idea goes back to the second Hague Peace Conference of
1907; it was included in the Statute of the PCIJ with the same wording that it has today.
For lack of a definition of the terms ‗principal legal systems‘ and ‗main forms of
civilization‘, the distribution of seats according to these criteria is not practicable. It has
been substituted by a practice according to which the political and regional groups in the
GA support candidates of their respective countries for filling the ten seats remaining
besides the seats ‗reserved‘ for the five permanent members of the SC. Fluctuations
and changes in the number of seats belonging to one region or the other are possible if
no agreement has been reached within the groups or if new situations occur in the
course of consecutive ballots in the GA and the SC. At present, the repartition of seats
provides for three judges from Africa, two from Latin America and the Caribbean, three
from (p. 1925) Asia, five from Western Europe and other States, and two from Eastern
Europe115 which corresponds to the attribution of seats in the Security Council.
67 The Statute guarantees independence and impartiality of the members of the Court.
A member of the ICJ cannot be dismissed unless, in the unanimous opinion of the other
members, he has ceased to fulfil the required conditions (Art. 18 ICJ Statute). 116 The
functions of a member of the ICJ are incompatible with any political or administrative
function and with any other occupation of a professional nature (Arts 16 and 17 (1) ICJ
Statute) except occasional functions in the peaceful resolution of disputes, in particular
arbitration, and academic activities. Being a member of the Court is a full-time
occupation. No judge may participate in any case in which he has previously taken part
in any capacity (Art. 17 (2) ICJ Statute and see also Art. 24; Art. 34 Rules of
Court).117 The latter restriction also applies to ad hoc judges. The ICJ‘s moral authority
requires that this rule be strictly observed.
68 Until (June) 2012 103 persons were elected as members of the Court; only nine
resigned before the end of their term of office; thirty-one were re-elected; only two
judges were elected for a third term and one judge served for twenty-seven years as a
member of the Court. Until 2012 only four of the judges were women; in 1995 Rosalyn
Higgins of the United Kingdom was elected as the first female member of the Court to
continue the term of Sir Robert Jennings. She was re-elected for a full term in 2000; in
2006 she was elected as President. In 2010 Joan Donoghue was elected to fill the
unexpired term of Judge Buergenthal of the United States who had resigned before the
end of his term of office in 2015 and in the same year Xue Hanqin from China was
elected to replace Judge Shi Jinyong until the end of his term of office in 2012; she was
re-elected for a full term of office beginning 6 February 2012.118 With the election of Julia
Sabutinde on 13 December 2011 for a term of office beginning 6 February 2012 there
are presently three female judges sitting on the bench of the Court.
69 Judges ad hoc take part in the decision on the case for which they are appointed on
terms of complete equality with the members of the ICJ.119 The personal requirements
for their appointment are the same (Art. 31 (6) ICJ Statute). Their professional activities
are not restricted; they cannot, however, participate in a case in which they have
previously taken part in any capacity. They make the same solemn declaration in open
court as the members, namely to exercise their powers impartially and conscientiously
(Art. 31 (6) ICJ Statute; Art. 8 Rules of Court). In view of the fact that ad hoc judges, and
members of the ICJ who are nationals of parties, might be biased or could appear to be
biased in favour of their own countries, regret has been expressed that the Statute
retains their participation on the bench. National judges are a relic of the composition of
arbitral tribunals; their participation in principle is inconsistent with a completely (p.
1926) developed judicial system which exercises public authority over the parties. The
institution of ad hoc judges has been challenged recently in the cases Legality of Use of
Force (Yugoslavia v Belgium [and nine other NATO States]) on the aspect of equality
and of the meaning of the term, ‗in the same interest‘.120 The present state of
development of international relations does not, however, permit dispensing with ad hoc
judges and national judges as members of the bench. On the contrary, the formation of
chambers of the ICJ shows that the tendency exists to strengthen the national
element.121 Apart from this consideration, it must not be forgotten that, depending on the
particular features of a case, information provided to the ICJ by national judges is useful
in cases in which the domestic law of the parties is relevant to facts or law; furthermore
it may help the judgment to be accepted by the parties. However, in cases in which the
domestic law of the parties is relevant the ICJ can meet this demand by appointing
assessors (Art. 30 (2) ICJ Statute; Arts 9 and 21 (2) Rules of Court).122
70 Assessors may be appointed by the ICJ to sit with the Court or with any of its
chambers in contentious cases or advisory proceedings, however, without the right to
vote. They may be appointed by the ICJ either proprio motu or upon a request made not
later than the closure of the written proceedings (Art. 30 (2) ICJ Statute; Arts 9 and 21
Rules of Court). Assessors are elected by secret ballot by the majority of judges
composing the ICJ for the case or the opinion concerned. The Statute of the PCIJ
provided for assessors; the present Statute has maintained them in a modified form.
Assessors exercise judicial functions. They take part in the deliberations of the Plenary
Court or the chambers, respectively. Before taking up their duties, they make a solemn
declaration in open court which is, mutatis mutandis, similar to that made by judges.
Personal requirements of a general kind, such as those described for the election of
judges, are not laid down. One must suppose that they are selected because of their
aptitude to make a contribution to the case or opinion for which they are appointed.
Neither the former nor the present Court has ever made use of this provision which
seems to have been included into the Statute due to a ‗historical accident‘. The question
was, however, raised in the Western Sahara Advisory Opinion where expert information
in Islamic law or the history of northern Africa was needed.123 This case reflects the
difficulty to distinguish between the role of an assessor and that of an expert. Experts, in
contrast to assessors, have repeatedly been appointed in particular in cases of land or
maritime boundary delimitation.124
71 The Registrar is a judicial officer, who is indispensable for the functioning of the ICJ,
and at the same time, the head of staff of the Registry. He is responsible for all
administrative work, including financial matters. He is elected by the ICJ for a term of
seven years and may be re-elected (Art. 21 (2) ICJ Statute; Art. 22 (1) Rules of Court).
The same provisions are applicable to the election of a Deputy-Registrar. The Registrar
is responsible to the ICJ for the exercise of all his functions. He is present at
deliberations (p. 1927) and in public sittings, and is responsible for drawing up the
minutes. His principal judicial function is to ensure communication between the ICJ, the
parties, and other addressees according to the provisions of the Statute and the Rules
of Procedure. A detailed list of his judicial and administrative functions is set forth in the
Rules (Part II, particularly Art. 26). Before assuming his duties, the Registrar makes a
solemn declaration at a meeting of the ICJ.125
72 The ICJ elects its President and Vice-President for three years; they may be re-
elected (Art. 21 (1) ICJ Statute; Arts 10 to 14 Rules of Court).126 The President is to
preside at all meetings of the ICJ; he directs the work and supervises the administration
(Art. 12 Rules of Court). In the event of a vacancy in the presidency or of the inability of
the President to exercise his functions, they are exercised by the Vice-President or,
where necessary, by the senior judge (Arts 13 and 3 (6) Rules of Court). 127 The
President is to reside at the seat of the ICJ (Art. 22 (2) ICJ Statute).
73 The seat of the Court has been established at The Hague, which was previously the
seat of the PCIJ, and still is that of the Permanent Court of Arbitration (Art. 22 (1) ICJ
Statute) and which has become the seat also of the two ad hoc criminal tribunals, the
International Criminal Tribunal for Yugoslavia and the International Criminal Tribunal for
Rwanda and also for the International Criminal Court. The ICJ is located in the Peace
Palace which was constructed for the PCA in 1913. The ICJ‘s 1969 proposal, to add to
the provision in Art. 22 (1) ICJ Statute ‗The seat of the Court shall be established at The
Hague‘ the words ‗or at any other place which the GA at any time determines at the
recommendation of the Court‘ has not been pursued since satisfactory working
conditions were created at The Hague.128
74 The Statute permits the ICJ to exercise its functions elsewhere when it considers it
desirable (Art. 22 (2), cl 2 ICJ Statute). This authorization has been implemented by the
provision in the Rules of Court (Art. 55) according to which the ICJ may decide, after the
closure of the written proceedings, to hold all or part of the further proceedings in a case
at a place other than its official seat. Up to now, no decision to this effect has been
made. The expense of transferring the judges, the Registrar, and the indispensable
minimum of administrative services for a certain period of time to another place may be
an obstacle. From this point of view, to sit at a place nearer to the parties or, as the
case may be, to a disputed area, may be easier for a chamber than for the whole Court.
The possibility of exercising some judicial functions, particularly with regard to the
obtaining of evidence at a place or locality to which a case relates (Art. 44 (2) ICJ
Statute; Art. 66 Rules of Court),129 may, however, be an appropriate means of bringing
about more procedural flexibility. That is what the ICJ did for the first time in
the Gabčíkovo-Nagymaros Case. Upon an invitation of the Agent of Slovakia to visit the
site of the hydro-electric dam project on the river Danube, the ICJ decided, by an Order
of 5 February 1997, to ‗exercise its functions with regard to the obtaining of evidence by
visiting a place or locality to which the case relates (cf Art. 66 of the Rules of Court)‘.
The visit took place from 1–4 April 1997.130
(p. 1928) 75 The ICJ is permanently in session, except during the judicial vacations.
Members of the Court are bound to hold themselves permanently at the disposal of the
ICJ (Art. 23 ICJ Statute). If they are not staying at The Hague, they must be within easy
reach. However, with regard to the increased workload in the last years, the Court itself
stated that ‗the presence of the judges at the seat of the Court is accordingly required
throughout the year‘. There is thus an obligation of residence at The Hague, although
not formally required by the Statute.131
II. Chambers
76 The ICJ‘s functions are exercised by the full Court, except when otherwise expressly
provided. A quorum of nine judges is sufficient to constitute the Court (Art. 25 ICJ
Statute). Decisions on all questions are made by a majority of the judges present; in the
event of an equal split, the President (or the judge who is acting in his place) has a
casting vote (Art. 55 ICJ Statute).132 In the final vote in any phase of the proceedings
abstention is not permitted (Art. 8 (5) of the Resolution concerning the Internal Judicial
Practice of the Court).
77 The Statute provides for the formation of three types of chambers, consisting of
some members of the ICJ and, as the case may be, of national and ad hoc judges (Arts
26–29 and 31 (4) ICJ Statute). Their judgments are considered to be rendered by the
ICJ. Chambers may, with the consent of the parties, sit and exercise their function
elsewhere than at The Hague. The three categories of chambers are: the chamber of
summary procedure, chambers for dealing with particular categories of cases, and
chambers for dealing with a particular case.
78 The chamber of summary procedure133 is composed of five judges, and is
constituted annually. In addition, two substitute judges are elected for the purpose of
replacing judges who find it impossible to sit. The President and the Vice-President
belong to this chamber ex officio. The other members are elected by secret ballot. The
chamber for summary procedure was convened once during the time of the PCIJ, but
no further example has occurred since the founding of the present Court. 134
79 The ICJ may, from time to time, form one or more chambers for particular categories
of cases: for example, labour cases and cases relating to transit and
communication.135 Such chambers may be composed of three or more judges, as
determined by the Court. The examples given, and the history of Art. 26 (1) of the
Statute, indicate that the authors of the Statute primarily envisaged matters of a
technical character. The members of these chambers are elected from among the
members of the ICJ who have special knowledge, expertise, or previous experience
regarding the category of case under consideration (Art. 16 Rules of Court). In July
1993, the ICJ made use of Art. 26 (1) of the (p. 1929) Statute for the first time and
established a seven-member Chamber for Environmental Matters.136 Although the
chamber was never seized, the ICJ periodically reconstituted it until 2006. Since no
State ever requested that a case be dealt with by it, the Court finally decided in 2006 not
to hold election for a Bench for the said Chamber.137
80 Regional chambers are not mentioned either in the Statute or in the Rules of Court.
Nevertheless, the formation of chambers to deal with cases relating to a certain region
seems to be authorized by the Statute, since geographical criteria may constitute a
particular category of case within the meaning of Art. 26. Chambers of any kind will take
up cases on the condition that the parties so request.
81 The ICJ, at the request of the parties, may at any time form ad hoc chambers for
dealing with a particular case.138 The number of judges constituting such a chamber is
determined by the ICJ with the parties‘ approval (Art. 26 (2) and (3) ICJ Statute). To
become judges of the bench of the chamber, members of the ICJ are elected by the
Court, which proceeds by secret ballot. Since the partial revision of 1972, the Rules of
Court provide that the President shall ascertain the views of the parties regarding the
composition of the chamber, and shall report to the Court accordingly (Art. 17 (2)). The
parties are thereby granted considerable influence on the composition of the bench. As
a rule, the ICJ will be confronted with the alternative of either complying with the
suggestions of the parties or running the risk that the parties will withdraw the case.
Objections have been raised against consultation on the ground that the Statute only
gives the parties the right to approve the number of judges. Those favouring the new
rule, however, maintain that the object and scope of the consultation of the President
with the parties have not been restricted by the Statute.139 The inconsistency between
the rule that the ICJ decides on the composition of the chamber, and the influence of
the parties exercised in several cases could be lessened if the parties were not to insist
on names agreed upon in advance but instead were to retain an open mind in the
consultations with the President. While no request for the formation of an ad hoc
chamber was made in the time of the PCIJ or in the first thirty-five years of the ICJ, they
have been formed in six cases since 1981, upon the joint application of the following
parties: Canada and the United States in the case concerning the delimitation of the
maritime boundary in the Gulf of Maine; Burkina Faso and Mali in the dispute on their
land frontiers; El Salvador and Honduras in their land, island, and maritime frontier
dispute; Italy and the United States in the case of Elettronica Sicula S.p.A;Benin and
Niger in a boundary dispute; and in 2002 an Application for Revision of the Judgment of
11 September 1992 in the Case concerning the Land, Island and Maritime Frontier
Dispute (El Salvador v Honduras) required the formation of a chamber because the
chamber having delivered the judgment in 1992 (p. 1930) could not be reactivated in its
original composition.140 All cases have been decided by a final judgment on the
merits.141 The application of the new provision in practice can be taken as an indication
that consultation on the names of the judges has become an established procedural
element which underlines the fact that the formation of ad hoc chambers approaches
the formation of arbitral tribunals. However, after a first rush to ad hoc chambers in the
1980s, their use is in decline since then. As the judgments of chambers are ‗considered
as rendered by the Court‘,142 the danger could not be excluded that frequent use of
chambers might in the long run affect the continuity of the ICJ‘s application and
interpretation of international law; as the use of chambers remained, however, rather
limited, this danger did not materialize. Chamber proceedings have the advantage that
they can be conducted more speedily and that judges continue to sit in all phases of the
case, even if their term of office as member of the Court has expired. This fact may lead
to the situation that out of five members of a chamber only two, the minority, are active
judges of the ICJ; as an example reference has to be made to the intervention of
Nicaragua in the Land, Island and Maritime Frontier Disputebetween El Salvador and
Honduras, where two judges ad hoc had been appointed and where the term of office of
one of the remaining three members expired shortly after the formation of the
chamber.143 Each of the six chambers mentioned above was constituted as a bench of
five judges, but the number may be lower or higher.
82 Members of the ICJ who are nationals of the party or parties, and ad hoc judges
chosen by parties without a member of the Court of their nationality upon the bench,
take part in the proceedings of the chambers on the same conditions as in the Plenary
Court. Art. 31 (4) of the Statute provides that in such cases, the President requests one
or, if necessary, two of the members of the ICJ forming the chamber to give place to
members of the Court of the nationality of the parties concerned, and, failing such, or if
they are unable to be present, to judges specially chosen by the parties. This procedure
was followed in the Gulf of Maine Case since an ad hoc judge was chosen after the
chamber had been constituted. In the other cases the ad hoc judge or judges had
already been named; the ICJ therefore only elected members of the Court to sit in the
chamber for the remaining seats. The inconvenience of requesting one or two judges to
give their places to ad hoc judges could thus be avoided.144
(p. 1931) E. Jurisdiction in Contentious Cases
83 Chapter II of the Statute deals with the competence of the ICJ over parties to a legal
dispute and the subject-matter involved. Only States can be parties in cases before the
ICJ and appear before it (Art. 34 ICJ Statute).145 Access to the ICJ is open to all parties
to the Statute and to such other States as are authorized by special conditions laid
down by the SC (Art. 93 UN Charter; Art. 35 Statute).146 This provision limits the Court‘s
activities because today numerous fields of public international law concern individuals,
organizations, groups, and other legal entities which have to bring their disputes to other
judicial bodies.
I. Jurisdiction Ratione Personae
84 The competence of the Court to settle a dispute depends on the consent of the
States parties to the dispute. The fact that all member States to the UN Charter are
automatically also parties to the Statute does not as such constitute a basis for the
competence of the ICJ, although this was initially intended by the participants of the San
Francisco Conference in 1945. No State can thus become a party in proceedings before
the ICJ without its explicit consent (principle of consent).147 Accordingly the issue of
jurisdiction ratione personae constitutes the central and most often controversial
question in proceedings before the Court. The consent can be established in various
forms; it may be given ad hoc in view of an actual dispute and restricted to that dispute,
or in advance with regard to forthcoming disputes. Art. 36 of the Statute determines the
conditions for submitting to the Court‘s jurisdiction and their effect with regard to other
States.148
85 Obligatory submission to the ICJ regarding legal disputes which may arise in the
future may be established in advance by general arbitration treaties,149 by
compromissory clauses in bilateral and multilateral treaties and conventions, (Art. 36 (1)
ICJ Statute)150 and by declarations according to the optional clause which bind the
parties to a dispute in their mutual relations (Art. 36 (2) ICJ Statute).151 International
treaties and conventions often provide alternatively for an application to the ICJ and for
the use of another tribunal or body.
86 Jurisdiction may be established on an ad hoc basis by special agreement between
the parties in order to settle a concrete dispute152 or by the submission of the defendant
party which has not made any prior act of submission to the proceedings instituted by a
claimant party, so-called forum prorogatum (Art. 38 (5) Rules of the Court).153
(p. 1932) II. Jurisdiction Ratione Materiae
1. All Cases which the Parties Refer to the Court (Article 36 (1) ICJ Statute)
87 According to Art. 36 (1) the ‗jurisdiction of the Court comprises all cases which the
parties refer to it‘. That means that the parties to a dispute conclude a ‗special
agreement‘ in order to submit an existing dispute to the Court. The subject-matter of the
dispute is defined by the parties; however, it is confined to legal disputes, although only
Art. 36 (2) refers explicitly to ‗legal disputes‘. The question of whether legal as well as
non-legal disputes are included under this provision was considered in the preliminary
work on the corresponding provisions of the Statute of the PCIJ and answered in the
affirmative; but the authors had rather in mind the political aspect of the majority of
disputes,154 which is, however, a problem of justiciability, not of jurisdiction under Art. 36
