STRUCTURAL, CIRCUMSTANTIAL LIMITATIONS CHALLENGE EFFECTIVENESS OF WORLD COURT, PRESIDENT OF COURT TELLS GENERAL ASSEMBLY

15 October 1996

Press Release
GA/9131

STRUCTURAL, CIRCUMSTANTIAL LIMITATIONS CHALLENGE EFFECTIVENESS OF WORLD COURT, PRESIDENT OF COURT TELLS GENERAL ASSEMBLY

19961015 Assembly Also Continues Review of Goal Implementation of Summit for Children

The ability of the International Court of Justice to take actions in service of peace suffered from certain limitations beyond its control, some of them structural, others circumstantial, said its President, Judge Mohammed Bedjaoui this morning as he introduced the Court's annual report to the General Assembly.

Describing the structural limitations, Judge Bedjaoui said international law remained both heterogeneous and fragmentary, which was a further challenge for an international court, whose work in the service of peace was entirely dependent on the application of that law. Since the subjects of international law were both creators and targets of the rules of that law, it often fell to them to interpret and apply those rules. When the Court made a decision in such cases, it was all the actors on the international stage, not merely the parties to a dispute, who were affected by that decision.

The Court President also pointed out that the Court was confronting circumstantial constraints due to grave material difficulties. Those constraints seriously imperiled the very discharge of the Court's duties at a time of greatly increased activity.

The representative of Malaysia, along with many speakers, echoed the President's concern about inadequate financial support for the Court. That situation was of particular concern at a time when States and international organizations were increasing their use of the world Court. He called upon the United Nations to ensure that the Court was given sufficient funds to continue to function as the premier judicial body of today.

Many speakers also called for efforts to strengthen the International Court of Justice, proposing, among other things, that the Secretary-General be authorized to request advisory opinions from the Court. Representatives also called for an expanded usage of the Court by the General Assembly, the Security Council and other United Nations bodies.

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The Legal Adviser to the Ministry for Foreign Affairs, Trade and Worship of Argentina also spoke, as did the representatives of Brazil, Paraguay, Guatemala (on behalf of Costa Rica, El Salvador, Honduras and Nicaragua) Algeria, Mexico, Libya, France and Uruguay.

Also this morning, the Assembly continued its consideration of the mid- decade review of progress towards the goals set at the 1990 World Summit for Children. Speakers, while praising the substantial progress which had been made to date, called for continued efforts to targets set by the Summit for the year 2000.

A member of the Australian Parliament told the Assembly this morning that efforts to increase efficiency at the United Nations must also be applied to programme activities. He questioned why it should cost the United Nations $900 to translate and produce one page of documentation while it cost only $15 to immunize a child against all major diseases.

Statements on the World Summit were also made by the representatives of Mexico, Russian Federation, and Ireland, speaking on behalf of the European Union, Bulgaria, Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania, Slovenia, Slovakia, Iceland and Liechtenstein.

The Assembly will meet again at 3 p.m. today to continue its discussion relating to the World Summit for Children and to consider granting observer status to the International Criminal Police Organization-Interpol.

Assembly Work Programme

The General Assembly met this morning to take up the report of the International Court of Justice and to continue consideration of a report of the Secretary-General relating to the implementation of the outcome of the 1990 World Summit for Children.

The Secretary-General's report on progress at mid-decade on implementation of General Assembly resolution 45/217 on the World Summit for Children (document A/51/256), which concerns implementation of the Summit's outcome, provides a regional overview and a mid-decade goal-by-goal review. It states that striking progress has been made in the control of diarrhoeal diseases, polio, guinea worm, measles death reduction, iodine deficiency disorders, as well as in access to safe drinking water and promotion of breast-feeding. (For background information on the report see Press Release GA/9130, of 14 October.)

The International Court of Justice report (document A/51/4) covers the period 1 August 1995 to 31 July 1996 and details the full composition of the Court, as well as its jurisdiction in both contentious cases and advisory proceedings. As of 31 July, the 185 States Members of the United Nations, along with Nauru and Switzerland, were parties to its Statute.

The report includes accounts on two advisory opinions offered by the International Court of Justice during the period under review. The first was a ruling on 8 July, in which the Court found that it was not able to give the advisory opinion requested of it under a 1993 resolution of the World Health Assembly of the World Health Organization (WHO). By that resolution, the WHO had requested an advisory opinion on the legality of the use by a State of nuclear weapons in armed conflict. The second advisory opinion was in response to resolution 49/75 K of the General Assembly, which requested the Court's opinion on whether the threat or use of nuclear weapons in any circumstance was permitted under international law. The Court decided unanimously that a threat or use of nuclear weapons should be compatible with the principles and rules of humanitarian law. It also unanimously stated that "there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament".

