GENERAL ASSEMBLY IS TOLD PROLIFERATION OF TRIBUNALS MAY BE RISK TO UNITY OF INTERNATIONAL LAW

Fifty-sixth General Assembly

Plenary

32^nd Meeting (AM)

GENERAL ASSEMBLY IS TOLD PROLIFERATION OF TRIBUNALS

MAY BE RISK TO UNITY OF INTERNATIONAL LAW

Report of World Court Discussed; Speakers Note

Need For Extra Resources to Cope With Increasing Workload

The need to maintain unity of international law, in view of the proliferation of tribunals was discussed in the General Assembly this morning, as the Assembly took up the report of the International Court of Justice.

The President of the Court, Gilbert Guillaume, introducing the report, said the proliferating tribunals had raised the risk of parties competing for courts in a practice sometimes referred to as “forum shopping”, with the overlapping of jurisdictions which might jeopardize both the unity of international law and its role in inter-State relations across the world.

He said no new international court should be created without first questioning whether an existing court could better perform its duties.  Also, international judges should be aware of the dangers in fragmenting the law and try to avoid them.  And finally, the International Court of Justice should play its role as the only judicial body vested with universal and general jurisdiction.

Several speakers said the Court needed increased resources to deal with its growing workload.  The representative of the Russian Federation, agreeing that the increasing number of international judicial organs was of concern, said the International Court of Justice should be given the necessary resources to fulfil its functions.

Japan’s representative also said the Court had no equal in developing international law, strengthening the rule of law and dealing with international crisis.  Its workload had increased but its resources had not.  As the second largest contributor to the United Nations budget overall, his country contributed to the Secretary-General's Trust Fund for the Court.  However, the Trust Fund was underutilized.  Since it was better to resolve disputes through litigation than armed conflict, States in need of the Fund’s resources should make use of it.

The representative of Sierra Leone said it was far more economical to resort to the Court than to armed conflict.  By adjudicating disputes between African States, the Court had helped to decrease regional tension and promote regional peace and stability.  The Court had demonstrated its cost-effectiveness.

Also speaking this morning were the representatives of Peru, Costa Rica, Malaysia, Singapore, Mexico, Nigeria, China, Spain, Republic of Korea and Cameroon.

As the Assembly began its meeting, tributes were paid to the late Ismat Kittani, a national of Iraq, a former President of the Assembly and senior United Nations Official.  Deputy Secretary-General Louise Frechette said Mr. Kittani had been a friend to countless people and respected by all.  Condolences were expressed on behalf of the regional groups and the host country.

Also this morning, the Assembly acted on the recommendation of its General Committee by deciding to include an additional item in the agenda of its current session.  Entitled “United Nations Year for Cultural Heritage, 2002” the item will be considered directly in the plenary.

The Assembly meets again at 3:00 p.m. today to take up the question of equitable representation on and increase in the membership of the Security Council and related matters addressed in the report of the Open-Ended Working Group on that matter.

Background

The General Assembly met this morning to consider inclusion in its agenda of the item “United Nations Year of Cultural Heritage, 2002” (second report from the General Committee, document A/56/250/Add. 1) and the Report of the International Court of Justice (ICJ) (document A/56/4) covering the period from 1 August 2000 to 31 July of the present year.

The ICJ report indicates there were 189 States parties to the Court Statute at the end of the period, and that 63 of them had deposited declarations to accept the Court’s compulsory jurisdiction.  Some 260 bilateral or multilateral treaties provided the Court with jurisdiction to resolve disputes.  The number of cases standing before the Court was 22, three between African states, one each between Asian and Latin American states and 12 between European states.  The other five were of an intercontinental character.

[Located at The Hague, the Netherlands, the Court is the principal judicial organ of the United Nations.  It settles legal disputes between States and gives advisory opinions to the United Nations system.  Its Statute is an integral part of the Charter and it comprises 15 Judges elected by the General Assembly and the Security Council, voting independently.  It derives its decisions by applying international conventions recognized by the disputing States, international custom as evidenced by accepted law, general principles of law recognized by nations and judicial decisions or teachings of legal scholars.]

The report of the court says the number and diversity of its cases had increased in part because of linkages.  Two sets of cases, for example, stemmed from an aeroplane incident over Lockerbie, Scotland, and eight from actions in Kosovo by States belonging to the North Atlantic Treaty Organization (NATO).  Many cases had also been complicated by objections about jurisdiction or admissibility, counterclaims, applications for interventions and requests for indication of provisional measures, which required urgent address.