(1). While the problem concerning the jurisdiction of the ICJ over disputes which cannot
be decided by the application of principles and rules of international law was vividly
discussed in the twenties and thirties of the last century, legal doctrine today no longer
focuses on the issue. It is not disputed today that the ICJ would be unable to adjudicate
a case if the applicant did not invoke any legal rules in support of its submissions. This
may be different in cases where the parties empower the Court to decide the case ex
aequo et bono (Art. 38 (2) ICJ Statute) which would give the Court a ‗discretionary
power‘ to find a decision outside the strict legal prescriptions where their application
would lead to an unjust decision.155 The question whether the ICJ is not only authorized
but also bound to exercise jurisdiction or whether it may declare the case inadmissible
for reasons of judicial propriety with reference to the limits of its judicial function, as is
the case for requests of advisory opinions, is merely hypothetical. There are, however,
good reasons to support the view that the ICJ may refuse to retain a case if cogent
reasons so dictate. Until 2012 sixteen cases had been brought to the Court on the basis
of a special agreement.
 2. UN Charter (Article 36 (1) ICJ Statute)
88 The jurisdiction of the ICJ comprises furthermore all matters specially provided for in
the UN Charter (Arts 36 (3), 92, 96, 102, and 103). This provision underlines that the
UN Charter, which is a treaty itself, is a treaty with special
characteristics.156 Nevertheless, there is no provision in the Charter conferring
compulsory jurisdiction to the Court. The only relevant provision in this context is Art. 36
(3) UN Charter which, however, only invites the SC to ‗take into consideration that legal
disputes should as a general rule be referred by the parties to the International Court of
Justice‘.157 The SC has only twice (p. 1933) acted according to Art. 36 (3) UN Charter;
however, the ICJ left open the question of whether a recommendation under Art. 36 (3)
established the jurisdiction of the Court or not.158 With regard to the principle of consent
such a recommendation cannot be considered as a basis of jurisdiction which would
only be the case if the SC would decide to refer a dispute to the Court in the context of
its mandatory Chapter VII powers.
3. Treaties (Article 36 (1) ICJ Statute)
89 The ICJ has jurisdiction in all matters specially provided for in treaties and
conventions in force (general arbitration treaties and compromissory clauses in treaties
and conventions of any kind). In this context, mention should be made that no treaty
and no international agreement may be invoked before the Court which has not been
registered with and published by the UN Secretariat (Art. 102 UN Charter), and that the
obligations under the Charter prevail over any other international agreement (Art.
103 UN Charter). There are approximately 300 treaties conferring jurisdiction to the
Court.159
4. Optional Clause
90 The obligatory jurisdiction of the ICJ may be recognized in advance by application of the
Optional Clause (Art. 36 (2)):
The States parties to the present Statute may at any time declare that they recognize as
compulsory ipso facto and without special agreement, in relation to any other State
accepting the same obligation, the jurisdiction of the Court in all legal disputes
concerning:
1. (a) the interpretation of a treaty;
2. (b) any question of international law;
3. (c) the existence of any fact which, if established, would constitute a breach of
an international obligation;
4. (d) the nature or extent of the reparation to be made for the breach of an
international obligation.
This definition specifies the scope of ‗legal disputes‘ in the meaning of the optional
clause. Matters are hardly conceivable which are not covered by this definition. It may,
however, be doubtful in concrete cases whether a ‗dispute‘ exists between the parties,
namely ‗a disagreement on a point of law or fact, a conflict of legal views or of interests
between two persons‘.160 Although parties often deny the existence of a dispute the
Court never dismissed a case for this reason.161
(p. 1934) 91 The optional clause is a surrogate in place of the obligatory jurisdiction
which has not been achieved. The clause is thus a technical means intended to
facilitate the development of a multilateral network of obligatory submission to the ICJ: if
all States would make a declaration under this clause without reservations obligatory
jurisdiction would be achieved. However, these expectations have not been fulfilled. In
(June) 2012 only sixty-seven out of 193 States parties to the Statute had made
declarations under the clause;162 most of these have been considerably limited by
reservations.163
92 The declarations may be made unconditionally or on condition of reciprocity on the
part of several or certain States, or for a certain time (Art. 36 (3)). Accordingly,
reservations may relate to certain countries or groups of countries (eg to the members
of the Commonwealth of Nations)164 or certain matters (eg to particular treaties, or to
maritime boundaries, or to maritime jurisdiction).165 They may be made for a limited time
or may provide for termination with or without a period of notice. In practice, other kinds
of reservations than those referred to in Art. 36 (3) ICJ Statute have been accepted;
they may extend to nearly all matters. This practice reflects the aim to further the
peaceful settlement of disputes by admitting declarations under Art. 36 (2) ICJ Statute
made on condition other than those provided for in Art. 36 (3) ICJ Statute because they
are preferable to not making a declaration of submission at all.166 Other instruments
recognizing the jurisdiction may, of course, also contain reservations.
93 There are, however, reservations which leave it to the State concerned, not the
Court, to decide whether they are of relevance in a particular case or not. Such
reservations are called ‗automatic reservations‘ or ‗escape clauses‘; the most famous
example being the Connally Reservation first used by the United States of America.
According to this reservation the ICJ was not competent to decide upon ‗disputes with
regard to matters which are essentially within the domestic jurisdiction of the United
States of America as determined by the United States of America‘.167 Whether such a
reservation is admissible or whether it is null and whether the nullity of the reservation
then extends to the whole declaration has not been clarified to date, although the Court
had to address it in several cases.168 It is, however, evident that such a reservation is in
contradiction to Art. 36 (6) ICJ Statute according to which it is the Court which decides
in the event of a dispute as to whether it has jurisdiction, the so-called compétence de la
compétence.
94 Reciprocity of rights and obligations of States recognizing the jurisdiction is so
closely connected with the basic structure of the international judicial process that it
is (p. 1935) implied in declarations of submission even if reciprocity is not explicitly
mentioned.169 Reciprocity refers to all kinds of reservations, whether they relate to other
States, to certain matters, or to time limits of validity.170 The principle of reciprocity is not
only applicable to declarations under the optional clause but also to other instruments
establishing a jurisdictional link between the parties (eg to reservations to arbitration
treaties or compromissory clauses). It follows from this principle that reservations to the
recognition of jurisdiction made by one party commensurately release the other party
from the same obligation because the jurisdiction of the Court only exists to the extent
accepted by both parties.171
 5. Forum Prorogatum
95 Finally, the competence of the ICJ may be accepted ad hoc by the party against
which a case has been instituted despite the manifest lack of a jurisdictional basis. If the
defendant party gives its consent to the jurisdiction of the Court (forum prorogatum) the
case can be entered on the general list opening the usual procedure. This kind of
submission to the Court‘s jurisdiction is not provided for in the Statute, but is laid down
in Art. 38 (5) of the Rules of Court. Only twice did a respondent accept the jurisdiction of
the Court for the purpose of the particular case.172
III. Compétence de la Compétence
96 In the event of a dispute regarding the ICJ‘s jurisdiction, the matter is to be settled
by a decision of the Court (Art. 36 (6) ICJ Statute). This provision is one of the
progressive elements of the PCIJ maintained by the ICJ.173 The defendant party no
longer has the legal possibility of denying jurisdiction because it takes the view that its
obligation to submit to the ICJ does not exist in the concrete case in dispute. Once the
ICJ has decided that it has jurisdiction, and no objection has been made against the
admissibility of the proceedings in the pending case, it goes on to the second phase of
the proceedings relating to the merits, and renders a final judgment. The decision on
jurisdiction, which generally is the subject-matter of a separate phase of the
proceedings, is made in the form of a judgment and thus has the force of res iudicata.
Consequently, it could (p. 1936) only be overturned by a revision of the judgment
according to Art. 61 of the Statute. The problematic repercussions that may arise in this
context became relevant in the judgment on the merits in the BosniaCase174 which was
delivered more than ten years after the judgment on jurisdiction and where the Court felt
bound by the res iudicata force of its judgment on jurisdiction although relevant
arguments had arisen against the Court‘s jurisdiction.175 The party which has lost its
case in the preliminary jurisdictional phase is bound by the judgment on the merits even
if that party has abstained from taking part in those proceedings.176 In some recent
decisions in which the ICJ had to dismiss the case for lack of jurisdiction, it reminded
the parties of the fact that, nevertheless, they are in all cases responsible for acts
attributable to them that violate the rights of other States and that they remain under the
obligation to settle any dispute peacefully even if the ICJ itself lacked competence.177
IV. Justiciable and Non-justiciable Disputes
97 Before World War I, disputes of a political character, particularly those of vital
importance for the State, were generally considered to be non-justiciable. Even if the
matter in dispute could have been settled by the application of international law it was
not brought before an arbitration tribunal if a party to the controversy took the view that
the case was inappropriate for judicial cognizance because of its political implications.
The ICJ Statute, following that of the PCIJ, does not leave the decision on justiciability
to the unilateral view of the States concerned. According to Art. 36 (6) of its Statute the
ICJ is given the power to interpret the legal scope of the instrument of submission and
to apply it accordingly. The jurisdiction of the Court in this context is consistent in
holding that an overall political dispute also contains legal elements which may be
decided upon by the ICJ.178 Nevertheless, several defendant States have considered the
political character of a legal dispute so vital or at least so important to them that they
have abstained from (p. 1937) taking part in the proceedings notwithstanding the
procedural judgment where the ICJ has assumed jurisdiction.179
98 The ICJ has taken the same view when the defendant party has argued, not that the
dispute was ‗political‘, as distinguished from ‗legal‘, but that judicial cognizance of the
use of illegal armed force or events that took place within the framework of a civil war
was incompatible with the judicial function.180 Also in such cases the ICJ found in favour
of its competence to decide on the legal aspects of the matter. Likewise, the ICJ has
pointed out that the exercise of the right of self-defence (Art. 51 UN Charter) may be
invoked in a legal dispute: ‗As to the inherent right of self-defence, the fact that it is
referred to in the Charter as a ―right‖ is indicative of a legal dimension.‘ 181 Cases
involving the use of force respectively the right of self-defence have increasingly been
brought before the Court which contributed considerably to defining the relevant rights
and obligations.182
99 A case is inadmissible not only if a judgment of the ICJ would affect a legal interest
of a State not taking part in the proceedings, but in particular if the Court could not
decide on the dispute brought before it without deciding first on rights or obligations of a
third State not party to the case (indispensable party).183
F. Advisory Opinions
100 The competence of the ICJ to give advisory opinions is granted by Art. 96 of the
Charter.184
(p. 1938) G. Applicable Law
I. Sources of Law
101 As an international institution, the ICJ has to decide in accordance with
international law; the sources of international are spelled out in Art. 38 (1) ICJ
Statute,185 which today may appear as a statement of the obvious, but in 1920—the
Statute of the PCIJ contained the same provision—was certainly helpful with regard to
the fact that an international court was an extraneous institution in the international legal
system of that time.186 Art. 38 (1) of the Statute of the ICJ as well as the preceding
Statute of the PCIJ specifies three categories of law to be applied by the Court:
1. (a) international conventions, whether general or particular, establishing rules
expressly recognized by the contesting States;
2. (b) international custom, as evidence of a general practice accepted as law;
3. (c) the general principles of law recognized by civilized nations.
102 These provisions indicate that the consensus of members of the international
community, established either explicitly by treaties, conventions, declarations, etc., or
implicitly by practice, is regarded as the legal foundation of all three categories. Apart
from this, the three groups differ from each other. The legal basis of the first category—
international conventions—is an agreement between the contracting parties on their
mutual rights and obligations. Agreements between States and international
organizations possessing legal personality, and agreements between such
organizations also belong to this category. The second category—international
custom—owes its legal form to its acceptance as law by the international community.
Today, numerous fields of customary law are or have been the subject-matter of
codification conventions,187 while treaties or relevant provisions of treaties, in particular
in the human rights field, are recognized as customary law due to their general
acceptance in the international community.188 The third category—general principles of
law (the terms ‗recognized by civilized nations‘ are regarded as obsolete today)—is the
most difficult and the most controversial.189 When it was first inserted into the Statute of
the PCIJ it was mainly intended to enable the Court to apply as international
law, mutatis mutandis, the corresponding rules of the internal legal systems of the
world. Where general principles of law are not derived from internal law but have
originated in international legal relations, the boundaries between them and customary
law cannot be sharply drawn. In applying general principles of law and customary law,
the law-defining and the law-developing task of the ICJ is particularly important because
international law still lacks precision in these fields.190
(p. 1939) 103 The three categories are not arranged in an order of legal hierarchy but
according to the order of examination and application by the judge. International
agreements are law agreed upon between the parties and are therefore to be applied
first, unless they violate ius cogens. In the Nicaragua Case, the ICJ did not apply the
UN Charter as treaty law between the parties, because it considered its jurisdiction in
this respect restricted by the ‗multilateral treaty clause‘ (Vandenberg Amendment),
which was one of the reservations made to the American declaration of submission to
the ICJ‘s jurisdiction under the optional clause. The ICJ, however, applied rules of
customary law identical to the principles of the Charter. The ICJ rightly considered that
the obligations resulting from the Charter and those resulting from customary law were
two separate sources of obligations, the first of which could not be applied to the
dispute, because multilateral treaties had been excluded from the ICJ‘s jurisdiction. It
did, however, apply principles of customary law which have, to a large extent, been
formulated in the principles of the Charter. The judgment has been criticized because
certain principles which were excluded from the jurisdiction as obligations resulting from
a multilateral treaty were held to be subject to the ICJ‘s jurisdiction as obligations
resulting from customary law.191
II. Subsidiary Means for the Determination of Rules of Law (Article 38 (1)
(d)), and Decisions Ex Aequo et Bono (Article 38 (2) ICJ Statute)
104 As subsidiary means for the determination of rules of law, the ICJ is to apply
judicial decisions and the teachings of the most highly qualified publicists of the various
nations (Art. 38 (1) (d) ICJ Statute). They may be considered to be indicative of the
interpretation and application of the three sources listed above. They are not sources of
law, but only documentary sources containing evidence of the existence of the rules to
be applied by the Court.192 The reasoning of the ICJ‘s decisions does not reveal, as a
rule, whether the ICJ has followed, or has been inspired by, the considerations of
recognized legal authorities; references and quotations are unusual. One may find them
in the individual opinions of the judges.
105 The enumeration of the three categories of law does not prejudice the power of the
ICJ to decide a case ex aequo et bono, if the parties agree to this. On this condition, the
ICJ is not bound to the strict application of international law but has a wider scope of
judicial discretion. The necessary authorization of the parties has not yet been given in
any case. One may, however, expect that the ICJ would take into account legal
principles and rules as far as feasible in the circumstances of the case.
106 In various cases the ICJ has made its findings on the basis of the principle of
‗equity‘. These judgments are legal decisions; the ICJ delimits them from decisions ex
aequo et bono: ‗the legal concept of equity is a general principle directly applicable as
law…Application of equitable principles is to be distinguished from a decision ex aequo
et bono.‘193 The applicability of the principle of equity became relevant in particular in
cases (p. 1940) concerning the delimitation of maritime areas provided for by Art. 83 of
UNCLOS which introduced the principle of equity without giving it a more precise
definition.
H. An Outline of Procedure
I. Basic Principles
107 The basic procedural provisions are included in the Statute (Chapter III). Details
are set forth in the Rules of Court (Pt III) pursuant to the authorization of Art. 30 of the
Statute and in the Practice Directions.194Most provisions of the Statute and the Rules of
Court are also applicable to advisory proceedings which are guided by the provisions on
contentious proceedings to the extent that the Court recognizes them to be applicable
(Chapter IV; ICJ Statute; Pt IV Rules of Court). In its internal procedure, the ICJ follows
the rules set forth in its ‗Resolution concerning the internal judicial practice of the Court‘
as adopted on 12 April 1976. These rules are applicable to contentious cases and
advisory opinions.
108 The most important procedural principle is the equality of the parties, namely that
each party has equal rights to submit and present its case against the other. Each party
is entitled to the same time for and the same number of written pleadings, the same
time for oral pleading, observance of the rules of debate in the Court etc. 195
109 The procedure consists of two parts, written and oral (Art. 43 Statute). The
proceedings may consist, as the case may be, of several phases: the phase of
preliminary objections (if the parties dispute whether the ICJ has jurisdiction and/or
whether the case is admissible); the phase on the merits; and proceedings in special
situations (relating to the indication of provisional measures, to the intervention of States
not parties to the case, and to the interpretation or revision of judgments).
110 The procedure is the same for the Plenary Court and for the chambers. Certain
special rules applicable to the chambers are added to speed up the proceedings. Oral
proceedings must take place unless the parties agree to dispense with them, and the
chamber consents (Arts 90–93 Rules of Court).
111 The official languages are French and English. The decisions contain a statement
as to the text which is authoritative. The cases are conducted either in French or in
English as the parties may agree. In the absence of an agreement, each party may use
the language it prefers in the pleadings. The ICJ shall, at the request of any party,
authorize a language other than French or English to be used by that party in the written
and oral proceedings; in this case the party concerned must provide a translation into
French or English (Art. 39 ICJ Statute; Arts 51, 70, 71, 95, and 107 Rules of Court).196
II. Procedure in Contentious Cases
112 Cases are brought before the Court by the notification by one party or jointly of a
special agreement or by the filing of a unilateral application (Art. 40 ICJ
Statute).197 The (p. 1941) application defines the subject of the dispute and the parties,
as well as, in the case of a unilateral application, the basis of jurisdiction.
113 The written proceedings consist of pleadings of the parties which include:
1. (a) a memorial containing a statement of the relevant facts, a statement of law,
and the submissions;
2. (b) a counter-memorial containing an admission or denial of the facts stated in
the memorial; any additional facts, if necessary; observations concerning the
statement of law in the memorial; a statement of law in answer thereto, and the
submissions; and,
3. (c) if necessary, a reply and rejoinder may be authorized or directed by the ICJ.
114 Written proceedings before a chamber shall consist of a single pleading by each
side. If necessary, the chamber may authorize or direct that further pleadings may be
filed. In past practice, more than one exchange of pleadings has usually taken place. In