The Court has been busier than ever before, notes the report, adding that the past year was crowded and demanding. Among present difficulties the report cites a financial crisis "grave enough to be brought to the attention of the General Assembly in the annual report", which involved budgetary restrictions, staff reductions, and inadequacy of material resources.

The document also reports on the celebration of the Court's fiftieth anniversary, including a ceremonial sitting on 18 April in the presence of Queen Beatrix of the Netherlands. It states that many talks and lectures on

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the Court were given by its President, members, the Registrar and officials of the Court to improve public understanding of its work.

Report of International Court of Justice

Judge MOHAMMED BEDJAOUI, President of the International Court of Justice, in introducing the Court's report, said that the wealth of its achievement in the past 50 years and the renewal of interest shown in the Court in recent years should not cause the international community to lose sight of the constraints under which it operated. The Court had two instruments to carry out its tasks: the contentious procedure, through which it settled a dispute by handing down a judgement that was binding upon the parties; and the advisory procedure, by which it may offer a legal opinion to a legal question posed by an authorized organization. The Court was endowed with both a privileged international status and procedural instruments whose potential was frequently underestimated. None the less, its action in service of peace suffered from certain limitations beyond its control, some of them structural, others circumstantial.

By endeavouring to achieve respect for the rule of law in relations between those subject to its jurisdiction, he noted, a court was performing a peacemaking function essential to the promotion of the social good. That function encountered its first structural limitation, however, in the inevitable limitation on the degree to which the law permeated social relations and on its effectiveness. International society was less integrated than its domestic counterpart, and the legal relations in it were weaker. In the absence of a universal legislative power, international law continued to be a direct product of its subject. International law remained both heterogeneous and fragmentary, which was a further challenge for an international court, whose work in the service of peace was entirely dependent on the application of that law. That was a handicap under which the international judicial function laboured, but it also conferred a specific social role. Since the subjects of international law were both creators and targets of the rules of that law, most often it fell to them to interpret and apply those rules. When the court made a decision in such cases, it was all the actors on the international stage, not merely the parties to a dispute, who were affected by that decision.

As an example of the grey areas in international law affecting the work of the Court, he cited the request for an advisory opinion passed to it by the Assembly on the legality of the threat of nuclear weapons. In the opinion rendered, he recalled, the Court made it clear that it did not legislate. The administration of justice would be impossible however, if courts were to refrain from ruling whenever the law was obscure or incomplete. Only States, in an elevated and responsible conception of their sovereignty, he said, could remedy such a situation by speeding up the construction of international law.

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The Court could only hope for an expansion and an improvement in the legal bases of its function.

He stressed some other elements of the judicial function: courts could only act when requested to do so -- and as a rule, therefore, they could only intervene a posteriori. Courts were always seized; they could not seize themselves. In highly integrated societies access to them was semi-automatic. Not only were courts competent a priori, society had adequate means for initiating corrective measures by itself, seizing the courts by taking legal proceedings. There was nothing comparable, however, in the international order. The respect for the sovereignty of States was echoed in a cardinal principle: no State could be made a subject to the verdicts of the courts unless it had already agreed to do so.

On the circumstantial constraints facing the Court, he noted that, for the first time, the International Court of Justice was compelled to mention the grave material difficulties under which it operated, and which now seriously imperiled the very discharge of the Court's duties. This was happening at a time of increasingly heavy workload. In the period 1 August 1995 to 31 July 1996, the Court rendered no fewer than five decisions, in cases of extreme complexity, deliberating on an average of three cases simultaneously. The place of the law and of the courts in international society could only be consolidated, or even expanded, he told the Assembly, if the Member States and the judges recognized the challenge before them and worked together. "You as legislators and we as judges together recognize that this process depends on both respect for the task already accomplished -- not to say the legal edifice already constructed -- and on the meticulous acknowledgement of the new realities of human society." It was absolutely essential that that twofold condition be met if lasting progress was to be ensured in the development of a true international community of law. He urged Member States to give the Court the support it could not do without.

