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Published online by Cambridge University Press: 09 March 2016
The Advisory Opinion handed down by the World Court on July 20, 1962, concerning Certain Expenses of the United Nations has become a political cause célèbre in so far as the majority judicial position in it was backed up by the Western-sponsored action, in terms of Article 19 of the United Nations Charter, to deprive the Soviet Union and France of their vote in the General Assembly. The Advisory Opinion of the World Court has, however, its own intrinsic interest in terms of juristic method and of basic Soviet and Western differences in scientific approach to law. In his dissenting, judicial opinion in that case, the then President of the Court, the Polish jurist, Judge Winiarski, formulated principles of interpretation which reveal, very dramatically, the basic doctrinal differences between Soviet bloc and Western jurists as to the nature and character of the Charter. As President Winiarski commented:
The Charter has set forth the purposes of the United Nations in very wide, and for that reason too indefinite, terms. But… it does not follow, far from it, that the Organisation is entitled to seek to achieve those purposes by no matter what means. The fact that an organ of the United Nations is seeking to achieve one of those purposes does not suffice to render its action lawful. The Charter, a multilateral treaty which was the result of prolonged and laborious negotiations, carefully created organs and determined their competence and means of action.
1 Advisory Opinion of July 20, 1962, Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), [1962] I.C.J. Rep. 151. Also reported in 56 Am. J. Int’l L., 1053 (1962). And see generally Hogg, J. F., “Peace-Keeping Costs and Charter Obligations. Implications of the International Court of Justice Decision on Certain Expenses of the United Nations,” 62 Columbia L. Rev. 1230 (1962)Google Scholar; Jennings, R.Y., “International Court of Justice, Advisory Opinion of July 20, 1962, Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter),” 11 Int’l and Comp. L.Q. 1169 (1962).Google Scholar
2 [1962] I.C.J. Rep. 151, 230.
3 Ibid., 268.
4 Ibid, 230.
5 Ibid., 232. And compare also the Separate Opinion of a majority judge, Sir Percy Spender, in the same case, as to the rôle of practice and the interpretation of the Charter: “It cannot be altered at the will of the majority of the Member States, no matter how often that will is expressed or asserted against a protesting minority and no matter how large be the majority of Member States which assert its will in this manner or how small the minority”: ibid., 196. And see Gross, Leo, “Domestic Jurisdiction, Enforcement Measures and the Congo,” [1965] Australian Yb. Int’l L. 137, 142Google Scholar. For a rather more optimistic view of the rôle of practice in the formation of norms of international law, see Lachs, M., “The International Law of Outer Space,” 113 Recueil des Cours 1, 99 (1964— III)Google Scholar. Professor Lachs views practice as “offering full evidence of a general consent (tacitus consensus) of States”; and, as to the time factor normally essential in the formation of custom, he suggests that “today time travels much faster and makes institutions mature at a much quicker speed than ever before”: ibid.
6 Semenov, V.S., “Nekotorii Problemii Ispolzovania Vooruzhenikh Sil Obedi-nennikh Natsii,” [1964-65] Sovetskii Ezhegodnik Mezhdunarodnogo Prava 33, 35.Google Scholar
7 Some of these analogies as to internal, municipal law are developed more fully in my Judicial Review in the English-Speaking World 174 et seq. (3rd ed., 1965); Comparative Federalism 21 et seq. (2nd ed., 1965).
8 South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, [1966] I.C.J. Rep. 3.
9 See, for example, the Judgment of the Court, South West Africa Cases: “The Court must now turn to certain questions of a wider character. Throughout this case it has been suggested, directly or indirectly, that humanitarian considerations are sufficient in themselves to generate legal rights and obligations, and that the Court can and should proceed accordingly. The Court does not think so. It is a court of law, and can take account of moral principles only in so far as these are given a sufficient expression in legal form. Law exists, it is said, to serve a social need; but precisely for that reason it can do so only through and within the limits of its own discipline. Otherwise, it is not a legal service that would be rendered": [1966] I.C.J. Rep. 34.