cases which have begun by the notification of a special agreement, the number and
order of pleadings is governed by the provisions of the agreement, unless the ICJ
decides otherwise (Art. 43 ICJ Statute; Arts 44ff and 92 Rules of Court).198 By a revision
of its working methods in order to expedite the examination of contentious cases, the
ICJ explicitly encouraged written pleadings to be filed consecutively and not
simultaneously in cases submitted to the Court by a special agreement as provided in
principle by the Rules of Court.199 Thereby the number of exchanges of written pleadings
may be reduced. Furthermore, the ICJ invited the parties to seek clarity in the contents
of their memorials, strict selection of annexes, as well as succinctness in oral
pleadings.200
115 The oral proceedings are public, unless either the ICJ decides otherwise or the
parties demand that the public not be admitted. The hearing consists of the statements
of the parties, represented by agents, counsel, and advocates, and, as the case may
be, of the examination of witnesses and experts. There are, as a rule, two rounds of oral
debate before the ICJ. Questions may be posed by the President and the judges. This
is usually done at the end of the first round to enable parties to give answer either
during the second round or at the end of the hearing.
116 In the situation where one party either fails to appear before the ICJ, or to defend
its case, the other party may call upon the Court to decide in favour of its claim (Art.
53 ICJ Statute).201 The ICJ must satisfy itself that it has jurisdiction over the dispute and,
if it retains the case, must make a judgment on the merits. It must examine whether the
claim is well founded in fact and in law. It goes without saying that the Court‘s task of
ascertaining the facts and, consequently, applying the law is made more difficult where
only the applicant participates in the proceedings. Thus, the non-appearing State bears
the risk of a judgment delivered on the basis of incomplete evidence. The non-
appearing party may, however, at any moment change its attitude and participate in the
proceedings. In the reasoning of all judgments in cases of this kind, the ICJ has
expressed its (p. 1942) regret that one party failed to appear before it. Non-appearance
is not in itself a violation of the Statute.202 Non-acceptance of a judgment in a case
where the ICJ has assumed jurisdiction is another matter; if the non-appearing State
refuses to recognize the judgment it is violating its obligation stemming from Art. 36 (6)
of the Statute. Apart from the legal considerations, a State which fails to appear before
the ICJ thereby demonstrates its disregard for the fact that judicial settlement by the ICJ
is emphasized by the UN Charter as one of the means of peaceful settlement of
international disputes.
117 Both parties are obliged to recognize the decision and, as far as each of them is
concerned, to comply with it (Art. 94 UN Charter, Art. 59 ICJ Statute).203
III. Incidental Proceedings
118 After the institution of proceedings different types of incidental proceedings may be
requested which may serve the ascertaining of jurisdiction or admissibility, the
preservation of the rights at stake, the protection of legal interests of a third State, or the
counter-claims of the defendant. These proceedings do not require specific consent of
the parties to the case, but are covered by the acceptance of the Court‘s jurisdiction to
hear the case.
1. Preliminary Objections
119 Preliminary objections by a party may be raised against the jurisdiction of the ICJ
or against the admissibility of proceedings. Such objections could be filed ‗within the
time-limit fixed for the delivery of its Counter-Memorial‘ (Art. 79 (1) Rules of Court).
However, in order to expedite the proceedings, the ICJ amended this provision so that
from 1 February 2001 onwards, objections have to be filed ‗as soon as possible, and not
later than three months after the delivery of the Memorial‘.204 The ICJ lacks jurisdiction if
a party has not recognized its jurisdiction. An application may be inadmissible even if
the ICJ has jurisdiction on legal disputes between the parties, if legal impediments
against the proceedings exist which result from the circumstances in which the case has
been brought before the Court. Such impediments may be, for example, the absence of
an attempt to arrive at a friendly settlement or the non-use of another dispute settlement
procedure provided for in the compromissory clause of a treaty between the
parties;205 the non-existence of a legal dispute regarding the (p. 1943) subject-matter of
the application;206 or that the application only concerns a limited aspect not separable
from the wider scope of a complex legal problem.207 Lack of jurisdiction and
inadmissibility of an application are not always clearly distinguishable. In the dispute
between Nicaragua and the United States the ICJ dealt with several objections from the
defendant from the point of view of admissibility. A rather unique situation was
presented in the Maritime Delimitation and Territorial Questions between Qatar and
Bahrein Case,208 where the ICJ decided in a first judgment on jurisdiction and
admissibility that it had jurisdiction but that not the whole dispute, as required by the
jurisdictional basis (the so-called ‗Doha Minutes‘), had been brought before it. For the
first time in its history, the ICJ accorded the parties the opportunity to remedy this
omission and to bring the whole of the dispute before it within a certain time limit. As to
the question whether the Doha Minutes required the joint submission of the dispute or
allowed a unilateral application, the ICJ interpreted the relevant arabic term as to allow
a unilateral application so that it found in favour of admissibility and jurisdiction in the
second judgment of 15 February 1995. Preliminary objections are regularly raised in
cases instituted by unilateral application, but are mostly unsuccessful.209The most recent
examples of successful preliminary objections are the case of Spain against Canada
concerning the seizure of the Spanish fishing vessel Estai by Canada; 210 the case
concerning the Aerial Incident of 10 August 1999 (Pakistan v. India);211 Legality of Use of
Force Cases (Yugoslavia v ten NATO States);212 Certain Property (Liechtenstein v
Germany);213 Armed Activities on the Territory of the Congo (New Application:
2002) (Congo v Rwanda);214 and Application of the Convention on the Elimination of all
Forms of Racial Discrimination (Georgia v Russia). The finding of the Court in favour of
its jurisdiction is sometimes followed by an amicable settlement of the case by the
parties concerned.215 The decision on preliminary objections is taken in form of a
judgment. The res iudicata effect of a judgment has led to some problems in
the Genocide Case.216
(p. 1944) 2. Provisional Measures of Protection
120 The ICJ may, if it considers that circumstances so require, indicate any provisional
measures which ought to be taken to preserve the rights of either party. Notice of such
measures is to be given to the SC (Art. 41 ICJ Statute).217 A thorough examination of the
ICJ‘s jurisdiction and the admissibility of the case is not required, since the
circumstances call for an urgent decision. According to the constant case-law of the ICJ,
it is merely required that the provisions invoked by the applicant appear, prima facie, to
afford a basis on which the jurisdiction of the Court might be founded. 218 Provisional
measures will be indicated if, in the opinion of the ICJ, there exists a danger of
irreparable damage. Such an order does not prejudge either the jurisdictional issue or
the decision on the merits. Until 2001 the central and most controversial question
concerned the binding force of orders on provisional measures, because no strict
obligation follows from a linguistic interpretation of the words ‗indicate…provisional
measures‘. On the other hand, the conclusion that the order is binding may be drawn
from the fact that it aims at preserving the efficacy of the judgment on the merits. 219The
question of the binding effect of provisional measures had become crucial in the cases
relating to the Vienna Convention on Consular Relations where the ICJ urged the
United States to take all measures in order to prevent the execution of the persons
concerned.220 In its judgment of 27 June 2001,221 the ICJ stated that provisional
measures are binding upon the parties. Since the wording of Art. 41 in its French and
English version is slightly different, the ICJ interpreted it in adopting ‗the meaning which
best reconciles the texts, having regard to the object and purpose of the treaty‘ (Art. 33
(4) VCLT). The ICJ found that the object and purpose of the Statute being to enable the
Court to fulfil its function of judicial settlement of international disputes by binding
decisions, ‗the contention that provisional measures indicated under Article 41 might not
be binding would be contrary to the object and purpose of that Article‘.
 (p. 1945) 3. Intervention
121 States which are not parties in a pending case may intervene in the proceedings in
two ways. Firstly, if a State should consider that it has an interest of a legal nature which
may be affected by the decision in the case, it may submit a request to the ICJ to be
permitted to intervene (Art. 62 ICJ Statute; Art. 81 Rules of Court).222 Secondly,
whenever the construction of a convention binding States not parties to the pending
case is in question, any such State has the right to intervene in the proceedings; if this
right is exercised, the construction given by the judgment will equally be binding upon it
(Art. 63 ICJ Statute).223
122 An application for permission to intervene under Art. 62 (so-called genuine
intervention) was filed, for the first time in the history of the ICJ, in the two cases
regarding the delimitation of the continental shelf in the Central Mediterranean Sea, by
Malta in the dispute between Tunisia and Libya, and by Italy in the dispute between
Libya and Malta. In neither case did the ICJ grant the permission, because in its opinion
the conditions required by the Statute were not present, although the true reason for
dismissal was rather to be seen in the unresolved question of whether Art. 62 of the
Statute should be interpreted as requiring a jurisdictional link between the intervening
State, on the one hand, and each of the parties to the dispute, on the other.
Furthermore, it remained unsettled what were the procedural consequences of an
intervention after it has been permitted.224 In the cases cited above, the ICJ has taken
care to ensure that the claims of the State whose intervention had not been permitted
would not be prejudiced by the judgments.
123 Art. 62 of the Statute was successfully invoked for the first time by Nicaragua in its
request for permission to intervene in the dispute between El Salvador and Honduras
concerning the land, island, and maritime frontier, pending before a chamber of the ICJ.
The Plenary Court found that the chamber had to decide on the application because a
State requesting permission to intervene must take the procedural situation in the case
as it finds it.225 In its judgment granting the application, the chamber held that it follows
‗from the juridical nature and from the purpose of intervention that the existence of a
valid link of jurisdiction between the would-be intervener and the parties is not a
requirement for the success of the application‘. The intervener does not become a party
to the proceedings, because no decision will be taken concerning the interests the
preservation of which is sought and because the intervenor only has a right to be heard
by the chamber. The extent of this right and its limitations regarding the case pending
are pointed out in the judgment.226 These findings, which were made by a chamber of (p.
1946) the ICJ, constituted according to Art. 26 (2) of the Statute, have been confirmed
by the full Court in the Case Concerning the Land and Maritime Boundary between
Cameroon and Nigeria,227 where the Court permitted the intervention of Equatorial
Guinea to the extent set out in the application although there existed no jurisdictional
link between the intervener and the parties to the case. Today, it may be regarded as
settled jurisprudence that intervention under Art. 62 of the Statute does not require a
jurisdictional link between the intervener and the parties.228
124 Intervention under Art. 63 is a right of all States which are parties to a convention,
the construction of which is in question in a pending dispute. The Registrar must notify
all parties to the convention concerned. States which wish to avail themselves of their
right to intervene file a declaration to that effect. The ICJ examines whether such
declarations are admissible.
4. Counter-claims
125 The Statute does not mention counter-claims which are regulated by Art. 80 Rules
of Court. A counter-claim has to be directly connected with the subject-matter of the
claim of the other party and has to come within the jurisdiction of the ICJ. The meaning
of this provision has been elucidated by the Court in several recent cases where it has,
for the first time in its history, been confronted to counter-claims and which led to an
amendment of Rule 80 in 2001.229 In one pending case, the issue of counter-claims is
not yet definitely decided: in the Genocide Case between Croatia and Serbia the
question will be decided in the judgment on the merits; in the Immunities Case the Court
found the counter-claim inadmissible in an Order of 6 July 2011, but did, however, invite
the (p. 1947) parties to present arguments in this context.230 The ICJ found that a
counter-claim has a dual character namely that, on the one hand, it is independent and
constitutes a separate claim, and, on the other hand, it is linked at the same time to the
principal claim in so far as it reacts to it. By a counter-claim the original subject-matter is
widened by pursuing other objectives than the mere dismissal of the principal claim,
which distinguishes a counter-claim from a defence on the merits. Thus, the idea of a
counter-claim is essentially to achieve procedural economy by enabling the ICJ to have
an overview of the respective claims of the parties and decide them more consistently.
Whether the required connection to the principal claim is given and limited to the
subject-matter of the case and whether the counter-claim should be joined to the
original proceedings is a question to be decided by the Court, in case of doubt after
hearing the parties. In taking this decision the ICJ enjoys a significant measure of
discretion and may decline to join the otherwise admissible counter-claims if this serves
the good administration of justice, ie for reasons of additional complexity resulting from
a joinder. If the counter-claim is admitted, the judgment on the merits will also dispose
of the counter-claim.
IV. The Judgment
126 Judgments are final and without appeal. They have binding force only between the
parties and in respect of the particular case (Arts 59 and 60 ICJ Statute).231 A judgment
must state the reasons on which it is based. The binding force is not restricted to the
operative part of the judgment. The reasons which point out the ratio decidendi are part
of the decision and support, explain, and interpret the operative part. As with all
decisions of the ICJ, judgments are adopted by the majority of the judges present. In the
event that votes on both sides are equal, the President or the judge acting in his place
has a casting vote (Art. 55 ICJ Statute). Judgments contain the names of the judges
participating and the number and names of the judges constituting the majority. If the
judgment does not represent the unanimous opinion of the judges either in whole or in
part, any judge may deliver an individual opinion, concurring or dissenting.232 If a judge
wishes to record his concurrence or dissent without stating his reasons he may do so in
the form of a declaration (Art. 57 ICJ Statute; Art. 95 Rules of Court).
127 Judgments may call for the performance of a specific act or acts by the parties or
they may be declaratory of the law as between the parties. The ICJ may apply either
type of judgment, depending on the circumstances. The vast majority of the ICJ‘s
decisions are declaratory judgments, ‗the intention of which is to ensure recognition of a
situation at law, once and for all and with binding force as between the parties, so that
the legal position thus established cannot again be called in question in so far as the
legal effects ensuing therefrom are concerned‘.233 However, declaratory judgments may
also call for (p. 1948) the performance of a specific act,234 as, for example, the
withdrawal of a State from a territory which, according to the judgment, belongs to
another State.235
1. Interpretation of the Judgment
128 In the event of a dispute as to the meaning or scope of the judgment, parties may
make a request to the ICJ for its interpretation (Art. 60 cl 1 ICJ Statute; Art. 98 Rules of
Court).236 The request for interpretation of a judgment gives rise to the opening of a new
case. But if the judgment was given by a chamber, that chamber should also deal with
the request for interpretation (Art. 100 Rules of Court), which may cause difficulties if
the judgment was given by an ad hoc chamber. In difference to revision, there are no
time limits for bringing a request for interpretation (Art. 98 Rules of Court). In this
context it is worth mentioning that in May 2011 Cambodia filed a request for the
interpretation of the judgment rendered by the Court on 15 June 1962 in the Case
concerning the Temple of Preah Vihear (Cambodia v Thailand).237 With regard to the
jurisdiction of the Court, Cambodia explicitly relies on the initial consent of Thailand to
settle the original dispute which it considers to also cover the application for
interpretation.238
2. Revision of the Judgment
129 An application for revision of a judgment may be made only when it is based upon
the discovery of some fact of such a nature as to be a decisive factor, which was, when
the judgment was given, unknown to both the Court and the party claiming
revision,239 and only if such ignorance of a fact was due to negligence. An application for
revision has to be made at the latest within six months of the discovery of the new fact,
and no application for revision may be made after the lapse of ten years from the date
of the judgment.240 The decision on admissibility is made in the form of a judgment which
expressly (p. 1949) records the existence of the new fact, and recognizes that it has
such a character as to lay the case open to revision. The conditions for admission of an
application for revision are very strict and have been narrowly interpreted by the Court.
The revision is made in the form of a judgment.241 No application for revision has been
successful until now.
V. Cases Brought before the ICJ
130 Between the registration of the first case in the general list of the ICJ (22 May
1947) and 31 July 2008, the ICJ had to deal with a total of 138 cases, ie 114
contentious cases and twenty-four advisory cases. In those cases it gave 98 judgments,
of which fifty-four were on the merits, and twenty-four advisory opinions.242From 1988
on, the ICJ‘s activities considerably increased: at the beginning of the year 2012 (June)
there were thirteen contentious cases and no advisory opinion on the list of the ICJ.
What is remarkable is the fact that quite a number of cases involve States of the
formerly so-called ‗Third World‘ and meanwhile also Eastern European States which
may be taken as an expression of the growing acceptance of the ICJ also in these parts
of the world.243
131 In the course of the proceedings, many decisions are made in the form of an
‗order‘. In the period considered above 447 orders were made, 412 orders related to
contentious cases and thirty-five to advisory cases. The majority of such orders related
solely to the fixing or extending of time limits (in the period under consideration 334); the
other orders concerned inter alia procedural decisions of considerable importance, such
as the indication of provisional measures of protection or the denial of a request for
such measures). Six contentious cases have been decided by the final judgment of a
chamber to deal with a particular case, formed upon the request of the parties (Art. 26
(2) ICJ Statute; Art. 17 Rules of Court). At present, no case is pending before a
chamber.244
I. Evaluation
132 The ICJ can be qualified today as one of the most important organs for the
settlement of international disputes, although there are several points of criticism which
can hardly be neglected. The most important one concerns the fact that only States can
be parties in contentious cases which has to be taken seriously because today the
actors of the international community are no longer only States. But as any amendment
of the Statute meets the same hurdles as an amendment of the Charter the prospects of
accommodating the Statute to the international reality seem rather restricted. Other
critical issues could be remedied much more easily, such as the Court‘s attitude
towards communications of non-governmental organizations in advisory proceedings or
the heaviness of the procedure, in particular the written pleadings. In this context the
Court can react, and indeed has reacted, by amending the rules or adopting practice
directions.245 However, the points of criticism are largely balanced by the positive
development and acceptance (p. 1950) of the Court during the last twenty years which
has been impressive not only with regard to the number of cases brought before the
Court, but in particular with regard to the fact that African and Asian States and even
Eastern European States, which usually were rather critical vis-à-vis the Court,
increasingly make use of the ICJ. What is even more remarkable is the fact that the
original aim of international jurisdiction which was conceived as an alternative to the use
of force is increasingly reflected in the Court‘s activity: cases involving questions of use
of force and self-defence, which used to be considered as being part of the vital
interests of the States and were thus only extremely reluctantly entrusted to third party
settlement, are increasingly submitted to the Court, which enables the Court to make its
contribution to the most fundamental questions of international law. It may thus be
stated that the ICJ has found its place in the international community and that despite
some highly controversial decisions246 the Court is broadly accepted as an efficient
organ for the settlement of interstate disputes.