CELSO LUIZ NUNES AMORIM (Brazil) told the Assembly that the increased case-load of the International Court of Justice "should be greeted as a sign of lasting relevance and renewed vitality". Given the recent emergence of a myriad of extremely violent localized conflicts, the preservation of peace was a task fraught with new and complex challenges. The Security Council had often been pressed to improvise solutions and, in that process, insufficient attention had been given to the tools provided by international law as laid out in the Court's Statute. The Charter allowed for a mutually enforcing relationship between the Council and the Court. A closer cooperation between the Council and the United Nations' principal judicial organ was worth encouraging, as a form of strengthening the rule of law in international relations.

The Court's landmark opinion was a new term of reference for the international community, the representative said. Also, the Court's recent

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judgment in connection with the conflict between El Salvador and Honduras was an invaluable contribution to the subregion's stability. The Court had also demonstrated its ability to function as an effective tool of preventive diplomacy and could well acquire an enhanced role in this capacity in years to come. It was unfortunately true that judicial forms of settlement were still widely underutilized and that disregard for international law continued to threaten stability in all regions of the world.

JOSE FELIX FERNANDEZ ESTIGARRIBIA (Paraguay) told the Assembly that his country had accepted international law as part of its national legislation and as the ultimate source for the solution of international conflict. The instrument of acceptance had been handed to the United Nations Secretary- General, by decision of the President of Paraguay and with the support of the main civil forces of Paraguayan society.

Major political changes in international relations were taking place in the world, including supranational integration, the establishment of ad hoc courts for genocide and the preparations for the establishment of an international criminal court. All of this forced the international community to reassess the role of the International Court of Justice, in all its capacities, including advisory proceedings and its jurisdiction over contentious cases. At the same time, Paraguay noted with some concern that the increase of States Members which accepted the Court did not follow the increase in number of States belonging to the Organization. It was hoped that those States would accede to the optional clause and admit the compulsory competence of the Court.

JULIO ARMANDO MARTINI HERRERA (Guatemala), speaking on behalf of Costa Rica, El Salvador, Honduras and Nicaragua, said the legal system governing the international community was inferior to national legal systems. The lack of adequate penalties to enforce compliance with judicial rulings weakened the current international system. Also, the fact that a State must agree to submit a conflict for review by the judicial organ limited its function. In addition, if the financial crisis of the United Nations adversely impacted the quality of work of the International Court of Justice, States might become reluctant to defer cases to the Court.

If the Court were to become a body with its hands tied, all financial resources dedicated to that body would be wasted, he said. It would also result in the deterioration of the international legal system. States would only then have recourse to ad hoc tribunals, which were often inferior to a central tribunal such as the Court. Thus, he was concerned about the difficulties the Court was now facing due to the United Nations financial crisis, which must not be allowed to undermine the ability of the World Court.

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JOHN L. O'HARA (Malaysia) said his country was concerned by the strain placed on the Court due to the severe cuts in resources and staff of its Registry. At a time of substantial recourse to the International Court of Justice by States and international organizations, staff and budgetary reductions were curtailing its established level of judicial service. He called upon the United Nations to ensure that the Court was given sufficient funds to continue to function as the premier judicial body in existence today. The advisory opinion of the Court regarding use of nuclear weapons -- in which it decided the threat of use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict -- was a positive development in the context of nuclear disarmament.

The World Court had an important role to play in the promotion of peace and harmony among nations through the advancement of the rule and the role of international law, he said. None the less, the Court had not realized its potential as the principal judicial organ of the United Nations, since the Security Council and the Assembly did not fully utilize the Court. The Council and the Assembly should use the Court to interpret the relevance and application of law. As part of United Nations reform, the role and composition of the Court should be revamped to better reflect today's global community. The position of some permanent Security Council members that their rights, status and prerogatives could not be altered was inconsistent with the basic principles of the Charter. Some permanent members' view that they should assume similar rights in other United Nations organs was even more unacceptable. Soon, the Assembly would hold elections to fill vacancies created when five members' terms expired in February 1997. Although it was permissible to reelect judges who have already served on the Court, he said it was necessary for the body to represent the main forms of civilization and reassure the principal legal systems of the world.

ABDALLAH BAALI (Algeria) told the Assembly that States large and small looked increasingly to the Court for a lasting solution to their disputes. The increased activities of the Court seen in recent years seemed to announce the beginning of a new and highly promising phase in the life of the Court. Every time the Court had been asked to intervene it had given its legal opinion. The potential offered by the Court was still underutilized, and yet it had shown time and time again its ability to offer solutions where other peaceful methods had failed. In Africa, adjudicating the dispute between Libya and Chad was another example of its positive role.