The Court’s sustained activity had kept the situation from worsening, the report states, and it details 26 cases the Court had handled during the reporting period.  It had handed down rulings in a maritime dispute between Qatar and Bahrain, a dispute between Germany and the United States relative to the execution of two German nationals, and a situation between the Democratic Republic of the Congo and Belgium involving the legality of an arrest warrant.  In addition, 32 Orders concerning proceedings in current cases had been issued.  While the Court had been able to consider all cases ready for hearing, the written phase in a number of cases was near completion and continuing problems within the Court were expected to manifest.

Those were related to ongoing measures for rationalizing the Registry's work, making greater use of information technology, improving work methods and securing collaboration.  Proceedings had been shortened and simplified, particularly in relation to preliminary objections and counter-claims.  Still, as the Court had stressed in its previous report, it would be unable to cope with its increased workload without a significant increase in its budget.  In December 2000, the General Assembly had approved a supplementary budget for the present year.  For the 2002-2003 biennium, it had requested even more substantial appropriations for the Registry Departments and assistance to judges.  The Advisory Committee on Administrative and Budgetary Questions (ACABQ) was considering the requests.  Aspects of the Court’s finances are detailed in the report, as are its documents, visits and amendments of rules.

The Assembly also had before it a report on the Secretary-General’s Trust Fund to Assist States in the Settlement of Disputes through the International Court of Justice (document A/56/456) covering the ten-year period since the last report.  In it, the Secretary-General states that two applications for assistance had been received during the period under review, both involving a boundary dispute.  Limited funding had been awarded in both cases to defray costs ranging from document preparation to cartography to counsel.

The report also notes that 18 States had contributed to the voluntary Fund during the period under review.  Contributions, however, had been limited from inception and few States without the resources to present their case before the ICJ resorted to it.  As at 30 June, the Fund’s total balance was $1,602,734.

Tribute to the Late Ismat Kittani

When the Assembly met, the President, HAN SEUNG-SOO (Republic of Korea), informed delegates of the recent death of Ismat Kittani, a national of Iraq and President of the Assembly’s 36^th session in 1981.  Mr. Kittani had a long and distinguished career at the United Nations, having served as Assistant Secretary-General, Chef de Cabinet and Special Adviser, as well as Special Representative of the Secretary-General to some highly sensitive missions.  The President said Mr. Kittani was a skilful diplomat and negotiator who would be remembered for his dedication and commitment to the ideals and principles of the United Nations.  On behalf of the Assembly, Mr. HAN conveyed deepest condolences to the bereaved family of Mr. Kittani.

The Assembly then observed one minute of silence.

LOUISE FRÉCHETTE, Deputy Secretary-General of the United Nations, said Mr. Kittani had been an unforgettable member of the United Nations family, a friend and mentor for countless people, respected by all.  For several decades the Organization had benefited from his wisdom, diplomatic skills and kindness.  He was an accomplished diplomat with intimate knowledge of the inter-governmental process.  He brought professionalism and objectivity to all his work, as well as a great deal of warmth and humour.  Upon his retirement he had said that no one was forced to work for the United Nations but that people did so because they believed in its ideals.  “As we express our condolences to the bereaved family today, let us also give thanks for the example he gave to all of us”, she said.

ELFAHIT MOHAMED AHMED ERWA (Sudan), speaking on behalf of the African States; JOHN DE SARAM (Sri Lanka), speaking on behalf of the Asian States; PETER P. CHKHEIDZE, on behalf of the Eastern European States; PIERRE LELONG (Haiti) on behalf of the Latin American and Caribbean States; PHILOMENA MURNAGHAN (Ireland), speaking on behalf of the Western European and Other States, and NANCY CAIN MARCUS (United States), as representative of the host country, all expressed condolences, and spoke about Mr. Kittani’s many qualities and character.

MOHAMMED ALDOURI (Iraq) said the late Mr. Kittani had served his country many times in the Ministry of Foreign Affairs, where he started his career at 1952.  He was well known for his outstanding character and distinguished work, and was remembered well in Iraq.  After a career in the Foreign Ministry, Mr.Kittani had reached the position of the permanent representative of Iraq to the United Nations in Geneva as well as at Headquarters.

Mr. Kittani, who would be remembered for his personality and diplomatic skill, believed fully in the United Nations and its noble and lofty objectives.