Footnotes:
* The author acknowledges that the following text contains elements of the respective
comments on Art. 92by Hermann Mosler† and herself in the previous edition of this
commentary.
2
For the history of the ICJ and the PCIJ, see inter alia: ICJ (ed), The International Court
of Justice, 11–20; HJ Schlochauer, ‗Permanent Court of International Justice‘ EPIL III

(1997) 988 ; HJ Schlochauer, ‗International Court of Justice‘ EPIL II (1995)

1084 ; S Rosenne, ‗International Court of Justice‘ MPEPIL (online edn); O

Spiermann, ‗Historical Introduction‘ Comm Statute (2nd edn 2012) MN 39–62 .

3
Deuxième Conférence Internationale de la Paix: La Haye 15 juin–18 octobre 1907,
Actes et Documents, vol 1, p 702 containing the vœu to establish a Court of Arbitral
Justice and a draft convention relating to the establishment a Court of Arbitral Justice; cf
also MO Hudson, The Permanent Court of International Justice 1920–1942: A

Treatise (Macmillan 1943) 81 .

4
Text of the Protocol of Signature in 6 LNTS 379–413.
5
For the elaboration of the Statute, see B Graf Schenk von Stauffenberg, Statut et
Règlement de la Cour Permanente de Justice Internationale: Elements

d’interprétation (Heymann 1934) 1 ; B Graf Schenk von Stauffenberg ‗Die Revision

des Statuts des StIGH‘ (1936) 6 ZaöRV 89 ; MO Hudson, The Permanent Court of

International Justice (1920–42) (Garland 1972) 142 ; S Rosenne, The Law and

Practice of the International Court, vol 1 (4th edn, Nijhoff 2006) 43 .

6
K Oellers-Frahm, ‗Probleme und Grenzen der obligatorischen internationalen

Gerichtsbarkeit‘ (1989) 50 ZaöRV 442–54 ; cf also Oellers-Frahm on Art. 93; C

Tomuschat, ‗Article 36‘ Comm Statute (2nd edn 2012) MN 69; cf also K Oellers-Frahm,
‗Nowhere to Go?—The Obligation to Settle Disputes Peacefully in the Absence of
Compulsory Jurisdiction‘ in T Giegerich (ed), A Wiser Century? Judicial Dispute
Settlement, Disarmament and the Laws of War 100 Years after the Second Hague

Peace Conference (Duncker & Humblot 2009) 435 .

7
GHS, 3f and 544f.

8
V Gowlland-Debbas, ‗Article 1‘ Comm Statute (2nd edn 2012) MN 25f .
9
UNCIO XIII, 524–28.
10
S Rosenne (ed), Documents on the International Court of Justice/Documents relatifs

à la Cour internationale de Justice (bilingual edition, Nijhoff 1991) 493 with details
of the assent of members of the old Statute, which did not belong to the League of
Nations, as well as of the liquidation and the taking over of the archives and books by
the ICJ and the installation of the latter in the Peace Palace at The Hague.
11
cf Tomuschat (n 6) MN 104–108. It was invoked unsuccessfully in the Aerial Incident
Case (Israel v Bulgaria) [1959] ICJ Rep 127f and the Temple of Preah Vihear Case
(Cambodia v Thailand) [1961] ICJ Rep 17f.
12
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United
States of America)(Preliminary Objections) [1984] ICJ Rep 393, 403–13, paras 24–47.
13
B Simma and D Richemond, ‗Article 37‘ Comm Statute (2nd edn 2012) passim.
14
V Gowlland-Debbas, ‗Article 7 UN Charter‘ Comm Statute (2nd edn 2012) MN

10f .
15
See MN 5.
16
cf Gowlland-Debbas (n 14) MN 10–16.
17
cf Sir H Lauterpacht, ‗The Revisions of the Statute of the International Court of

Justice‘ (2002) 1 LPICT 55 ; this is a provisional report prepared in 1955 by the late
Sir Hersch Lauterpacht for the Court and published for the first time by his son in the
above mentioned periodical. cf for further details also W Karl, ‗Article 69‘ Comm Statute
(2nd edn 2012).
18
cf Karl (n 17) MN 15–17; Oellers-Frahm on Art. 93 MN 9.
19
Gowlland-Debbas (n 14) MN 13f and Anglo-Iranian Oil Co. (United Kingdom v
Iran) (Dissenting Opinion Judge Read) [1952] ICJ Rep 143–44.
20
Statement of discontinuance by the Court in the Order of 10 September 2003 [2003]
ICJ Rep 149.
21
Case Concerning Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Provisional Measures) [1992]
ICJ Rep 3, 114; Lockerbie (Preliminary Objections) [1998] ICJ Rep 9, 115; out of the
numerous doctrinal comments see eg T Stein, ‗Das Attentat von Lockerbie vor dem
Sicherheitsrat der Vereinten Nationen und dem Internationalen Gerichtshof‘ (1993) 31

AVR 206 ; V Gowlland-Debbas, ‗The Relationship between the International Court

of Justice and the Security Council in the Light of the Lockerbie Case‘ (1994) 88 AJIL

643 ; K Doehring, ‗Unlawful Resolutions of the Security Council and their Legal

Consequences‘ (1997) 1 Max Planck YB UN L 91–109 ; F Mazeron, ‗Le contrôle de

légalité des decisions du Conseil de Sécurité‘ (1997) 10 Revue Québecoise de droit
international 105–36 ; JM Sorel, ‗Les arrêts de la C.I.J. de 27 février 1998 sur les
exceptions preliminaires dans les affaires dites de Lockerbie: et le suspense

demeure…‘ (1998) 102 RGDIP 685ff .

22
cf in this context the Advisory Opinion on Accordance with International Law of the
Unilateral Declaration of Independence in Respect of Kosovo [2010] <http://www.icj-
cij.org/docket/files/141/15987.pdf> accessed 12 June 2012, paras 29–48; cf also the
opinion concerning Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory [2004] ICJ Rep 136f, 148f, paras 25–28.
23
Gowlland-Debbas (n 14) MN 37.
24
Aegean Sea Continental Shelf Case (Greece v Turkey) (Provisional Measures)
[1976] ICJ Rep 3; United States Diplomatic and Consular Staff in Tehran case (United
States of America v Iran) [1980] ICJ Rep 3, 21–22; Nicaragua (Jurisdiction and
Admissibility) [1984] ICJ Rep 436; Lockerbie [1998] ICJ Rep 23–24 and 128–29; Armed
Activities on the Territory of the Congo case (Congo v Uganda) (Provisional Measures)
[2000] ICJ Rep 111, para 36.
25
E Klein, ‗Paralleles Tätigwerden von Sicherheitsrat und Internationalem Gerichtshof
bei friedensbedrohenden Streitigkeiten‘ in R Bernhardt and others (eds), Völkerrecht als
Rechtsordnung, internationale Gerichtsbarkeit, Menschenrechte: Festschrift für

Hermann Mosler (Springer 1983) ; TJH Elsen, Litispendence between the

International Court of Justice and the Security Council (1985) LLM Theses and Essays,
Paper 100 <http://digitalcommons.law.uga.edu/stu_llm/100> accessed 12 June 2012;
Gowlland-Debbas (n 21), 644–77; Gowlland-Debbas (n 14) MN 37–41; MI Papa, I
rapporti tra la Corte Internazionale di Giustizia e il Consiglio di Sicurezza (CEDAM

2006) ; C McLachlan, Lis pendens in international litigation (Nijhoff 2009) .

26
Tehran Hostages Case [1980] ICJ Rep 3, 21, para 40; Aegean Sea Case [1976] ICJ
Rep 3, 12–13, paras 36–41; cf CPF/ Tomka, 1949.
27
Nicaragua (Jurisdiction and Admissibility) [1984] ICJ Rep 435.
28
Lockerbie [1992] ICJ Rep 3, 114.
29
Lockerbie (Preliminary Objections) [1998] ICJ Rep 23–24, 29 and 129, 134
and Lockerbie (Order on Discontinuance) [1999] ICJ Rep 975 and 979; cf also
Gowlland-Debbas (n 14) MN 41.
30
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory (Advisory Opinion) [2004] ICJ Rep 136, 155, para 41; cf K Oellers-Frahm,

‗Article 96‘ Comm Statute (2nd edn 2012) MN 22 and JA Frowein and K Oellers-

Frahm, ‗Article 65‘ Comm Statute (2nd edn 2012) MN 22–25 ; Kosovo (n 22), para
46.
31
Lockerbie [1992] ICJ Rep 3 and 114, cf in particular Judge Bedjaoui, 33, 44 (para 22)
and 143, 154 (para 22).
32
JA Frowein, ‗Konstitutionalisierung des Völkerrechts?‘(1999) 39 DGVR Berichte

427ff ; PM Dupuy, ‗The Constitutional Dimension of the Charter of the United

Nations Revisited‘ (1997) 1 Max Planck YB UN L 1ff ; SC Breau, ‗The

Constitutionalization of the International Legal Order‘ (2008) 21 Leiden J Intl L 545ff

; O Diggelmann and T Altwicker, ‗Is there something like a Constitution of International

Law (2008) 68 ZaöRV 623ff ; E de Wet, ‗The International Constitutional Order

(2006) 55 ICLQ 51ff ; J Klabbers, A Peters, and G Ulfstein (eds), The

Constitutionalisation of International Law (OUP 2009) .

33
As regards the international legal relations, see Reparations for Injuries Suffered in
the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174; for the
national jurisdiction, see Art. 104 UN Charter.

34
R Mackenzie, Selecting International Judges (OUP 2010) .
35
See Art. 17 UN Charter; Arts 33, 32 (7), and 35 (3) ICJ Statute; cf C Espósito, ‗Article

33‘ Comm Statute (2nd edn 2012) MN 12f ; however, each party to proceedings
bears its own costs, unless otherwise decided by the ICJ (Art. 64 ICJ Statute); cf the
decision on costs in the Land and Maritime Boundary Between Cameroon and Nigeria
Case (Interpretation of the Judgment of 11 June 1998) [1999] ICJ Rep 39–40, para 18.
36
Rosenne (n 5) 437–503; K Oellers-Frahm, ‗Status, Ausstattung und Personalhoheit

internationaler Gerichte/IGH, IStGH, ICTY‘ (2003) 30 EuGRZ 107ff .

37
cf M Shaw, ‗Article 21‘ Comm Statute (2nd edn 2012) MN 39f .
38
cf President Schwebel, ICJ Yearbook 1999–2000, 282–88; and also President
Guillaume, ICJ Yearbook 2000–01, 319–26; the annual reports are available on the
homepage of the ICJ under the item ‗The Court‘.

39
Art. 30 ICJ Statute; cf H Thirlway, ‗Article 30‘ Comm Statute (2nd edn 2012) ;G
Guyomar, Commentaire du règlement de la Cour Internationale de Justice: adopté le 14

avril 1978; interprétation et pratique (Pedone 1983) .

40
ICJ Acts and Documents 6 (2007) 91–161.
41
The amendments entered into force on 1 February 2001; cf ICJ Press Release
2001/1 <http://www.icj-cij.org/presscom/index.php?p1=6&p2=1&p3=-1&pt=&y=2001>
accessed 12 June 2012; further amendments of the Rules date from April 2002, April
2005, and September 2005 (Press Release 2002/12; 2005/9; 2005/19) <http://www.icj-
cij.org/presscom/index.php?p1=6&p2=1> accessed 12 June 2012; cf homepage of the
ICJ under the item ‗Basic Documents‘.
42
Rosenne (n 2).
43
ICJ Press Release 2001/32 <http://www.icj-
cij.org/presscom/index.php?pr=110&pt=&p1=6&p2=1> accessed 12 June 2012.
44
ICJ Press Release 2009/8 <http://www.icj-cij.org/presscom/files/3/14983.pdf>
accessed 12 June 2012; cf also homepage of the Court under the item ‗Basic
Documents‘.
45
Oellers-Frahm on Art. 93 MN 2 and MN 9–13, and A Zimmermann, ‗Article 35‘ Comm

Statute (2nd edn 2012) MN 39–80 .

46
K Oellers-Frahm, ‗Law-Making through Advisory Opinions‘ in A von Bogdandy

(ed), Law-Making by International Judicial Organs (2011) 12 GLJ 1033–56

<http://www.germanlawjournal.com/index.php?pageID=11&artID=1352> accessed 12
June 2012 and Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, vol
236, 2012.
47
Reparation for Injuries Suffered in the Service of the United Nations (Advisory
Opinion) [1949] ICJ Rep 174, 178–79.
48
Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) Notwithstanding Security Council Resolution 276
(1970) [1971] ICJ Rep 16.
49
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep
226, 263.
50
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory (Advisory Opinion) [2004] ICJ Rep 136, 194, para 139.
51
Fisheries (United Kingdom v Norway) (Judgment) [1951] ICJ Rep 116; North Sea
Continental Shelf(Judgment) [1969] ICJ Rep 3; Fisheries Jurisdiction (United Kingdom
of Great Britain and Northern Ireland v Iceland) [1974] ICJ Rep 3; (Federal Republic of
Germany v Iceland) 175; Continental Shelf (Tunisia-Libyan Arab Jamahiriya) [1982] ICJ
Rep 18.
52
Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide (Advisory Opinion) [1951] ICJ Rep 15f.
53
Oellers-Frahm on Art. 96 MN 4; cf also Conditions of Admission of a State to
Membership in the United Nations (Art. 4 UN Charter) (Advisory Opinion) [1948] ICJ
Rep 57; Certain Expenses of the United Nations (Article 17, Paragraph 2, of the
Charter) (Advisory Opinion) [1962] ICJ Rep 156; Legality of the Threat or Use of
Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226.
54
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v
Uganda) [2005] ICJ Rep 168, 223f; Oil Platforms (Islamic Republic of Iran v United
States of America) [2001] ICJ Rep 161, 183, para 42.

55
On reservations cf Tomuschat, ‗Article 36‘ Comm Statute (2nd edn 2012) MN 68f
.
56
Nicaragua (Jurisdiction and Admissibility) [1984] ICJ Rep 393, 421–26, paras 67–
76; Border and transborder actions (Nicaragua v Costa Rica) (Merits) [1986] ICJ Rep
14, 28–38, 146, paras 36–56, 292 [1].

57
Tomuschat, ‗Article 36‘ Comm Statute (2nd edn 2012) MN 47 .
58
International Status of South West Africa (Advisory Opinion) [1950] ICJ Rep 189
(Dissenting Opinion Judge de Visscher); Competence of the General Assembly for the
Admission of a State to the United Nations(Advisory Opinion) [1950] ICJ Rep 8–
9; Certain Expenses [1962] ICJ Rep 157; Wall [2004] ICJ Rep 136, 194, paras 138–39;
the interpretation of the Charter is, however, not limited to advisory opinions: cf in
particular the interpretation of Art. 51 of the Charter in the following contentious
cases: Armed Activities on the Territory of the Congo (Congo v Uganda) [2005] ICJ Rep
168, 223f; Oil Platforms (Islamic Republic of Iran v United States of America) [2001] ICJ
Rep 161, 183, para 42.
59
UNCIO XIII, 381f, 393.
60
UNCIO I, 622; UNCIO XIII, 413.
61
UNGA Res 171 (II) (14 November 1947) UN Doc A/RES/171(II).
62
South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Second
Phase) [1966] ICJ Rep 6f.
63
UNGA Res 2625 (XXV) (24 October 1970) UN Doc A/RES/2625(XXV).
64
UNGA Res 2723 (XXV) (15 December 1970) UN Doc A/RES/2723(XXV); UNGA Res
2818 (XXVI) (14 December 1971) UN Doc A/RES/2818(XXVI).
65
UNGA Res 3232 (XXIX) (12 November 1974) UN Doc A/RES/3232(XXIX). For a
survey of the proposals cf H Golsong, ‗Role and Functioning of the ICJ-Proposals
Recently Made on the Subject‘ (1971) 31 ZaöRV 673–96.
66
ICJ Acts and Documents 3 (1972) 92–149.
67
UNGA Res 37/10 (15 November 1982) UN Doc A/RES/37/10; Annex: Manila
Declaration on the Peaceful Settlement of Disputes.
68
UNGA Res 45/40 (28 November 1990) UN Doc A/RES/45/40.
69
In this context the ‗Agenda for Peace‘ presented by the then Secretary General
Boutros-Ghali to the 47th session of the GA also has to be mentioned briefly, in which
he recommended inter alia that more use should be made of the advisory function of the
ICJ (UN Doc A/47/277) and that also the Secretary-General should be authorized to
request advisory opinions from the Court. The GA did not, however, take up this
proposal in its UNGA Res 47/120 B III (An Agenda for Peace: Preventive diplomacy and
related matters), adopted 20 September 1993. Since then, the GA has repeatedly
expressed concern that more effective use be made of the Court; however, no further
proposals were made requiring an amendment of the Statute as would have been the
case with authorizing the Secretary-General to request advisory opinions.
70
The workload of the Court steadily increased during the 1990s and reached a
maximum with more than twenty cases on the docket in March 2004. In (June) 2012
thirteen cases were pending before the Court.
71
cf ICJ Yearbook 2007–08, 221–22.
72
For the History of Art. 38 (2) ICJ Statute see Schenk von Stauffenberg (n 5) 281–82

and A Pellet, ‗Article 38‘ Comm Statute (2nd edn 2012) MN 157–172 .
73
cf Oellers-Frahm on Art. 95.
74
Corfu Channel (United Kingdom of Great Britain and Northern Ireland v People’s
Republic of Albania)(Preliminary Objections) [1947–48] ICJ Rep 15, 17.
75
Separate Opinions of Judges Basdevant, Alvarez, Winiarski, Zoricic, De Visscher,
Badawi Pasha, and Krylov, ibid, 31–32.
76
GHS, 282–3. Critical remarks on the failure of the SC to act: E Jiménez de Aréchaga,
‗International Law in the Past Third of a Century‘ (1978-I) 159 Rec des Cours 148–49. cf

also T Giegerich, ‗Article 36 UN Charter‘ Comm Statute (2nd edn 2012) MN 61 and
T Schweisfurth on Art. 34.
77
V Gowlland-Debbas, ‗Article 7 UN Charter‘ Comm Statute (2nd edn 2012) MN 55f

with further details .

78
UNGA Res 351 (IV) (24 November 1949) UN Doc A/Res/351(IV); S Bastid, ‗United

Nations Administrative Tribunal‘ EPIL IV (2000) 1043–51 ; CF Amerasinghe, The

Law of the International Civil Service: As Applied by International Administrative

Tribunals (Clarendon Press 1988) 54–57.