10 “It may be urged that the Court is entitled to engage in a process of ‘filling in the gaps,’ in the application of a teleological principle of interpretation, according to which instruments must be given their maximum effect in order to ensure the achievement of their underlying purposes. The Court need not here enquire into the scope of a principle the exact bearing of which is highly controversial, for it is clear that it can have no application in circumstances in which the Court would have to go beyond what can reasonably be regarded as being a process of interpretation, and would have to engage in a process of rectification or revision. Rights cannot be presumed to exist merely because it might seem desirable that they should. On a previous occasion, . . . the Court (I.C.J. Reports 1950, p. 229) said that it was its duty ‘to interpret the Treaties, not to revise them’. It continued: ‘The principle of interpretation expressed in the maxim: Ut res magis valeat quam pereat, often referred to as the rule of effectiveness, cannot justify the Court in attributing to the provisions for the settlement of disputes in the Peace Treaties a meaning which, as stated above, would be contrary to their letter and spirit. In other words, the Court cannot remedy a deficiency if, in order to do so, it has to exceed the bounds of normal judicial action” : ibid., 48.
11 Judge Winiarski joined in the Judgment of the Court, delivered by Sir Percy Spender, without separate opinion: see ibid., 8 et seq.
12 The dissent of the Soviet judge, Judge Koretsky, is however itself a highly technical opinion that does not venture into the substantive, “policy” merits of the dispute, but instead limits itself to challenging the Court majority’s conclusion (infra) that the complainants, Ethiopia and Liberia, lacked legal standing to obtain a decision in the matter. Judge Koretsky considered that this issue had already been decided in favour of the complainant states in the World Court’s judgment of December 21, 1962, (South West Africa, Preliminary Objections), [1962] I.C.J. Rep. 31g. See Dissenting Opinion of Judge Koretsky, [1966] I.C.J. Rep. 239 et seq.
13 Judgment of the Court, [1966] I.C.J. Rep. 8 et seq.
14 See, for example, the various demands for a “more equitable geographical distribution” of the World Court’s membership, so as to “help increase the confidence of states in the Court,” advanced by Afro-Asian delegates to the Mexico City special conference, held in 1964, of the U.N. Special Committee on Friendly Relations and Cooperation among States. See, in this regard, the discussion in McWhinney, “The ‘New’ Countries and the ‘New’ International Law: The United Nations’ Special Conference on Friendly Relations and Cooperation among States,” 60 Am. J. Int’l L. 1, especially at 19-20 (1966). For a spirited defence of the principle of judicial settlement, and a plea for the extension of the compulsory jurisdiction of the World Court, by an Asian jurist, see the eloquent address by Chief Justice Kisaburo Yokota of Japan, “The Compulsory Jurisdiction of the International Court of Justice,” Report of the Fifty-First Conference, International Law Association (Tokyo, 1964), 8 et seq. (1965).
15 See, for example, the various objections to the World Court decision in the South West Africa Cases, recently circulated as U.N. Documents: Bulgaria (A/6372-S/7455) ; Cote d’Ivoire (A/6371); Kenya (A/6387); Nigeria (A/6346) ; Pakistan (A/6388) ; Poland (A/6402).
16 See, for discussion of the political reaction to the World Court decision, Green, L.C., “South West Africa and the World Court,” 22 International Journal 39, 66 (1966).CrossRefGoogle Scholar