He extended gratitude and thanks to the Secretary-General for his eulogy and thanked all those who had conveyed condolences.

Election of 18 members of Economic and Social Council

Mr. HAN (Republic of Korea), the Assembly’s President, then read the results of last Friday’s election of members of the Economic and Social Council for the record (see Press Release GA/9940 of 26 October, 2001).

Adoption of Agenda and Allocation of items

On recommendation of the General Committee (document Assembly 56/250/Add.1), the Assembly decided to include an additional item, entitled “United Nations Year for Cultural Heritage, 2002” in the current session’s agenda and to consider it directly in the plenary.

Report of International Court of Justice

GILBERT GUILLAUME, President of the International Court of Justice, introducing the report, said the Court had 22 cases before it, which came from every continent and touched on a wide range of issues.  Three were concerned with territorial disputes between Cameroon and Nigeria, Indonesia and Malaysia, and Nicaragua and Honduras.  Two were disputes about the treatment of foreign nationals, which had arisen between Guinea and the Democratic Republic of the Congo and between Liechtenstein and Germany.  Others cases were linked more directly to events which the Security Council or Assembly had examined, such as the destruction of Iranian oil platforms by the United States in 1987 and 1988, the 1992 explosion of an American aircraft over Lockerbie, Scotland, the crises in Bosnia-Herzegovina and Kosovo, and the situation in the African Great Lakes.

Over the past year, he said, the Court had concluded four cases.  In a territorial dispute between Qatar and Bahrain, the Court had recognized Bahrain’s sovereignty over the Hawar Islands and the island of Qit’at Jaradah, and the sovereignty of Qatar over Zubarah, Janan Island and the low-tide elevation of Fasht al Dibal.  Another case had settled the merits of a dispute between Germany and the United States, after two German nationals had been executed in the United States.  Since the report had been drafted, the Court had dealt with three further cases.

Judge Guillaume said several cases were waiting to be heard during 2002, and the Court needed to avoid excessive delays in examining them.  It had carried out several measures to improve and speed up procedures, but these would not be sufficient, and the Court had requested a moderate increase in financial resources for the coming biennium.  The ACABQ had recommended to the Assembly an 11 per cent increase in the Court’s budget.  With such an increase, the Court’s Registry staff could be increased to 91 people, which would allow it to work under improved conditions and achieve better results in the coming year.  With new resources at its disposal, the Court would do its utmost to adjudicate the current cases as quickly as possible, while maintaining the quality of its jurisprudence.

The nineteenth century had seen international law and arbitration develop, he continued.  Since the Permanent Court of International Justice became the International Court of Justice in 1945, international tribunals had proliferated. That phenomenon had raised the risk of parties competing for courts -– sometimes referred to as “forum shopping” –- and overlapping jurisdiction.  For the past six years, successive Presidents of the Court had called the Assembly’s attention to those risks, which on several occasions had been realized.  The proliferation of international courts could jeopardize the unity of international law and its role in inter-State relations.

No new international court should be created without first questioning whether an existing court could better perform its duties, he said.  International judges should be aware of the dangers in fragmenting the law and try to avoid them.  The ICJ –- the only judicial body vested with universal and general jurisdiction –- also had a role to play in this area.  To maintain unity of the law, the various existing courts could be encouraged in certain cases to request advisory opinions from the Court through the Security Council or the Assembly.

OSWALDO DE RIVERO (Peru) said that in recent times Peruvians had experienced the costs of the destruction of the rule of law and democratic institutions, and the subjugation of the political rights of citizens.  Fortunately, those sombre episodes in history had been overcome, but watching an elected government demolish democratic institutions had served to reinforce respect for the enforcement of the law and justice.  The same applied to the international scene, since the sustained viability of the international community depended on the genuine commitment of States to find peaceful solutions to their disputes.

He said his delegation was pleased that 26 cases had been submitted during the recent period to the jurisdiction of the ICJ, and it was delighted with the solution of the long-standing territorial and maritime dispute between Qatar and Bahrain on the sovereignty of the Hawar Island, the sovereignty rights on the shoals of Dibal and Qit’At Jaradah and the delimitation of the maritime areas of the two States.  The decision on the problem between Germany and the United States on the execution of the Lagrand brothers also provided valuable jurisprudence.