79
cf Oellers-Frahm on Art. 96 MN 19.
80
UNGA Res 50/54 (11 December 1995) UN Doc A/Res/50/54.
81
cf UNGA Res 63/253 (24 December 2008) UN Doc A/Res/63/253 and UNGA Res
62/228 (22 December 2007) UN Doc A/Res/62/228 and UNGA Res 61/261 (4 April
2007) UN Doc A/Res/61/261; cf also P Vargiu, ‗From Advisory Opinions to Binding
Decisions: The New Appeal Mechanism of the UN System of Administration of Justice‘

(2010) 7 IOLR 261–75 .

82
See MN 28.
83
Staff Regs for the Registry of the International Court of Justice approved by the ICJ
on 7 March 1979, in accordance with Art. 21 (2) of the Statute and with Art. 28 (4) of the
Rules of Court, Art. 11 and Annex VI, ICJ Yearbook 1978–79, 127–31. In 1987, these
regulations were amended, ICJ Yearbook 1988–89, 163–64. In 1997, Art. 11 and Annex
VI were amended instituting a new system of Registry staff appeals against
administrative decisions or disciplinary measures, ICJ Yearbook 1997–98, 265–72.

84
B Knapp, ‗International Labour Organisation Tribunal‘ EPIL II (1995) 1156–59 ;
Amerasinghe (n 78) 49–53, 60.
85
Request for review of Judgment No 2867 of the ILOAT upon a complaint filed against
the International Fund for Agricultural Development, Advisory Opinion of 1 February
2011, <http://www.icj-cij.org/docket/files/146/16871.pdf> accessed 12 June 2012, where
the ICJ expressed its concern with regard in particular to the aspect of the equality of
the parties in this kind of advisory opinion, paras 33f.

86
T Meron, ‗World Bank Administrative Tribunal‘ EPIL IV (2000) 1485–88 ; CF
Amerasinghe, Case-Law of the World Bank Administrative Tribunal: an Analytical

Digest, vols 1–3 (Clarendon Press 1998) .

87
For the ICTY: UNSC Res 827 (25 May 1993) UN Doc S/Res/827; V Morris and MP
Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former

Yugoslavia, vols 1–2 (Brill Academic Publishers 1995) ; for the ICTR: UNSC Res
955 (8 November 1994) UN Doc S/Res/955; V Morris and MP Scharf, The International

Criminal Tribunal for Rwanda, vols 1–2 (Transnational Publishers 1998) .

88
See Paulus and Lippold on Art. 29 MN 63–92.
89
UNSC Res 692 (20 May 1991) UN Doc S/Res/692; V Heiskanen, ‗The United Nations

Compensation Commission‘ (2002) 296 Rec des Cours 255–398 ; Boisson de

Chazournes and D Campanelli, ‗The United Nations Compensation Commission—Time

for an Assessment‘ [2008] Frieden und Freiheit 3–17 ; DD Caron and B Morris, ‗The
UN Compensation Commission: Practical Justice, not Retribution‘ (2002) 113 EJIL 183–

99 .
90
Sir RY Jennings, ‗The Judicial Function and the Rule of Law in International
Relations‘ in Università di Genova (ed), Le droit international à l’heure de sa

codification: Etudes en L’honneur de Roberto Ago (Guiffre 1987) 139–51 ;T

Sugihara, ‗The Judicial Function of the International Court of Justice with respect to
Disputes Involving Highly Political Issues‘ in AS Muller (ed), The International Court of

Justice: Its future role after fifty years (Nijhoff 1997) 117–38 ; S Torres Bernárdez,
‗La fonction de la Cour internationale de Justice: tendances actuelles du règlement
judiciaire‘ in E Yapko (ed), Liber Amicorum Judge Mohammed Bedjaoui (Kluwer Law

International 1999) 485–524 .

91
Oellers-Frahm on Art. 96 MN 22–24; JA Frowein and K Oellers-Frahm, ‗Article 65‘

Comm Statute (2nd edn 2012) MN 38–40 .

92
Northern Cameroons (Cameroon v United Kingdom) [1963] ICJ Rep 15, 33–34; cf
generally on this issue V Gowlland-Debbas, ‗Article 1‘ Comm Statute (2nd edn 2012)

MN 20f .
93
Applicability of the Obligation to Arbitrate under Section 21 of the United Nations
Headquarters Agreement of 26 June 1947 (Advisory Opinion) [1988] ICJ Rep 27.
94
cf eg Nuclear Tests Case (Australia v France) [1974] ICJ Rep 253, 272, para 59. cf
generally as to the issue of mootness Tomuschat, ‗Article 36‘ Comm Statute (2nd edn

2012) MN 135 ; G Wegen, ‗Discontinuance‘ Comm Statute (2nd edn 2012) MN 8–

10 ; R Kolb, ‗General Principles‘ Comm Statute (2nd edn 2012) MN 30 .

95
P Couvreur, ‗Article 17‘ Comm Statute (2nd edn 2012) MN 13–20 .
96
H Mosler, ‗Problems and Tasks of International Judicial and Arbitral Settlement of
Disputes: 50 Years after the Founding of the World Court‘ in Max Planck Institute for
Comparative Public Law and International Law (ed), Judicial Settlement of International
Disputes: International Court of Justice, other courts and tribunals, arbitration and

conciliation (Springer 1974) 8–14 ; Joined Cases C-69–79/96 Garofalo and others v
Ministero della Sanità and USL no. 58 di Palermo [1997] ECR I-5603, 5628, para 19;
see also C Tomuschat, ‗International Courts and Tribunals‘ MPEPIL (online edn) MN 1–
6.
97
Arbitral courts and tribunals, which are also judicial bodies, differ from courts in the
proper sense mainly by their non-permanent character.
98
See MN 69.

99
For more details cf P Palchetti, ‗Article 26‘ Comm Statute (2nd edn 2012) MN 33f
.
100
S Rosenne, ‗Article 31 of the Statute of the International Court of Justice Revisited‘ in
RJ Dupuy (ed), Mélanges en l’honneur de Nicolas Valticos: droit et justice (Pedone

1999) 301–17 ; SM Schwebel, ‗National Judges and Judges Ad Hoc‘ ibid, 319–

29 ; cf also PH Kooijmans, ‗Article 31‘ Comm Statute (2nd edn 2012).

101
cf DE Khan, ‗Article 20‘ Comm Statute (2nd edn 2012) and PH Kooijmans,

‗Article 31‘ Comm Statute (2nd edn 2012) MN 4 .

102
cf Couvreur, ‗Article 16‘ and ‗Article 17‘ Comm Statute (2nd edn 2012) and R

Jennings, ‗Article 24‘ Comm Statute (2nd edn 2012) . cf in this context also the
Order of 30 November 2011 in the Case concerning the Chagos Islands (Mauritius v
United Kingdom) before an Arbitration Tribunal under Art. 1 of Annex VII of the Law of
the Sea Convention dismissing the challenge of Judge Greenwood, nominated by the
UK,<http://www.pca-
cpa.org/upload/files/Reasoned%20Decision%20on%20Challenge.PDF> accessed 12
June 2012.

103
cf Pellet, ‗Article 38‘ Comm Statute (2nd edn 2012) MN 42–48 .

104
cf C Brown, ‗Article 59‘ Comm Statute (2nd edn 2012) passim and A

Zimmermann and T Thienel, ‗Article 60‘ Comm Statute (2nd edn 2012) passim .
105
North Sea Continental Shelf [1969] ICJ Rep 3; Continental Shelf (Tunisia v
Libya) [1982] ICJ Rep 18; Continental Shelf (Libya v Malta) [1985] ICJ Rep 13.
106
Art. 61 ICJ Statute, cf Zimmermann and Geiss, ‗Art. 61‘ Comm Statute (2nd edn

2012) ; Application for Revision of the Judgment of 11 July 1996 in the Case
Concerning Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Preliminary Objections)
[2003] ICJ Rep 7ff; Application for Revision of the Judgment of 11 September 1992 in
the Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador v
Honduras, Nicaragua Intervening)[2003] ICJ Rep 392f. cf also A Zimmermann and R
Geiß, ‗Revision Proceedings before the International Court of Justice‘ (2003) 63 ZaöRV

167–94 .
107
eg Art. 38 of the Convention Instituting the Definitive Statute of the Danube of 23
July 1921 (signed 23 July 1921) 26 LNTS 173 and the Mixed Arbitral Tribunals referring
to the PCIJ and Art. 84 of the Convention on International Civil Aviation; cf K Oellers-
Frahm, ‗International Courts and Tribunals, Appeals‘ MPEPIL (online edn) MN 23–29.
108
Appeal Relating to the Jurisdiction of the ICAO Council (Judgment) [1972] ICJ Rep
46; Application for Review of Judgment No 158 of the United Nations Administrative
Tribunal (Advisory Opinion) [1973] ICJ Rep 187–88; Application of Review of Judgment
No 273 of the United Nations Administrative Tribunal (Advisory Opinion) [1982] ICJ Rep
356–57; see Oellers-Frahm on Art. 96 MN 19.
109
Art. 4 (1) ICJ Statute; Art. 44 of the Hague Convention on the Pacific Settlement of
International Disputes of 18 October 1907; cf P Georget, V Golotsyn, and R Zacklin,

‗Article 4‘ Comm Statute (2nd edn 2012) MN 14f .

110
Rosenne (n 5) 373–74; see for reasons of disqualification Art. 19 UN Charter.

111
cf M Aznar-Gómez, ‗Article 2‘ Comm Statute (2nd edn 2012) MN 7f .
112
A classification along these lines has been proposed by E McWhinney, ‗Law, Politics
and ―Regionalism‖ in the Nomination and Election of World Court Judges‘ (1986) 13 Syr

J Intl L & Com 1–27 ; cf also G Abi-Saab, ‗Ensuring the Best Bench: Ways of
Selecting Judges‘ in C Peck and RS Lee (eds), Increasing Effectiveness of the
International Court of Justice: Proceedings of the ICJ/UNITAR Colloquium to Celebrate

the 50th Anniversary of the Court (Nijhoff 1997) 166–87 ; G Guillaume, ‗De
l‘indépendance des Membres de la Cour Internationale de Justice‘ in Boutros Boutros-
Ghali, Amicorum Discipulorumque Liber: paix, développement, démocratie (Bruylant

1998) 475–87 ; Mackenzie (n 34).

113
Rosenne (n 5) 361 and 385.

114
cf B Fassbender, ‗Article 9‘ Comm Statute (2nd edn 2012) MN 20 .
115
ICJ homepage, ‗The Court, Members of the Court‘; <http://www.icj-
cij.org/court/index.php?p1=1&p2=2> accessed 30, July 2012; cf also A Oraison,
‗L‘évolution de la composition de la Cour internationale de Justice siégeant en séance
plénière de 1945 à nos jours: Le déclin relatif des juges occidentaux au sein de

l‘Organe judiciaire principal des Nations Unies‘ (1999) 77 RDI 61–91 ;B

Fassbender, ‗Article 9‘ Comm Statute (2nd edn 2012) MN 22f .

116
P Couvreur, ‗Article 18‘ Comm Statute (2nd edn 2012) MN 6f .
117
cf Lockerbie (Preliminary Objections) [1998] ICJ Rep 13; cf P Couvreur, ‗Article 17‘

Comm Statute (2nd edn 2012) MN 17f and R Jennings and P Couvreur, ‗Article 24‘

Comm Statute (2nd edn 2012) MN 13f .

118
A list of all judges is available on the homepage of the ICJ, item ‗The Court,
Members of the Court, All Members‘ <http://www.icj-
icij.org/court/index.php?p1=1&p2=2> accessed 30 July 2012.

119
cf PH Kooijmans, ‗Article 31‘ Comm Statute (2nd edn 2012) MN 5 .
120
Legality of Use of Force (Yugoslavia v Belgium and others) (Order of 2 June 1999:
Provisional Measures) Dissenting Opinion Judge Kreca; see also Lockerbie (Preliminary
Objections) [1998] ICJ Rep 9 (joint decaration of Bedjaoui, Guillaume and Ranjeva,
32f); Rosenne (n 2) MN 40.
121
See MN 76–82, and P Palchetti, ‗Article 26‘ Comm Statute (2nd edn 2012) MN 14–

15 .
122
Guyomar (n 39) 41; H Thirlway, ‗Article 30‘ Comm Statute (2nd edn 2012) MN 39–

40 .
123
Western Sahara [1975] ICJ Rep 104, 133.
124
H Thirlway, ‗Article 30‘ in Comm Statue MN 40; see also Pulp Mills on the River
Uruguay (Argentina v Uruguay) [2010] ICJ Rep 14, 108; SO Al-Khasawneh and B
Simma (paras 1–17 of the opinion), who urge the Court to make more use of experts, in
particular in cases concerning special matters as, in the present case, environmental
issues.

125
cf M Shaw, ‗Article 21‘ Comm Statute (2nd edn 2012) MN 39–42 ; Rosenne (n 5)
419f.

126
cf M Shaw, ‗Article 21‘ Comm Statute (2nd edn 2012) .
127
Lockerbie (Preliminary Objections) [1998] ICJ Rep 119.

128
Guyomar (n 39) 358; M Shaw, ‗Article 22‘ Comm Statute (2nd edn 2012) MN 15f
.

129
C Walter, ‗Article 44‘ Comm Statute (2nd edn 2012) MN 6f .
130
Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (Order of 5 February 1997)
[1997] ICJ Rep 3; Gabčíkovo-Nagymaros Project (Judgment) [1997] ICJ Rep 13–14; M
Bedjaoui, ‗La ―descente sur les lieux‖ dans la pratique de la Cour internationale de
Justice et sa devancière‘ in G Hafner and others (eds), Liber amicorum Prof. Seidl-

Hohenveldern: In Honour of his 80th Birthday (Kluwer 1998) 1–23 .

131
cf S Talmon, ‗Article 23‘ Comm Statute (2nd edn 2012) MN 35 .
132
Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 226, 266. In this
case, the ICJ found, by the casting vote of the President, that ‗it could not conclude
definitively whether the threat or use of nuclear weapons would be lawful or unlawful in
an extreme circumstance of self-defence‘.

133
cf Palchetti, ‗Article 29‘ Comm Statute (2nd edn 2012) .
134
The chamber rendered two judgments in the same case: Treaty of Neuilly PCIJ Rep
Ser A No 3; Interpretation of Judgment No 3 PCIJ Rep Ser A No 4; Guyomar (n 39) 60–
64.

135
cf Palchetti, ‗Article 26‘ Comm Statute (2nd edn 2012) MN 20–27 .
136
ICJ Communiqué No 93/20 (19 July 1993).
137
ICJ Communiqué No 2006/6 (18 February 2006).

138
cf Palchetti, ‗Article 26‘ Comm Statute (2nd edn 2012) MN 28f .
139
In favour, inter alia: UNGA Res 3232 (XXIX) (12 December 1974) UN Doc
A/Res/3232(XXIX); E Jiménez de Arechaga, ‗The Amendments of the Rules of

Procedure of the International Court of Justice‘ (1973) 27 AJIL 1, 3 ; S Rosenne,

‗The 1972 Revision of the Rules of the International Court of Justice‘ (1973) 8 Israel LR

196–253 ; SM Schwebel, ‗Chambers of the International Court of Justice Formed for

Particular Cases‘ in Y Dinstein (ed), International Law at a Time of Perplexity. Essays in

Honour of Shabtai Rosenne (8th edn, Nijhoff 1989) 739, 767 ; the opposite opinion
was expressed by Judge Shahabuddeen in the Land,Island and Maritime Frontier
Dispute Case [1990] ICJ Rep 18–53; G Abi-Saab, ‗De l‘évolution de la Cour
internationale de Justice: Réflexions sur quelques tendances récentes‘ (1992) 94

RGDIP 273, 287 .

140
Application for Revision of the Judgment of 11 September 1992 in the Case
concerning the Land, Island and Maritime Frontier Dispute (El Salvador v
Honduras) [2002] ICJ Rep 618f.
141
Gulf of Maine [1984] ICJ Rep 246; Case concerning the Frontier Dispute (Burkina
Faso v Republic of Mali) (Judgment) [1986] ICJ Rep 554; Case concerning Elettronica
Sicula S.p.A. (ELSI) (United States of America v Italy) (Judgment) [1989] ICJ Rep
15; Land, Island and Maritime Frontier Dispute (El Salvador v Honduras) (Judgment)
[1992] ICJ Rep 351; Frontier Dispute (Benin v Niger) [2005] ICJ Rep 90f.

142
Art. 27 ICJ Statute; cf Palchetti, ‗Article 27‘ Comm Statute (2nd edn 2012) MN 4 .
143
Land, Island and Maritime Frontier Dispute (El Salvador v Honduras) [1992] ICJ Rep
92f.
144
See the discussion on ad hoc chambers in: Land, Island and Maritime Frontier
Dispute (El Salvador v Honduras) (Order of 13 December 1989: Composition of the
Chamber) [1989] ICJ Rep 165–72 (Separate Opinion Judge Shahabuddeen); H Mosler,
‗The ad hoc Chambers of the International Court of Justice‘ in Y Dinstein and M Tabory

(eds), International Law at a Time of Perplexity (Nijhoff 1989) 449f ; SM Schwebel,

‗Chambers of the International Court of Justice formed for Particular Cases‘ ibid,
739f ; E Valencia-Ospina, ‗The Use of Chambers in the International Court of
Justice‘ in E Lowe and M Fitzmaurice (eds), Fifty Years of the International Court of

Justice: Essays in Honour of Sir Robert Jennings (CUP 1996) 503f .

145
cf PM Dupuy, ‗Article 34‘ Comm Statute (2nd edn 2012) MN 18f .

146
K Oellers-Frahm, ‗Article 93‘ Comm Statute (2nd edn 2012) and A Zimmermann,

‗Article 35‘ Comm Statute (2nd edn 2012) .

147
S Schorer, Das Konsensprinzip in der internationalen Gerichtsbarkeit (Lang

2003) .