Despite the role of the Court as defined in Article 96 of the Charter, it had been condemned to a relative inaction. He expressed the hope that the General Assembly's initiative asking the Court for its opinion on the use of nuclear weapons would put an end to such unjustified timidity and hesitation. The opinion given was an important basis of jurisprudence, a major source of the development of international law on that matter and would forward the cause of international peace and security.

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MANUEL TELLO (Mexico) said that this year the International Court of Justice had issued advisory opinions on the use, and threat of use, of nuclear weapons. Mexico considered those opinions to be of the highest importance since they referred to the very survival of humanity. Mexico had taken part in those proceedings, especially in matters regarding the importance and validity of international humanitarian law, and would intensify its efforts towards complete nuclear disarmament.

The same judicial framework for the settlement of disputes between States had not changed for 75 years except for certain procedural modifications, he said. A review of the Statute would be desirable in order to evaluate and strengthen its current and future role. The task of revitalizing the Court was not currently included in any of the working groups on reform and modernization of the United Nations. A review of the criteria established in article 9 of the Court's Statute on its composition, could be another way to strengthen the Court. Such a review could find ways to better apply those criteria, which established the representation of the major civilizations and principal judicial systems of the world.

ORLANDO REBAGLIATI, Legal Adviser to the Ministry of Foreign Affairs, Trade and Worship of Argentina, said since its foundatin, States had deferred contemporary problems to the World Court. The recent questions sent to the Court were crucial to international security, such as the crime of genocide and the legal implication of the use of nuclear weapons. There was clearly a renewed international confidence in the integrity of the Court. The growing vitality of the Court could be seen in proposals to strengthen its functioning. The idea to expand the Court's advisory competence by authorizing the Secretary-General to request an advisory opinion from the Court was among several valuable proposals put forward.

TUILOMA NERONI SLADE (Samoa) said States seemed ready to submit disputes to the Court concerning a wide range of activities. With more cases being considered by the Court, a delay in disposing of cases could result. The manner and quality of management by the Court of its case load, in the light of its resources and time, might well be important. As the United Nations underwent reform, so to must the International Court of Justice. The Court must be strengthened in structure and procedures, and it must be provided with adequate means. The tenure and method of election of judges could be considered, as could the extension of the Court's advisory procedure to other United Nations bodies.

Acceptance of the Court's jurisdiction was a fundamental issue, he said. Compulsory third-party jurisdiction could support the proper application of the rule of law at the international level. However, it was possible that no amount of legal inventiveness would alter deep-rooted, political opposition to binding third-party settlement. Instead, what might alter the matter over the

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long term was the merit of the Court's own performance, in terms of fairness, soundness and expedience.

GUMA I. AMER (Libya) said respect for international law continued to be a principal commitment of his country. Libya had invoked the Court and implemented its judgments, such as its decision on the border dispute between Libya and Chad. It had also submitted a disagreement between Libya and several Western States known as the Lockerbie issue to the Court. Logic would have supposed that the matter would be decided by the Court before consideration by the Council. However, the issue had been politicized, and the Council consideration had led to sanctions against his country which continued to cause suffering. Either Court judgment could be awaited or a trial could be held at The Hague under Scottish law. Some States were attempting to impose the idea of "might is right" and apply national laws beyond their jurisdiction.

HUBERT LEGAL (France) said that normally his delegation did not make a statement in relation to the International Court of Justice report. This year, however, France wished to indicate its concern regarding resources needed by the Court to support its work. It did not appear that the resources available to the Court were sufficient to maintain operations, such as translations of documents into the official languages of the Court. Support of the Court was the least that the United Nations could offer to such a judicial body.

IMELDA SMOLCIC (Uruguay) said her country had the honour of having two judges on the International Court of Justice and considered the Statute as an integral part of the United Nations Charter. The vitality and international prestige of the Court was apparent in its report for this year. However, Uruguay expressed its concern about the possibility, as expressed earlier by other Member States, of giving the Court the power of controlling the legality of the Security Council and the General Assembly itself. That was a complicated subject and required further study.

Cases requiring the Court's opinion on nuclear weapons had been substantially resolved. The fact that no less than 45 States participated directly in deliberations indicated the importance the international community gave to the issue. The financial difficulties expressed in the report, which were mentioned for the first time this year, should be of deep concern to all. "We cannot be silent", he said. Solutions must be found, without permitting the deterioration of the work of the Court.