He said he welcomed the revision of the Court’s regulations to make its procedures quicker and more efficient.  Nevertheless, there remained an important logistics problem:  budgetary resources were insufficient for a growing procedural load.  To date, only 63 States had made declarations acknowledging the mandatory jurisdiction in accordance with paragraphs 2 and 5 of article 36 of the Statute.  The Court would only be universal if Member States were genuinely willing for it to be so.

BERND NIEHAUS (Costa Rica) said the Court had now become an engine of peaceful relations between States.  On some occasions, legal disputes could deteriorate into threats to international security, especially disputes over land. The Court could reduce tension and bring about a peaceful solution to disagreements.

The Court, the principal judicial organ of the United Nations, also played a role in the codification of international law.  It had a declaratory role and its jurisprudence illuminated obscure areas of law.  Many times, the Court had taken a progressive stance.  He referred to the finding of the Court in the Lagrand case. Its interpretation of the Vienna Convention of Consular Relations was appropriate. He also noted the decision that provisional measures implied an obligation of compliance.

Accepting the mandatory jurisdiction through the optional protocol was a clear expression of goodwill, he said.  He called upon all States that had not done so to accept mandatory jurisdiction of the Court and withdraw any reservations.  The Court must be provided with the necessary resources and staff; its budget paled in comparison to the budgets of the ad hoc Tribunals.

He noted what he called  the excellent work of dissemination through the Court’s web page, and hoped the Court would include the integral texts of all findings since its inception.  The international community was going through a difficult period; now, more than ever, it was necessary to reaffirm the rule of international law.

HASMY AGAM (Malaysia) said the ICJ was the most appropriate forum for a peaceful and final resolution of disputes, when all efforts in diplomacy had been exhausted.  Malaysia, in mutual agreement with Indonesia, had decided to submit to the Court the territorial dispute between them, related to the sovereignty over two islands, Pulau Litigan and Pulau Sipadan.  He said his delegation welcomed the decision of the Court, delivered on 23 October 2001, in respect of the request of the Philippines to intervene in the case, and trusted that the Court’s decision would be fully respected.

His delegation had noted with interest that there had been increasing recourse to the Court by Member States over the years.  Also noteworthy was the increasing trend of referring treaties to the Court for jurisdiction in the resolution of disputes arising out of their application or interpretation.  In light of the increase in the workload of the Court, his delegation strongly believed that there was an urgent need to strengthen the Court’s capacity to efficiently dispose of the cases before it, as well as to undertake the related additional administrative responsibilities.  He hoped the financial resources allocated to the Court would meet its needs.

The General Assembly had approved a supplementary budget for the year 2001, which had made possible the enhancement of the Court’s Department of Linguistic matters, but this was not sufficient to overcome the budgetary problems faced by the Court.  For the biennium 2002-2003, it had found itself obliged to request substantial appropriations.

WARREN CHIK (Singapore) said that in these uncertain times, especially in the wake of the atrocious events of September, upholding and enforcing the law in all its symbolism and reality was more vital than ever.  The Court played a key role in furthering international peace and security by impartially adjudicating matters involving, for example, the application of the Genocide Convention and the United Nations Charter.

While noting the Court's steps to shorten and simplify pleadings and proceedings, he said its Computerization Division remained small.  Despite its efficiency, given the current allocation of resources the Court may not be in a position to take advantage of advances in global technology for streamlining and simplifying its procedures, such as the use of electronic filing and digital submission of pleadings and submissions.

He said training, and the implementation of such improvements, were intrinsically linked to the question of funding and resources, which the Court had repeatedly appealed for.  It was disturbing that it had constantly to seek funding for work so vital to the enunciation and development of international jurisprudence.  If States were seriously committed to the development and maintenance of international law, they must be committed to paying up arrears and dedicating greater funding.

JAN MANUEL GOMEZ ROBLEDO (Mexico) said the quantity of information in the Court’s report was encouraging.  The number of cases the Court dealt with had continued to grow.  It now had before it an extensive list of cases originating in all regions of the world, and covering the most diverse topics.  That was a sign of the confidence and trust of the international community.

Action was needed to confront the Court’s growing number of cases; granting the Court greater financial resources was one way of facilitating its functions, but its procedures must also be strengthened and streamlined.  The Court had adopted a series of measures to strengthen its work and he encouraged it to continue.

He said the ICJ report had noted that a contentious case had been resolved between the United States and Germany, regarding the execution of two German nationals –- the Lagrand case.  A statement by the Court on this topic would have been relevant.  The Court’s decision in the Lagrand case would assist States in resolving potential future cases.