148
cf C Tomuschat, ‗Article 36‘ Comm Statute (2nd edn 2012) MN 34f .
149
eg Art. 17 of the Geneva General Act for the Pacific Settlement of International
Disputes of 26 September 1928 and 28 April 1949; Art. 1 of the European Convention
on the Peaceful Settlement of Disputes of 29 April 1957.
150
For a list of such treaties cf ICJ Yearbook 2007–08 (last edn) 177–98.
151
For a list of declarations cf ICJ Yearbook 2007–08 (last edn) 130–76.
152
For an overview cf C Tomuschat, ‗Article 36‘ Comm Statute (2nd edn 2012) MN 38–

45 and P Tomka, ‗The Special Agreement‘ in N Ando, E McWhinney, and R

Wolfrum (eds), Liber amicorum Judge Shigeru Oda (Kluwer Law International 2002)

553–65 .
153
Corfu Channel (United Kingdom of Great Britain and Northern Ireland v People’s
Republic of Albania)(Judgment: Preliminary Objections) [1948] ICJ Rep 15, 27; Haya
della Torre (Colombia v Peru) (Judgment) [1951] ICJ Rep 71, 78; Case concerning
Legality of Use of Force (Yugoslavia v France) (Order of 2 June 1999: Provisional
Measures) [1999] ICJ Rep 363, 373f, paras 29–31; Case concerning Legality of Use of
Force (Yugoslavia v United States of America) (Order of 2 June 1999) ibid, paras 26–
28; Certain Criminal Proceedings in France (Republic of the Congo v France), where
France accepted the jurisrdiction of the Court; the case was discontinued in 2010,
[2010] <http://www.icj-cij.org/docket/files/129/16266.pdf> accessed 12 June 2012
and Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France),
where France had accepted the Jurisdiction of the Court for the concrete case; the case
was decided by Judgment of 4 June 2008, [2008] ICJ Rep 177.
154
Schenk v Stauffenberg, Statut et Règlement 253.

155
cf Pellet, ‗Article 38‘ Comm Statute (2nd edn 2012) MN 161–175 .
156
Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory
Opinion) [1996] ICJ Rep 74–75.
157
cf Giegerich on Art. 36 MN 55–64.
158
Corfu Channel (United Kingdom of Great Britain and Northern Ireland v People’s
Republic of Albania)[1948] ICJ Rep 15, UNSC Res 22 (9 April 1947) UN Doc S/324; see
also Pleadings, Oral Argument, Documents 1950, vol 3, 76, 81, 114; and in the Greek–
Turkish dispute over the Aegean Sea, UNSC Res 395 (25 August 1976) UN Doc
S/Res/395; Aegean Sea Continental Shelf (Greece v Turkey) [1978] ICJ Rep 3, 11–12,
paras 232–27; cf MN 43 and C Tomuschat, ‗Article 36‘ Comm Statute (2nd edn 2012)

MN 46–47 .
159
A list of the treaties is found in the ICJ Yearbook 2007–08 (last edn) 177–98.
160
Fisheries Jurisdiction (United Kingdom v Iceland) [1974] ICJ Rep 125 (Separate
Opinion Judge Waldock), with reference to Mavrommatis Palestine Concessions PCIJ
Rep Ser A No 2, 11; Lockerbie Case [1998] ICJ Rep 122f; Vienna Convention on
Consular Relations (Paraguay v United States of America) (Order of 10 November
1998: Provisional Measures) [1998] ICJ Rep 255–57.

161
cf C Tomuschat, ‗Article 36‘ Comm Statute (2nd edn 2012) MN 8–15 ; cf
also Certain Property (Liechtenstein v Germany) [2005] ICJ Rep 6, 18–19, paras 24–
26; Request for Interpretation of the Judgment of 31 March 2004 in the case concerning
Avena and Other Mexican Nationals (Mexico v United States of America) [2009] ICJ
Rep 3, 11–17, paras 25–42.
162
Homepage of the ICJ, item ‗Jurisdiction‘ <http://www.icj-
cij.org/jurisdiction/index.php?p1=s> accessed 30 July 2012.

163
C Tomuschat, ‗Article 36‘ Comm Statute (2nd edn 2012) MN 70 . Declarations
without reservations have been made by Cameroon, Commonwealth of Dominica,
Costa Rica, Democratic Republic of the Congo, Denmark, Dominican Republic,
Georgia, Guinea-Bissau, Haiti, Panama, Switzerland, Togo, Uganda, and Uruguay.
164
In this context cf Aerial Incident of 10 August 1999 [2000] ICJ Rep 12f.
165
Fisheries Jurisdiction (Spain v Canada) [1996] ICJ Rep 58ff.

cf C Tomuschat, ‗Article 36‘ Comm Statute (2nd edn 2012) MN 83–100

166
and S
Rosenne, The Law and Practice of the International Court, vol 2 (4th edn, Nijhoff 2006)

731f .
167
US Declaration of 14 August 1946, US Department of State Bulletin, vol 15 (1
September 1946) 453.
168
Certain Norvegian Loans (France v Norway) [1957] ICJ Rep 9, 43–66; Interhandel
(Switzerland v United States of America) [1957] ICJ Rep 105f; cf C Tomuschat, ‗Art. 36‘
Comm Statute (2nd edn 2012) MN 96 and J Crawford, ‗The Legal Effect of
Automatic Reservations to the Jurisdiction of the International Court of Justice‘ (1979)

50 BYIL 63–86 .
169
See Interhandel (Switzerland v United States of America) [1959] ICJ Rep 6, 23; S
Torrez-Bernárdez, ‗La reciprocidad en el ―sistema de jurisdicción obligatoria‖
establecido en el artículo 36, párrafo 2, del Estatuto de la Corte Internacional de
Justicia‘ [1988] Cursos de Derecho Internacional y Relaciones Internacionales de

Vitoria-Gasteiz 317–438 ; E Brown Weiss, ‗Reciprocity and the Optional Clause‘ in

LF Damrosch (ed), The International Court of Justice at a Crossroads (Transnational

Publishers 1987) 82–105 ; V Lamm, ‗Reciprocity and the Compulsory Jurisdiction of

the International Court of Justice‘ (2003) 44 Acta Jur Acad Sci Hung 45–66 .
170
Time limits concerning revocation or amendment of declarations are, however, not
within the principle of reciprocity: Nicaragua (Nicaragua v United States of
America) [1984] ICJ Rep 392, 418.
171
Aegean Sea Continental Shelf (Greece v Turkey) (Judgment) [1978] ICJ Rep 3, 17,
20; cf also J G Merills, ‗Does the optional clause still matter?‘ in KH Kaikobad and M

Bohlander (eds), International Law and Power (Nijhoff 2009) 431–54 .

172
Certain Criminal Proceedings in France (Republic of the Congo v France), the cases
was removed from the list at the request of the Republic of Congo [2010] ICJ
<http://www.icj-cij.org/docket/files/129/16266.pdf> accessed 12 June 2012 and Certain
Questions of Mutual Assistance in Criminal Matters (Djibouti v France)[2008] ICJ Rep
176.
173
L Boisson de Chazournes, ‗The Principle of Compétence de la Compétence in
International Adjudication and Its role in an Era of Multiplication of Courts and Tribunals‘
in MH Arsanjani, J Katz Cogan, RD Sloane, and S Weiessner(eds), Looking to the
Future: Essays on International Law in Honor of W. Michael Reisman(Brill 2011) 1027–

64 .
174
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v Serbia and Montenegro) [2007] ICJ Rep 43f.

175
CF Amerasinghe, ‗The Bosnia Genocide Case‘ (2008) 21 Leiden J Intl L 411 ;E
Lagrange, ‗La cohérence de la chose jugée (L‘Affaire du Génocide devant la CIJ)‘

(2007) 53 AFDI 1 ; O Corten, ‗L‘arrêt rendu par la CIJ dans l‘Affaire du Crime du
Génocide (Bosnie-Herzégovine c Serbie: Vers un assouplissement des conditions
permettant d‘engager la responsabilité d‘un État pour génocide?)‘ (2007) 53 AFDI

249 .
176
cf Oellers-Frahm on Art. 94 MN 4; Nicaragua (Nicaragua v United States of
America) [1984] ICJ Rep 392.
177
Fisheries Jurisdiction (Spain v Canada) [1998] ICJ Rep 456; Case concerning
Legality of Use of Force (Yugoslavia v Belgium [and nine other NATO-
States]) (Provisional Measures) [1999] ICJ Rep 124, 140, paras 47f; Aerial Incident of
August 10 August 1999 (Pakistan v India) [2000] ICJ Rep 12, 33, para 53; Application of
the International Convention on the Elimination of all Forms of Racial Discrimination
(Georgia v Russia) [2011] ICJ para 186 <http://www.icj-
cij.org/docket/files/140/16398.pdf> accessed 12 June 2012.
178
Fisheries Jurisdiction (United Kingdom v Iceland) [1974] ICJ Rep 34; Fisheries
Jurisdiction (Federal Republic of Germany v Iceland) [1974] ICJ Rep 205; United States
Diplomatic and Consular Staff in Tehran (United States of America v Iran) [1980] ICJ
Rep 44; Nicaragua (Nicaragua v United States of America)(Jurisdiction and
Admissibility) [1984] ICJ Rep 393; Border and Transborder Armed Actions (Nicaragua v
Honduras) [1988] ICJ Rep 69, 91, paras 52–54; see also C Tomuschat, ‗Article 36‘

Comm Statute (2nd edn 2012) MN 14–15 .

179
Iceland in Fisheries Jurisdiction (United Kingdom v Iceland) [1974] ICJ Rep 3, 175;
Iran in Diplomatic and Consular Staff (United States of America v Iran) (Judgment)
[1980] ICJ Rep 3; the United States in Nicaragua (Nicaragua v United States of
America) (Jurisdiction and Admissibility) [1984] ICJ Rep 392; France in Nuclear Tests
(Australia v France) [1974] ICJ Rep 253, 272, 457, 478; Turkey in Aegean Sea
Continental Shelf (Greece v Turkey) [1978] ICJ Rep 3. In the last two cases, no decision
on the merits was made, because the ICJ denied its jurisdiction with regard to Turkey,
and it found in the nuclear test cases that the claims of Australia and New Zealand no
longer had any object, and that the ICJ was therefore not called upon to give a decision.
180
Nicaragua (Nicaragua v United States of America) (Jurisdiction and Admissibility)
[1984] ICJ Rep 436; Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Preliminary Objections)
[1996] ICJ Rep 595, 621.
181
Nicaragua (Nicaragua v United States of America) (Jurisdiction and Admissibility)
[1984] ICJ Rep 436.
182
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v Serbia and Montenegro) [2007] ICJ Rep 43; Case
Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo v Uganda) [2005] ICJ Reports 168; Case Concerning Legality of Use of Force
(Yugoslavia v Belgium and nine other NATO States) [2004] ICJ Rep 279; Case
Concerning Oil Platforms (Islamic Republic of Iran v United States of America) [2003]
ICJ Rep 161.
183
Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom of
Great Britain and Northern Ireland and United States of America) (Judgment) [1954] ICJ
Rep19, 32; Certain Phosphate Lands in Nauru (Nauru v Australia) (Judgment of 26
June 1992: Preliminary Objections) [1992] ICJ Rep (Dissenting Opinion of Judges
Jennings, Ago, and Schwebel who denied the ICJ‘s jurisdiction because the legal
interest of New Zealand and the United Kingdom formed the ‗very subject matter‘ of any
decision in the case, 240, 301, 302, 326, 329, 328–43); East Timor (Portugal v
Australia) (Judgment) [1995] ICJ Rep 90, 100–05, where Portugal argued inter alia that
the rights breached were rights erga omnes and as such permitted Portugal to sue
Australia individually, regardless of whether or not another State had conducted itself in
a similarly unlawful manner; see also separate and dissenting opinions; cf also CM

Chinkin, Third Parties in International Law (Clarendon Press 1993) .

184
For details cf K Oellers-Frahm, ‗Article 96‘ Comm Statute (2nd edn 2012)

and JA Frowein and K Oellers-Frahm, ‗Article 65‘ Comm Statute (2nd edn 2012) .

185
A Pellet, ‗Article 38‘ Comm Statute (2nd edn 2012) .

186
A Pellet, ‗Article 38‘ Comm Statute (2nd edn 2012) MN 3 .
187
eg Vienna Convention on the Law of Treaties (1969), Vienna Convention on
Diplomatic and Consular Relations (1961/63); Vienna Convention on Succession of
States in respect of Treaties (1978).
188
eg UN Covenant on Civil and Political Rights; UN Covenant on Economic, Social and
Cultural Rights; European Convention on Human Rights, but also Geneva Conventions
on the Law of the Sea of 1958 and 1982 as well as the Geneva Red Cross Conventions
on international humanitarian law; see for details Pellet, ‗Article 38‘ Comm Statute (2nd

edn 2012) MN 288–294 .

189
H Mosler, ‗General Principles of Law‘ EPIL II (1995) 511–27 ; A Pellet, ‗Article

38‘ Comm Statute (2nd edn 2012) MN 250–269 ; G Gaja, ‗General Principles of
Law‘ MPEPIL (online edn).
190
cf Oellers-Frahm (n 46) 69–98.
191
Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14f, 93f;
critical analyses in the Dissenting Opinions appended to the judgment. For the
relationship between ius cogens and treaties, see Arts 53, 64 and 71 of the Vienna
Convention on the Law of Treaties.

192
Pellet, ‗Article 38‘ Comm Statute (2nd edn 2012) MN 304f .
193
Continental Shelf (Tunisia v Libyan Arab Jamahiriya) [1982] ICJ Rep 18, 60.
194
ICJ Acts and Documents 6 (2007).
195
Rosenne (n 2) MN 77; R Kolb, ‗General Principles of Procedural Law‘ Comm Statute

(2nd edn 2012) MN 9–21 .

196
MG Kohen, ‗Article 39‘ Comm Statute (2nd edn 2012) MN 36f .

197
S Yee, ‗Article 40‘ Comm Statute (2nd edn 2012) MN 17f .

198
S Talmon, ‗Article 43‘ Comm Statute (2nd edn 2012) MN 40–43 ; C Walter,

‗Article 44‘ Comm Statute (2nd edn 2012) MN 4–5 .

199
Practice Direction 1. Practice Directions were introduced by the Court in 2001 for the
use of States appearing before the Court; MN 30.
200
Practice Directions 2, 3 and 6; cf MN 30.
201
H von Mangoldt and A Zimmermann, ‗Article 53‘ Comm Statute (2nd edn 2012) MN

51f .
202
For a discussion of non-appearance, see HWA Thirlway, Non-Appearance before

the ICJ (CUP 1985) ; H von Mangoldt, ‗Versäumnisverfahren in der internationalen

(Schieds-) Gerichtsbarkeit und souveräne Gleichheit‘ in R Bernhardt and others
(eds), Völkerrecht als Rechtsordnung, internationale Gerichtsbarkeit, Menschenrechte:

Festschrift für Hermann Mosler (Springer 1983) 503 ; JB Elkind, ‗The Duty to

Appear before the International Court of Justice‘ (1988) 37 ICLQ 674–81 ; JI

Charney, ‗Disputes Implicating the Institutional Credibility of the Court: Problems of
Non-Appearance, Non-Participation, and Non-Performance‘ in LF Damrosch (ed), The

International Court of Justice at a Crossroads (Transnational Publishers 1987) 288f

; JB Elkind, ‗Non-appearance Before the International Court‘ in RP Dhokalia and RS
Pathak (eds), International Court in Transition: Essays in Memory of Judge Nagendra

Singh (Nijhoff 1995) 175–97 ; SA Alexandrov, ‗Non-Appearance before the

Interantional Court of Justice‘ (1995) 33 Colum J of Transntl L 41–72 .

203
cf K Oellers-Frahm, ‗Article 94‘ MN 4–16 and C Brown, ‗Article 59‘ Comm Statute

(2nd edn 2012) ; cf also K Oellers-Frahm, ‗Souveräne Gleichheit der Staaten in der
internationalen gerichtlichen Streitbeilegung? Überlegungen zu Art. 94 Abs. 2 und Art.
27 UN-Charta‘ in JA Frowein and others (eds), Verhandeln für den Frieden—

Negotiating for Peace, Liber Amicorum Tono Eitel (Springer 2003) 169–91 .
204
Practice Direction 5; cf MN 30.
205
cf Application of the International Convention on the Elimination of All Forms of
Racial Discrimination (Georgia v Russian Federation) [2011] ICJ Rep paras 116–41
<http://www.icj-cij.org/docket/files/140/16398.pdf> accessed 12 June 2012.
206
Certain Property (Liechtenstein v Germany) [2005] ICJ Rep 6, 18–19, paras 24–26.
207
Nicaragua (Nicaragua v United States of America) (Jurisdiction and Admissibility)
[1984] ICJ Rep 392, 429–41; Border and Transborder Armed Actions (Nicaragua v
Honduras) (Jurisdiction and Admissibility) [1988] ICJ Rep 69, 90–106. The critical date
for determining the admissibility of an application and the jurisdiction of the ICJ is the
date on which it is filed (ibid, 95; Lockerbie (Preliminary Objections) [1998] ICJ Rep 23–
24, 128–29); Certain Phosphate Lands (Nauru v Australia) [1992] ICJ Rep
240; Genocide (Bosnia and Herzegovina v Yugoslavia) [1996] ICJ Rep 595.
208
Maritime Delimitation and Territorial Questions between Qatar and Bahrein (Qatar v
Bahrein) (Jurisdiction and Admissibility) [1994] ICJ Rep 112; Maritime Delimitation
(Qatar v Bahrein) (Jurisdiction and Admissibility) [1995] ICJ Rep 6.

209
cf S Talmon, ‗Article 43‘ Comm Statute (2nd edn 2012) MN 134f .
210
Fisheries Jurisdiction (Spain v Canada) [1998] ICJ Rep 432.
211
[2000] ICJ Rep 12.
212
[2004] ICJ Rep 279.
213
[2005] ICJ Rep 6.
214
[2006] ICJ Rep 6.
215
Aerial Incident of 3 July 1988 (Islamic Republic of Iran v United States of
America) [1996] ICJ Rep 803ff, Certain Phosphate Lands (Nauru v Australia) [1992] ICJ
Rep 240ff; Maritime Delimitation between Guinea-Bissau and Senegal (Guinea-Bissau v
Senegal) [1995] ICJ Rep 423; cf G Wegen, ‗Discontinuance and Withdrawal‘ Comm

Statute (2nd edn 2012) ; S Talmon, ‗Article 43‘ Comm Statute (2nd edn 2012) MN

134f .
216
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v Serbia and Montenegro) [2007] ICJ Rep 43, in
particular paras 132ff, MN 96.

217
K Oellers-Frahm, ‗Article 41‘ Comm Statute (2nd edn 2012) ; S Rosenne, The

Law and Practice of the International Court, vol 3 (4th edn, Nijhoff 2006) 1375–421
and S Rosenne, Provisional Measures in International Law: The International Court of

Justice and the International Tribunal for the Law of the Sea(OUP 2005) .
218
For a list of decisions on requests for provisional measures cf Oellers-Frahm on Art.
41 Comm Statute (2nd edn 2012), Annex; if the lack of jurisdiction is absolutely manifest
at the stage of provisional measures the Court may even order the removal of the case
from the General List, which has occurred up until now only in two (Spain and United
States) of the ten Legality of Use of Force cases [1999] ICJ Rep 773, paras 35 and 925,
para 29.