Statements on Implementation of Goals of World Summit for Children

Mr. TELLO (Mexico) said that his Government wished to reaffirm its commitment to the welfare of children. The programmes of action derived from the framework provided by the World Summit for Children had proved to be

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efficient strategies, accelerating change in favour of children. The main merit of those programmes was the incorporation of concrete goals, which permitted a systematic and periodical evaluation. The national programmes had also committed political will at the highest level of government, as well as the active participation of very wide sectors of civil society.

The prevention of disease was one area where there was significant improvement, he continued. The widening of vaccination services, the eradication of polio, the control of disease caused by the lack of iodine and the promotion of lactation were among the most important achievements. The challenge was now to maintain those levels. In Mexico, the most notable achievements included the decrease in infant mortality, especially that caused by diarrhoeic and acute respiratory diseases; greater vaccination coverage; the eradication of polio and the decrease of other diseases. Other achievements included the iodization of salt and more access to basic education. Despite those achievements, huge disparities persisted in Mexico. Other aims, such as decreases in maternal mortality and increases in the weight of the newborn, had not been achieved.

NIKOLAI V. TCHOULKOV (Russian Federation) said substantial progress towards achieving the goals of the World Summit for Children had been made, notably in child immunization, elimination of iodine deficiency and diseases such as tuberculosis. The mid-decade review and many national reports should be used by the United Nations Children's Fund (UNICEF) to modify its targets for the period up to the year 2000 and, if necessary, adjusting its country's activities. The future activities of the Fund should focus on the implementation of the United Nations Convention on the Rights of the Child and the strengthening of national capacity to provide basic social service. The UNICEF should also work to mobilize the efforts and resources of governments, civil society and the donor community, while supporting the attainment of the World Summit goals.

Many efforts had been undertaken in the Russian Federation to implement state policies on the protection of the rights of children, he said. An action plan to improve the situation of children in the Russian Federation had been undertaken. Some improvements had already been noted, including a reduction of infant mortality. However, the situation remained complicated, particularly due to the large portion of the population which lived in poverty. The Russian Federation hoped that UNICEF recent adoption of a programme of action for the countries of the central, eastern European and Baltic regions, and the Commonwealth of Independent States (CIS), and the opening of a regional fund would enlarge its activities in those areas.

BRUCE REID, Member of the Parliament of Australia, said the follow-up to the World Summit for Children was unique in producing specific, measurable and time-bound goals. Progress towards those goals had been made, reflecting effective commitments at national, regional and international levels.

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National Governments, UNICEF and United Nations bodies, notably the United Nations Development Programme (UNDP), could be proud of those achievements. Gains, however, had not been universal or uniform. Reduction of infant mortality had been too slow and many deaths of children under the age of five could be easily prevented.

More needed to be done to place the operational activities of the United Nations on a secure and predictable financial footing, he continued. Greater effectiveness within current resource levels was also key. His country, along with many others, was impatient for efficiency benefits to be realized. He illustrated his frustration by recounting that the cost related to immunizing one child against the major childhood diseases was $15, while the United Nations had recently spent more than $900 to produce and translate a single page of documentation in six official languages.

JOHN H.F.CAMPBELL (Ireland), speaking on behalf of the European Union and also Bulgaria, Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania, Slovenia, Slovakia, Iceland and Lichtenstein, noted that a "remarkable" number of States -- 187 -- had now ratified the Convention on the Rights of the Child. The Union stressed that governments should ensure the implementation of the Convention, especially the full and equal enjoyment of all human rights by the girl child. Overall positive trends were to be found in efforts to ensure children's survival prospects, such as the near universal immunization coverage, but the sustainability of those achievements was of crucial importance.

However, the progress achieved was uneven between goals, between regions and subregions and within countries in those regions. Millions of children still lived in poverty in sub-Saharan Africa and parts of South Asia especially, where relatively little progress had been made. The goals regarding nutrition, access to sanitation and maternal mortality rates had not been met and progress on basic education, particularly for girls, was not on track. The fact that the number of street children was growing was of deep concern.

The European Union reaffirmed its commitment to the international consensus on human development -- at the national level and as part of the international community -- and the particular needs of children within that context. It had supported the integrated approach taken up by the United Nations system and commended UNICEF, the International Labour Organization and WHO for their efforts in assisting countries in the implementation of the commitments made at the World Summit for Children. It expected more progress on child survival and great improvement in the quality of life for all children in the coming years.

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