17 Dissenting Opinion of Judge Jessup, [1966] I.C.J. Rep. 323 et seq.
18 Ibid., 323.
19 Ibid., 441.
20 Ibid.
21 U.N. General Assembly Resolution 2145 (XXI), October 27, 1966.
22 U.N. Security Council Resolution 232 (1966), December 16, 1966.
23 V. Pechota, in 7 Casopis pro Mezinarodni Pravo 97 (1963), discussed in McWhinney, , “Peaceful Coexistence” and Soviet-Western International Law 106 (1964).Google Scholar
24 M. Lachs, 18 Panstwo i Pravo 207 (1963). Professor Lachs has identified the Universal Declaration of Human Rights of 1948; the Declaration of the Granting of Independence to Colonial Countries and Peoples of i960; and the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space of 1963, as General Assembly Resolutions which have performed the “important function of interpreting provisions of the Charter and of bringing them up to date, in some [cases] they have combined this with the shaping of new principles” : Lachs, “The International Law of Outer Space,” 113 Recueil des Cours i, 95-96 (1964 — III). Professor Lachs comments on the legal status and efficacy of General Assembly Resolutions: “Different and frequently conflicting views have been expressed as to their value: some reduce them to moral categories only, others see in them more than a moral obligation; still others attach to them much greater value and importance.
“It is true that — with some exceptions only — they cannot be viewed as creative of legal rights or obligations. But does this imply that they are devoid of all legal value?
“Such a sweeping conclusion seems ill-founded, as in many cases they pave the way to new principles and rules of law, which in due course take the shape of binding international instruments. They initiate the law-making process by taking us across the threshold into the realm of law. Sometimes they may even create law, imperfect as it may be”: ibid., 96-97.
25 U.N. General Assembly Resolution 1884 (XVIII), October 17, 1963.
26 U.N. General Assembly Resolution 2222 (XXI), December 19, 1966.
27 “The representatives of both the United States and the Soviet Union declared in unequivocal terms that their Governments would ‘respect’ the principles of the Declaration [of Legal Principles concerning Outer Space] …. Almost all Members of the United Nations attached to it an importance similar to that resulting from a legally binding instrument, assimilating it, as it were, to the latter.
“Thus, by expressing their will to be bound by the provisions of the document in question, they consented so to be bound, and there is no reason why they should not be held to it, for their intention seems to be clear — the question of form ceases to be of essence”: Lachs, 113 Recueil des Cours 1. 97-98 (1964 —III).
28 Judge Jessup, in his dissenting opinion in the South West Africa Cases, though accepting the condemnations of Apartheid as recorded in U.N. General Assembly Resolutions, as “proof of the pertinent contemporary international community standard,” is nevertheless at pains to dissociate himself from “the thesis that resolutions of the General Assembly have a general legislative character and by themselves create new rules of law”: [1966] I.C.J. Rep. 441. For a more general discussion of this problem, from a Western viewpoint, see SirVallat, Francis, “The General Assembly and the Security Council of the United Nations,” 29 Brit. Y.B. Int’l L. 63 (1952)Google Scholar; Vallat, , “The Competence of the United Nations General Assembly,” 97 Recueil des Cours 207 (1959)Google Scholar; Higgins, Rosalyn, The Development of International Law Through the Political Organs of the United Nations (1963)Google Scholar. More recently, see Claude, I. L. Jr., “Collective Legitimisation as a Political Function of the United Nations,” 20 Int’l Organ. 367 (1966)Google Scholar; Falk, R.A., “On the Quasi-Legislative Competence of the General Assembly,” 60 Am. J. Int’l L. 782 (1966)Google Scholar; Asamoah, O. Y., The Legal Significance of the Declarations of the General Assembly of the United Nations (1966).Google Scholar
29 Tunkin, G.I., Voprosii Teorii Mezhdunarodnogo Prava 121 et seq. (1962).Google Scholar
30 Morozov, G.I., Organizatsia Obedinennikh Natsii 208 et seq. (1962).Google Scholar
31 Yanovskin, M. V., “Sovetskaia Nauka o Iuridicheskoi Sile Resoliutsii General-noi Assamblei OON,” [1964–1965] Sovetskii Ezhegodnik Mezhdunarodnogo Prava 111, 119–20Google Scholar. And see generally Lukashuk, I.I., Istochniki Mezhdunarodnogo Prava 81 et seq. (1966).Google Scholar
32 See, generally, the author’s “Peaceful Coexistence” and Soviet-Western International Law (1964).