219
K Oellers-Frahm, ‗Article 41‘ Comm Statute (2nd edn 2012) MN 87–89 ; TO
Elias, ‗The International Court of Justice and the Indication of Provisional Measures of

Protection‘ in United Nations Gilberto Amado Memorial Lecture (1978) 1–15 ;E

Hambro, ‗The Binding Character of the Provisional Measures of Protection Indicated by
the ICJ‘ in W Schätzel and HJ Schlochauer (eds), Festschrift für Hans

Wehberg (Klostermann 1956) 152–71 ; Collins, 216–20; R Bernhardt, Interim

Measures Indicated by International Courts (Springer 1994) ; L Collins, ‗Provisional

and Protective Measures in International Litigation‘ (1992) 234 Rec des Cours 3, 9–

138 ; S Heselhaus, ‗Die Entscheidungen des IGH über den Erlaß vorsorglicher
Maßnahmen in den Fällen Legality of Use of Force vom 2. Juni 1999‘ (2000) 38 AVR

328–75 .
220
Vienna Convention on Consular Relations (Paraguay v United States of
America) (Provisional Measures) [1998] ICJ Rep 248; Vienna Convention on Consular
Relations (Germany v United States of America)(Provisional Measures) [1999] ICJ Rep
9; cf also K Oellers-Frahm ‗Pacta sunt servanda—Gilt das auch für die
USA?/Überlegungen anläßlich der einstweiligen Anordnungen des IGH im Breard- und

im LaGrand-Fall‘ (1999) 26 EuGRZ 437 ; AM Slaughter, ‗Agora: Breard‘ (1998) 92

AJIL 666f .
221
LaGrand Case (Germany v United States of America) (Judgment) [2001] ICJ Rep
466; see also K Oellers-Frahm, ‗Die Entscheidung des IGH im Fall LaGrand—Eine
Stärkung der internationalen Gerichtsbarkeit und der Rolle des Individuums im

Völkerrecht‘ (2001) 28 EuGRZ 265f .

222
cf C Chinkin, ‗Article 62‘ Comm Statute (2nd edn 2012) ; cf Rosenne (n 217)
1439–505.

223
cf C Chinkin, ‗Article 63‘ Comm Statute (2nd edn 2012) .
224
Continental Shelf (Tunisia v Libyan Arab Jamahiriya) (Judgment: Application by
Malta for Permission to Intervene) [1981] ICJ Rep 3, 20; Continental Shelf (Libyan Arab
Jamahiriya v Malta) (Judgment: Application by Italy for Permission to Intervene) [1984]
ICJ Rep 3, 28.
225
Land, Island and Maritime Frontier Dispute (El Salvador v Honduras) (Order of 22
February 1990: Application by Nicaragua for Permission to Intervene) [1990] ICJ Rep
3; A Zimmermann, ‗Bemerkungen zum Verhältnis von ad hoc-Kammern des

Internationalen Gerichtshofes und Intervention‘ (1990) 50 ZaöRV 646f .

226
Land, Island and Maritime Frontier Dispute (El Salvador v Honduras) (Judgment:
Application by Nicaragua for Permission to Intervene) [1990] ICJ Rep 92f; K Oellers-
Frahm, ‗Überlegungen anläßlich der Zulassung der Intervention Nicaraguas im Streit

zwischen El Salvador und Honduras‘ (1990) 50 ZaöRV 795f ; MG Kohen, ‗La

requête à fin d‘intervention du Nicaragua dans l‘affaire du différend frontalier et

terrestre, insulaire et maritime (El Salvador v Honduras)‘ (1990) 36 AFDI 341–67

; DW Greig, ‗Third Party Rights and Intervention before the ICJ‘ (1992) 32 Virginia J Intl

L 287–376 ; BC Nirmal, ‗Third-party Intervention Before the International Court of

Justice‘ in Dhokalia (n 202) 198–235; R Bernhardt, ‗Judicial and Arbitral Settlement of
International Disputes Involving More than Two States‘ in Yearbook of the Institute of
International Law 68 (1998) pt I, 60f; S Rosenne, Intervention in the International Court

of Justice(Nijhoff 1993) ; S Torrez Bernárdez, ‗L‘intervention dans la procédure de la

Cour internationale de Justice‘ (1995) 256 Rec des Cours 193–458 .

227
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v
Nigeria) (Order of 21 October 1999: Application to Intervene) [1999] ICJ Rep 1029.
228
cf also the most recent cases, where, although the intervention was not granted, this
principle has been reaffirmed: Case concerning Sovereignty over Pulau Litigan and
Pulau Sipadan (Indonesia/Malaysia)(Judgment: Application by the Philippines for
Permission to Intervene) [2001] ICJ Rep 575, paras 33–36; Territorial and Maritime
Dispute (Nicaragua v Colombia) (Judgment: Request for Intervention by Costa Rica)
[2011] ICJ Rep paras 37–43; also Jurisdictional immunities (Germany v Italy) Order:
Applications by the Hellenic Republic for Permission to Intervene) [2011]
<http://www.icj-cij.org/docket/files/143/16556.pdf> accessed 4 August 2012.
229
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Order: Counter-Claims)
[1997] ICJ Rep 243; the claim was withdrawn by Yugoslavia on 10 September 2001,
[2001] ICJ Rep 572; Oil Platforms (Islamic Republic of Iran v United States of
America) (Order: Counter-Claim) [1998] ICJ Rep 190; Land and Maritime Boundary
between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea
intervening) (Order: Counter-Claims) [1999] ICJ Rep 983; Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), where
Serbia raised counter-claims in its Counter-Memorial presented on 4 January 2010. As
Croatia did not react to the counter-claims the Court, by an Order of 18 February 2010,
postponed its decision on the counter-claims. cf F Salerno, ‗La demande
reconventionnelle dans la procédure de la Cour Internationale de Justice‘ (1999) 103

RGDIP 328–78 ; H Thirlway, ‗Counterclaims before the International Court of

Justice: the Genocide Convention and the Oil Platform Decisions‘ (1999) 12 Leiden J

Intl L 197–229 ; O Lopes Pegna, ‗Counter-claim and Obligations Erga Omnes

Before the International Court of Justice‘ (1998) 9 EJIL 723–36 . On the basis of this
experience, the ICJ amended Art. 80 of its Rules (Counterclaims) in order to clarify the
Rules in force and to adapt them to its practice as well as to expedite the proceedings;
ICJ Press Release 2001/1 <http://www.icj-
cij.org/presscom/index.php?pr=611&pt=&p1=6&p2=1> accessed 12 June 2012.
230
Jurisdictional Immunities of the State (Germany v Italy) (Order of 6 July 2010) [2010]
ICJ Rep <http://www.icj-cij.org/docket/files/143/16027.pdf> accessed 12 June 2012.

231
cf C Brown, ‗Article 59‘ Comm Statute (2nd edn 2012) and A Zimmermann and

T Thienel, ‗Article 60‘ Comm Statute (2nd edn 2012) .

232
A Anand, ‗The Role of Individual and Dissenting Opinions in International

Adjudication‘ (1965) 14 ICLQ 788–808 ; A Oraison, ‗Quelques réflexions générales

sur les opinions séparées individuelles et dissidentes des juges de la Cour
internationale de Justice‘ (1999) 24 Revue de la recherche juridique-droit prospectif

1265–92 ; see also R Hofmann and T Laubner, ‗Article 57‘ Comm Statute (2nd edn

2012) MN 16–20 .
233
Definition in: Interpretation of Judgments Nos 7 and 8 (The Chorzów Factory) PCIJ
Rep Ser A No 13, 20; for the various types of operative provisions see H Mosler,

‗Judgments of International Courts and Tribunals‘ EPIL III (1997) 31–38 .

234
Indeed, the Court stated in the Haya della Torre case (Colombia v Peru) [1951] ICJ
Rep 71, 82, that its earlier finding of the illegality of a grant of asylum by Colombia in
the Colombian-Peruvian Asylum case (Colombia v Peru) [1950] ICJ Rep 226ff. ‗entails a
legal consequence, namely that of putting an end to an illegal situation: the Government
of Colombia which had granted the asylum irregularly is bound to terminate it‘. Thus,
even a purely declaratory judgment may impose certain specific obligations on the
parties.
235
Territorial Dispute (Libya Arab Jamahiriya v Chad) [1994] ICJ Rep 5; Land and
Maritime Boundary between Cameroons and Nigeria (Cameroon v Nigeria) [2002] ICJ
Rep 303, 451–52, paras 314 and 315.
236
Application for Revision and Interpretation of the Judgment of February 24, 1982 in
the Case Concerning the Continental Shelf (Tunisia v Libyan Arab Jamahiriya) [1995]
ICJ Rep 192; Request for Interpretation of the Judgment of 11 June 1998 in the case
concerning the Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v Nigeria) (Preliminary Objections) [1999] ICJ Rep 31; in this case, the
Court found that a judgment on preliminary objections may also form the object of a
request for interpretation; Request for Interpretation of the Judgment of 31 March 2004
in the Case Concerning Avena and Other Mexican Nationals (Mexico v United States of
America) [2009] ICJ Rep 3.
237
[1962] ICJ Rep 6.
238
ICJ Press Release 2011/14 <http://www.icj-cij.org/docket/files/151/16480.pdf>
accessed 12 June 2012; see also A Zimmermann and T Thienel, ‗Article 60‘ Comm

Statute (2nd edn 2012) MN 50–52 .

239
Application for Revision and Interpretation of the Judgment of Feb. 24, 1982 in the
Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) [1985] ICJ
Rep 192; Application for Revision of the Judgment of 11 July 1996 in the Case
Concerning the Application of the Genocide Convention (Bosnia and Herzegovina v
Yugoslavia) [2003] ICJ Rep 7; Application for Revision of the Judgment of 11
September 1992 in the Case Concerning the Land, Island and Maritime Dispute (El
Salvador v Honduras: Nicaragua Intervening) [2003] ICJ Rep 392; cf L Torrez-
Bernárdez, ‗A propos de l‘interprétation et de la révision des arrêts de la Cour
internationale de Justice‘ in Università di Genova (ed), Le droit international à l’heure de

sa codification: Etudes en l’honneur de Roberto Ago (Giuffrè 1987) 443–96 .

240
In Application for Revision of the Judgment of 11 September 1992 in the case
Concerning the Land, Island and Maritime Dispute (El Salvador v Honduras) the
application for revision was brought to Court one day before the expiry of the ten-year
time limit: [2002] ICJ Rep 618 and [2003] ICJ Rep 392.

241
Zimmermann and Geiss, ‗Article 61‘ Comm Statute (2nd edn 2012) MN 36f .
242
For reasons of reliability reference is made to the latest official data contained in the
ICJ Yearbook 2007–08 10; see the Survey annexed thereto at 10–16.
243
R Higgins, ‗The International Court of Justice and Africa‘ in Università di Genova
(ed), Le droit international à l‘heure de sa codification: Etudes en l‘honneur de Roberto

Ago (Guiffre 1987) 343–69 .

244
ICJ Yearbook 2007–08, 30.
245
Rosenne (n 2) MN 106–109.
246
cf eg the Advisory Opinion concerning the Unilateral Declaration of Independence of
Kosovo; cf in this context the analysis of K Oellers-Frahm, ‗Problematic Question or
Problematic Answer? Observations on the Advisory Opinion of the International Court of
Justice concerning the Unilateral Declaration of Independence of Kosovo‘ (2011) 53

GYIL 793–830 ; P Hilpold, ‗The ICJ Advisory Opinion on Kosovo: different

perspectives of a delicate question‘ available at <http://ssm.com.abstract=1734443>
accessed 12 June 2012; P Hilpold, Das Kosovo-Gutachten des IGH vom 22. Juli

2012 (Nijhoff 2012) ; MG Kohen, ‗The Kosovo Advisory Opinion and UNSCR 1244

(1999)‘ [2011] 24 Leiden J Intl L 109–26 ; A Orakhelashvili, ‗The International Court

of Justice‘s Advisory Opinion on the UDI in respect of Kosovo‘ [2011] 15 Max Planck YB

UN L 65–104 .
The Secretariat

Introduction
1 Art. 97 defines the Secretary-General as ‗chief administrative officer‘ of the United
Nations Organization, a capacity in which he or she serves the SC, the GA, and
ECOSOC, as well as performing ‗such other functions as are entrusted to him by these
organs‘.1 At the same time, the SG is granted significant institutional and personal
independence: the Secretariat he or she leads is itself a principal organ of the UN;2 the
SG and the staff serve as international officials responsible only to the
Organization;3 and member States undertake ‗to respect the exclusively international
character of the responsibilities of the SG and the staff and not to seek to influence
them in the discharge of their responsibilities‘.4
2 In practice, then, the SG and the Secretariat are set up to play two distinct roles. One
is as a service staff to facilitate the effective functioning of the UN as a continuously
operating organization. The other role is to administer the Organization in such a way as
to advance its stated goals—which, at any particular moment, may or may not coincide
with the interests of any particular member.
3 The eight Secretaries-General who have served are:
 • Trygve Lie (Norway) 1946–52
 • Dag Hammarskjöld (Sweden) 1953–61
 • U Thant (Burma) 1961–71
 • Kurt Waldheim (Austria) 1972–81
 • Javier Pérez de Cuéllar (Peru) 1982–91
 • Boutros Boutros-Ghali (Egypt) 1992–96
 • Kofi Annan (Ghana) 1997–2006
 • Ban Ki-moon (South Korea) 2007–
A. The Structure of the Secretariat
I. Status as a Principal Organ
4 The establishment of the Secretariat as a principal organ of the UN appears at first
blush to be a departure from the Covenant of the League of Nations. That document
provided that the actions of the League were to be carried out ‗through the
instrumentality of an Assembly and of a Council, with a permanent Secretariat‘. 5 In
practice, however, the functions of the Secretariat of the League went beyond a
supporting role and took on a growing range of political functions in addition to its
administrative responsibilities.6 This departure from the classic structure of international
organizations, which delegated little or no responsibility outside the principal organ
composed of member State representatives, was made complete in the UN Charter—
most obviously in the unusual degree of discretion given to the SG in Art. 99.
(p. 1994) 5 It is noteworthy that the Secretariat, rather than the SG, is determined to be
the principal organ. Though there have been occasional arguments that the SG is the
true principal organ,7 this is contradicted by the clear language of Art. 97. In addition, the
two institutions are not identical: the Secretariat is defined as comprising the SG, rather
than as his or her support office. Nevertheless, the responsibilities accorded to the SG
appear to exceed those of the Secretariat: he or she is appointed Chief Administrative
Officer of the Organization as a whole, rather than merely as administrative head of the
Secretariat. In practice, this distinction is moot as the SG speaks as the voice of the
Secretariat.8
II. Organization
6 Though the Preparatory Commission considered establishing discrete Secretariats
attached to four principal organs—the GA, the SC, ECOSOC, and the TC—the risk of
divided loyalties, rivalry, and overlapping spheres of responsibility led to the decision in
favour of a centralized Secretariat at the disposal of these other principal organs. 9
7 The Secretariat is organized into departments headed by Under-Secretaries-General
(USGs) and Assistant Secretaries-General (ASGs) appointed by the SG. The precise
nature of this organization has varied over time, in response to the various challenges
confronted by the UN in the course of its history. A prominent example was the creation
of the Departments of Peacekeeping Operations and Humanitarian Affairs in 1992,
reflecting the expansion of such activities in the early 1990s.10 More recently the
creation of a Peacebuilding Support Office11 and a Rule of Law Unit12 reflected the
acceptance of UN activities in areas once regarded as deeply controversial.
8 The present Secretariat has some 44,000 staff members in offices around the world.
Its headquarters are in New York, but it maintains a significant presence in Addis
Ababa, Bangkok, Beirut, Geneva, Nairobi, Santiago, and Vienna. The principal
organizational divisions are:
 Executive Office of the Secretary-General (EOSG)
 Office of Internal Oversight Services (OIOS)
 Office of Legal Affairs (OLA)
 Department of Political Affairs (DPA)
 Office for Disarmament Affairs (ODA)
 Department of Peacekeeping Operations (DPKO)
 Department of Field Support (DFS)
 Office for the Coordination of Humanitarian Affairs (OCHA)
 Department of Economic and Social Affairs (DESA)
 Department for General Assembly and Conference Management (DGACM)(p.
1995)
 Department of Public Information (DPI)
 Department of Safety and Security (DSS)
  Department of Management (DM)
III. Functions
9 Though the Charter assigns certain duties specifically to the SG, it is spurious to
suggest that the Secretariat has functions independent of the SG. To be sure, the SG
him- or herself cannot carry out all the administrative functions required by the
Organization. Nevertheless, in the support services provided to the various other UN
organs the members of the Secretariat continue to operate—at least in theory—under
the direction of the SG. This interpretation is supported by Art. 98, which provides that it
is the SG who is to act ‗in that capacity in all meetings‘ of the GA, the SC, ECOSOC,
and the TC.
IV. Deputy Secretary-General
10 Since 1998, a Deputy Secretary-General has been appointed to assist in the range
of responsibilities.13Unlike the SG, the job description of the Deputy was elaborated in
some detail: to assist in leading and managing the operations of the Secretariat; to
serve as acting SG when the SG is away from headquarters; to ensure intersectoral and
inter-institutional coherence of activities and programmes that cross functional sectors;
to assist with public awareness and contact with member States; to represent the SG at
conferences and functions; to oversee reform efforts; and to lead certain efforts in
development financing.14
The Deputy Secretary-General is appointed by the SG for a term not to exceed the
sitting SG‘s own term.15
11 In 2005, the High-level Panel on Threats, Challenges and Change proposed the
creation of a second Deputy Secretary-General with responsibility for peace and
security issues.16 This received little support and was dropped from the reform
proposals.17
B. Appointment of the Secretary-General
I. Appointment
12 The Charter provides that the SG shall be appointed by the GA upon the
recommendation of the SC. For most of the history of the UN, the Council has only
recommended one person and the GA has endorsed that person. In practice, then, the
decision is made by the SC.18(p. 1996)
Though the Dumbarton Oaks Proposals used the term ‗elected‘, 19 at the San Francisco
Conference the term ‗appointed‘ was preferred in order to emphasize the administrative
character of the position.20 These terminological issues masked the intensely political
nature of the appointment process, a process in the end dominated by the permanent
members of the SC.
13 The language of recommendation suggests the possibility of more than one
candidate being nominated by the Council. At the San Francisco Conference, Uruguay
proposed such a model in which three candidates might be recommended to the
GA.21 The proposal was defeated and the GA formalized its reduced role in Res 11 (I)
(1946), which stated that it ‗would be desirable for the Security Council to proffer one
candidate only for the consideration of the General Assembly, and for debate on the
nomination in the General Assembly to be avoided‘.22
1. Recommendation of the Security Council
14 GA Res 11 (I) (1946) provided that nomination and appointment of the SG should
be discussed in private meetings, with votes in either the SC or GA to be taken by
secret ballot.23 This is reflected in the Provisional Rules of Procedure of the SC, Rule 48
of which states that recommendations to the GA concerning the appointment of the SG
shall be discussed and decided at a private meeting. Beginning in 1981, the Council
adopted a practice of using ‗straw polls‘ in order to indicate the level of support for a
candidate without requiring a full meeting and formal vote in the Council chamber.24
The recommendation is transmitted as a communiqué through the incumbent SG.25 In
the first communiqués only the name of the recommended candidate was
released.26 Since 1953, the names of candidates considered, the name(s) of the Council
member(s) who proposed them, and the results of voting have been disclosed.
15 The exception to this practice, arguably, was the reappointment of Trygve Lie during
the deadlock over the Korean War. His initial five-year term was to end on 2 February
1951 and the Council began private discussions on a possible second term in October
1950.27 It was unable to reach an agreement and the President of the SC advised the
President of the GA by letter that a recommendation could not be submitted. 28 The
matter was discussed in the GA‘s fifth session, during which a draft resolution submitted
by mostly Western States proposed that the GA should extend Lie‘s term in order to
ensure the uninterrupted exercised of the functions of the office, in spite of the lack of
agreement in the SC.29 The Soviet Union objected but was unable to find (p.
1997) majority support; the GA adopted Res 492 (V) (1950) by fourty-six votes to five
with eight abstentions, extending Lie‘s term by three years.30
16 The extension of Lie‘s office was unusual but did not appear to violate the Charter
for the following reasons. It was not an ‗appointment‘, which would have been ultra vires
in the absence of a recommendation by the Council. Indeed, Lie had already been
recommended by the Council with no indication of a time limitation on that
recommendation. The extension was predicated on the fact that Lie was currently
serving as SG, and it is noteworthy that the vote was not by secret ballot, even though
the President of the GA had proposed this at Lie‘s suggestion. The Rules of Procedure
of the GA provide that elections are to be held by secret ballot. 31 Though the resolution
in question bore some resemblance to an election, a rule of procedure can only be
suspended by unanimous approval of the GA and Chile had objected. 32
17 In any event, it is unlikely that the circumstances of Lie‘s appointment could be
repeated, as from U Thant‘s appointment onward all recommendations from the SC
have specified the period of time for which an appointment was to be valid. 33 Thus,
when the Council—due to a veto by the United States—could not agree on a second
term for Boutros Boutros-Ghali, there does not appear to have been any suggestion that
the GA could have extended his term.
 2. Appointment by the General Assembly
18 Rule 141 of the Rules of Procedure of the GA provides that the GA should carry out
its consideration of the SC recommendation and its vote by means of a secret ballot in a
private meeting.34 When considering the appointment of the first SG, the President of
the GA drew attention to this provision, but proposed holding the secret ballot in
a public meeting. This met with general approval,35 and all subsequent appointments
have been made in public meetings without further reference to Rule 141. Indeed, the
only occasion on which the GA has actually voted was the atypical situation of the
extension of Trygve Lie‘s appointment, discussed earlier.36 Typically, the SC‘s
recommended candidate is appointed by acclamation.
19 Though in practice the GA has been passive in its acceptance of SC recommended
candidates, the seeds of a larger role for the Assembly have been planted.
GA Res 51/241 (1997) approved a report by the Open-Ended High-level Working Group
on the Strengthening of the United Nations System, stating that the GA would ‗make full
use of‘ the power of appointment in the UN Charter.37 The resolution also provided that
‗[w]ithout prejudice to the prerogatives of the Security Council, the President of the
General Assembly may consult with Member States to identify potential (p.
1998) candidates endorsed by Member States and, upon informing all Member States
of the results, may forward those results to the Security Council‘.38
20 In 2006, GA Res 60/286 (2006) encouraged ‗formal presentation of candidatures for
the position of Secretary-General in a manner that allows sufficient time for interaction
with Member States, and request[ed] candidates to present their views to all States
members of the General Assembly‘.39
21 Nevertheless, and despite suggestions from the Non-Aligned Movement that it might
push for a GA vote on multiple candidates, the appointment of Ban Ki-moon in 2006
followed the previous model of closed consultations by the Council and a single
recommendation to the Assembly, endorsed in GA Res 61/3 (2006).
3. Qualifications
22 The qualifications and qualities of a desirable SG have never been formally stated.
Resolution 11 (I) (1946) provided that the terms of appointment should be ‗such as to
enable a man [sic] of eminence and high attainment to accept and maintain the
position‘.40 The Report of the Preparatory Commission described the range of qualities
required, including the administrative abilities necessary to ‗integrate the activity of the
whole complex of United Nations organs‘ and build ‗team spirit‘. It also highlighted the
need for ‗moral authority‘ and ‗the highest qualities of political judgement, tact and
integrity‘. Finally, it highlighted the important representative role that the SG would play:
‗the Secretary-General, more than anyone else, will stand for the United Nations as a
whole. In the eyes of the world, no less than in the eyes of his own staff, he must
embody the principles and ideals of the Charter to which the Organization seeks to give
effect.‘41
GA Res 60/286 (2006), in the context of selection of the SG, emphasized the need for
candidates to possess and display ‗commitment to the purposes and principles of the
Charter of the United Nations, extensive leadership, and administrative and diplomatic
experience‘.42
4. Regional Rotation
23 There is no guidance in the Charter concerning rotation of the position of SG. Nor
does the practice of the UN disclose a clear pattern. Of the fifteen terms served to date,
six have been served by SGs from WEOG (Lie, Hammarskjöld, Waldheim), four by
Asians (U Thant, Ban), three by members of the Africa Group (Boutros-Ghali, Annan),
and one from GRULAC (Pérez de Cuéllar).
24 First asserted by Latin American countries in the 1980s, the principle of regional
rotation was subsequently invoked by the African group during the appointment of
Boutros Boutros-Ghali. When it became clear that Boutros-Ghali would be denied a
second term, it was generally accepted that a successor should be from Africa. Until
that point, no clear principle of rotation could be discerned, but the GA resolution
adopting the report of the Open-Ended High-level Working Group on the Strengthening
of the (p. 1999) United Nations System noted that in the course of ‗the identification and
appointment of the best candidate for the post of Secretary-General, due regard shall
continue to be given to regional rotation and shall also be given to gender equality‘. 43
25 As no women have been appointed SG and only three have ever been formal
candidates,44 it is not clear what weight these relative considerations—regional rotation,
gender equality, as well as the search for the ‗best‘ candidate—will have in
future.45 During the appointment of Ban Ki-moon, there was a strong sense that the SG
should be Asian—though Eastern Europe also proposed a candidate, justified in part by
the fact that there has been no Eastern European SG.
II. Term of Office and Reappointment
26 The Charter does not regulate the term of office. At the San Francisco Conference,
the Soviet Union suggested that the SG should be elected for only two years as part of
a rotating group of five representatives of the five permanent members. The smaller
States resisted this and proposed the two-stage process of recommendation and
appointment that currently prevails. Other questions were ultimately left to be worked
out on the basis of experience.46 In accordance with the proposal of the Preparatory
Commission, GA Res 11(I) set the term at five years.47
27 Similarly, the Charter does not speak to the question of re-appointment or term
limits. GA Res 11 (I) stated that the ‗first Secretary-General shall be appointed for five
years, the appointment being open at the end of that period for a further five-year
term.‘48
28 Trygve Lie was extended by the GA for three years,49 though he announced his
intention to resign in November 1952.50 His term had in fact concluded before his
successor was appointed and from 1 February 1953 until 7 April 1953 the basis on
which he served as SG is unclear. There is no record of his appointment as acting SG,
though the fact that he continued to give speeches in the GA may be taken to imply a
tacit agreement among States that he would continue to serve until his successor was
appointed.
29 U Thant served one year as acting SG in the wake of Dag Hammarskjold‘s death in
office and then was appointed for a four-year term—the first occasion in which the SC
stated the precise date for which a recommendation would be valid. 51 Near the end of
that period, in October 1966, Thant‘s term was extended by two months until a decision
could be made on whether to grant him a second full term.52(p. 2000)
There was an attempt to extend the tenure of Kurt Waldheim for a third term, but this
was defeated by sixteen vetoes by China.53
30 Given the current SC practice of specifying dates for its recommendations, the
model of at most two five-year terms appears likely to continue for the foreseeable
future. This has been the practice from the appointment of Kurt Waldheim to the
present, with the exception of Boutros Boutros-Ghali, who served a single five-year term
after a proposal in the SC to recommend him for a second five-year term was vetoed by
the United States.
C. Functions of the Secretary-General
31 The Preparatory Commission of the UN concluded that the Charter assigned
‗explicitly or by inference‘ six groups of functions: ‗general administrative and executive
functions, technical functions, financial functions, the organization and administration of
the International Secretariat, political functions and representational functions‘.54 These
may be more usefully grouped into two broad categories: administrative and political
functions.
I. Administrative Functions
32 In his or her capacity as Chief Administrative Office of the UN, it falls to the SG to
carry out certain centralized tasks. Most prominently, the SG is tasked with supporting
the work of the other principal organs with the exception of the International Court of
Justice. This is elaborated in the commentary on Art. 98.
In addition, however, the SG must manage the Secretariat itself, including responsibility
for personnel decisions,55 preparation and oversight of the budget, and coordination of
the various activities of the Secretariat and other principal organs, with the exception of
the ICJ.
A third broad area of administrative responsibility is the documentary function of the SG,
both in the preparation and dissemination of reports created by the various parts of the
UN System as well as the important function he or she serves as the depositary for
international treaties.56
II. Political Functions
33 The political functions of the SG emanate from three sources. Firstly, Art.
98 provides that the principal organs may entrust him or her with ‗other functions‘. In
practice, these functions have frequently had political dimensions. Secondly, Art.
99 clearly grants a measure of political discretion in determining which matters ‗in his
opinion may threaten the maintenance of international peace and security‘.
(p. 2001) 34 Thirdly, and most interestingly, various secretaries-general have asserted
their ability to exercise an independent political role that clearly goes beyond the limited
scope granted by Art. 99. In 1955, for example, Dag Hammarskjöld travelled to Beijing
to negotiate for the release of captured US airmen who had served under the UN flag.
Under what came to be known as the ‗Peking formula‘, he distanced his role as SG from
the hostile resolutions of the GA.57 This precedent was invoked by Kofi Annan‘s chief of
staff to justify Annan‘s 1998 trip to Iraq in an effort to defuse tensions over weapons
inspections.58 These were unusually dramatic examples of the SG exercising what has
come to be known as the ‗good offices‘ function. Though not explicitly provided for in the
Charter, most commentators locate it within the scope of Art. 99.59
35 A related function, linked to the status of the SG as the public face of the UN has
been the role of the SG as ‗norm entrepreneur‘60—advancing principles such as the
doctrine of ‗responsibility to protect‘, espoused by Annan during his tenure and
eventually adopted by the GA,61 or targets such as the Millennium Development Goals.62

Footnotes:
1
Art. 98.
2
Art. 7 (1).
3
Art. 100 (1).
4
Art. 100 (2).
5
Covenant of the League of Nations, Art. 2.

6
FP Walters, A History of the League of Nations (Oxford 1952) ; AW Rovine, ‗The
Secretary-General in World Politics: A Historical Review‘ (1974) 9 J of Intl L and

Economics 113, 114 .

7
CH Alexandrowicz, ‗The Secretary-General of the United Nations‘ (1962) 11 ICLQ

1109, 1112 .
8
E Newman, The UN Secretary-General from the Cold War to the New Era: A Global

Peace and Security Mandate (Palgrave Macmillan 1998) 19 .

9
United Nations, First Report of the Advisory Group of Experts on Administrative,
Personnel and Budgetary Questions to the Secretary-General of the United Nations

(United Nations 1946) 4 .

10
UNGA ‗Note by the Secretary-General 46/882‘ (21 February 1992) UN Doc A/46/882.
11
UNGA Res 60/180 (20 December 2005) UN Doc A/RES/60/180 para 23.
12
UNGA/UNSC ‗Report of the Secretary-General 61/636‘ (14 December 2006) UN Doc
A/61/636–S/2006/980.
13
UNGA Res 52/12 B (19 December 1997) UN Doc A/RES/52/12 B.
14
UNGA ‗Report of the Secretary-General 51/950/Add. 1‘ (7 October 1997) UN Doc

A/51/950/Add.1 .

15
ibid, para 6 .
16
UNGA ‗Report of the High-level Panel on Threats, Challenges and Change‘ (2
December 2004) UN Doc A/59/565, paras 293–94.
17
S Chesterman, ‗Reforming the United Nations: Legitimacy, Effectiveness, and Power

After Iraq‘ (2006) 10 Singapore YB of Intl L 1, 22 .

18
The one exception to this was the 1950 re-appointment of Trygve Lie by the General
Assembly during a period of deadlock in the Council, considered below at MN 15ff.
19
The Dumbarton Oaks Proposals Chapter X(1)
<http://www.ibiblio.org/pha/policy/1944/441007a.html> accessed 18 June 2012.
20
US Department of State, The United Nations Conference on International
Organization (UNCIO) Selected Documents (US Govt. Printing Office 1946) 513–

14 .
21
RM, 856.

22
UNGA Res 11 (I) (24 January 1946) UN Doc A/RES/11 (I), para 4 (d) .

23
ibid .
24
C Keating, ‗Selecting the World‘s Diplomat‘ in S Chesterman (ed), Secretary or

General? The UN Secretary-General in World Politics (CUP 2007) 51 .

25
Rule 55 of the Provisional Rules of Procedure of the Security Council, reprinted in the
Annex to the Commentary.
26
SCOR(1) 4th mtg (29 January 1946) UN Doc S/PV.4, 44; Annex to the Commentary
SCOR(5) 509th mtg (9 October 1950) S/PV.509, 1.
27
‗The United Nations‘ (1950) UNYB 125.
28
RP V, 111.
29
RP V, 114–16.
30
UNGA Res 492 (V) (1 November 1950) UN Doc A/RES/492 (V); see RP V, 114–16,
para 63.
31
Rule 92 of the Rules of Procedure of the General Assembly, reprinted in the Annex to
the Commentary.
32
‗The United Nations‘ (1950) UNYB 129.
33
See eg UNSC Res 1715 (9 October 2006) UN Doc S/RES/1715, recommending ‗that
Mr Ban Ki-moon be appointed Secretary-General of the United Nations for a term of
office from 1 January 2007 to 31 December 2011‘.
34
Rule 141 of the Rules of Procedure of the General Assembly, reprinted in the Annex
to the Commentary.
35
GAOR(I/1) 20th Plen mtg (1 February 1946) UN Doc A/64, 2.
36
See MN 15ff.

37
UNGA Res 51/241 (22 August 1997) UN Doc A/RES/51/241, para 57 .

38
ibid, para 60 .
39
UNGA Res 60/286 (8 September 2006) UN Doc A/RES/60/286, para 20.
40
UNGA Res 11 (I) (24 January 1946) UN Doc A/RES/11 (I).
41
Report of the Preparatory Commission of the United Nations (23 December 1945), ch
VIII, s 2, paras 8–17 reproduced in Chesterman, Secretary or General? (n 24) 243.
42
UNGA Res 60/286 (8 September 2006) UN Doc A/RES/60/286, para 22.
43
UNGA Res 51/241 (22 August 1997) UN Doc A/RES/51/241, para 59. Similar
language was repeated in UNGA Res 60/286 (8 September 2006) UN Doc
A/RES/60/286, para 18.
44
Vijaya Lakshmi Pandit (India, 1953), Gro Harlem Brundtland (Norway, 1991), Vaira
Vīķe-Freiberga (Latvia, 2006).
45
C Keating, ‗Selecting the World‘s Diplomat‘ in Chesterman, Secretary or General?
(n 24) 60.
46
RM, 860.
47
Report of the Preparatory Commission, ch VIII, s 1, paras 5–7; s 2, paras 18–21;
reproduced in Chesterman, Secretary or General? (n 24) 243.
48
UNGA Res 11 (I) (24 January 1946) UN Doc A/RES/11 (I), para 3 (emphasis added).
49
UN GA Res 492 (V) (1 November 1950) UN Doc A/RES/492 (V).
50
UNSC ‗Letter dated 10 November 1952 from the Secretary-General of the United
Nations to the President of the Security Council‘ (13 November 1952) UN Doc S/2846.
51
UNSC ‗Joint Draft Resolution [on the appointment of the Secretary-General of the
United Nations]‘ (29 November 1962) UN Doc S/5212, recommending to the GA that U
Thant be appointed ‗for a term expiring 3 November 1966‘.
52
UNSC Res 227 (28 October 1966) UN Doc S/RES/227.
53
C Keating, ‗Selecting the World‘s Diplomat‘ in Chesterman (n 24) 53; ‗United Nations:
Kurt reply‘, Time Magazine (14 December 1981)
<http://www.time.com/time/magazine/article/0,9171,925104,00.html> accessed 18 June
2012.
54
Report of the Preparatory Commission, ch VIII, s 2, para 8; reproduced S
Chesterman, Secretary or General? (n 24) 243.
55
Art. 101 (1).
56
Art. 102 (1).

57
See B Urquhart, Hammarskjöld (Knopf 1972) 100–05 .
58
J Traub, ‗The Secretary-General‘s Political Space‘ in Chesterman (n 24) 185.
59
See also Chesterman on Art. 99 MN 13–15.
60
I Johnstone, ‗The Secretary-General as Norm Entrepreneur‘ in Chesterman (n 24)

123; H Koh, ‗Why Do Nations Obey International Law?‘ (1997) 106 YJIL 2599 .
61
UNGA Res 60/1 (16 September 2005) UN Doc A/RES/60/1, paras 138–39.
62
UNGA Res 55/2 (18 September 2000) UN Doc A/RES/55/2.