IBRAHIM M. KAMARA (Sierra Leone) said the ICJ was making a major contribution to a more peaceful world.  Its docket had continued to expand, as more disputes were referred to it from the various regions of the world.  This attested to the confidence the international community had in it.  He said he had taken particular note of the Court’s role in adjudicating disputes between African States, thereby helping to decrease tension in the region as well as contributing to the promotion of States and to regional peace and stability.

If the Court were to continue as a modern institution and render justice speedily and efficiently, it should be provided with the necessary resources to make adjudication as expeditiously as possible, while maintaining the quality of jurisprudence.  He said the Court had demonstrated that it was cost-effective, and he supported its request for modestly increased resources.

He said he joined the appeal for an increase in monetary contributions to replenish the Secretary-General’s Trust Fund to assist States, in particular developing States, to settle their disputes through the Court.  He said the Fund had already justified its existence by encouraging States to bring their disputes before the Court instead of resorting to armed conflict.  That not only represented a peaceful way of resolving a conflict, but was also far more economical.

E. E. ONOBU (Nigeria) said there had been an enormous increase in the Court’s workload, which reflected a rising recognition of its jurisdiction.  In the 1970s, the Court had had only one or two cases on its docket at a time, but that had increased dramatically and now stood at 22.  The subject matter ranged from maritime boundaries and sovereignty to questions on the legality of using force and the expropriation of foreign property.

He said the Court had made significant progress in improving its working methods, but the increased workload would require an increased financial allocation.  He noted that for the 2002-2003 biennium, the Court had requested additional resources to enable it to effectively discharge its statutory functions.

He regretted the backing in the Court’s publications, such as reports of judgments, advisory opinions and orders issued by the Court.  Those documents were invaluable to the development of international law and its codification.  Easy access to such publications, especially by developing countries, would create greater awareness and understanding of international law.  He urged the Court to publish its various documents as soon as more resources were available.

XUE HANAN (China) said the judicial independence and impartiality of the ICJ, the high qualifications of its judges and its representation of the world's legal systems determined the important role it played in the peaceful settlement of international disputes.  Difficulties facing the Court in terms of personnel and resources had become more evident and acute, with the increase in its caseload.  She called upon the international community, especially the United Nations and parties to the Court's statute, to ensure that the Court operated properly and played its full role.

He said China, with a long history and magnificent civilization, represented one of the principal legal systems of the world.  It believed that as a body in which the main forms of civilization and the world's principal legal systems were represented, it was essential that the authority and fairness of the Court were secured.  China would continue to make its contribution.

The Chinese government attached importance to the role of the ICJ in the peaceful settlement of international disputes.  It believed in that, including through negotiation and adjudication.  China would always support the work of the Court and make steady efforts to promote the rule of law at the international level and to safeguard world peace. 

AURELIO PEREZ GIRALDA (Spain) said his Government was convinced that the trust of States in the Court was indispensable for it to carry out its mission.  Proof of this was Spain’s acceptance of its mandatory jurisdiction.  It was encouraging to hear Judge Guillaume refer to the frequent use of the Court by Member States, and indeed the universal nature of the Court was reflected in the parties that participated in its cases.

He said Spain was fully aware of the difficulties related to the funding of the Court and the negative impact that this had.  His delegation hoped that proposals to increase the budget would elicit a favorable response.  The excellent results in the Court’s reform could be seen in every aspect of the Court’s labour, but he said he wished to highlight the improvement in internal procedures and the use of new information technologies.  The work the Court was doing to disseminate news of its activities was also noteworthy.  Spain had full confidence in the future of the Court.

HIROSHI OE (Japan) noted the concerns that had been expressed over the possible fragmentation of international law because international courts were proliferating.  As a principal judicial organ of the United Nations, the ICJ had no equal in the important role it played for the development of international law. The Court deserved support in continuing to strengthen the rule of law and in preventing and resolving international crises.

As the second largest contributor to the United Nations budget overall, he said, his country had also contributed annually to the Secretary-General's Trust Fund for the Court, for a total amount to date of $252,000.  However, judging by past and current documents, as well as by the proposed biennium programme budgets, the Fund seemed to be under-utilized.  Since it was better to resolve a dispute through litigation than armed conflict, States in urgent need of resolving a dispute but without proper legal expertise or assistance should utilize the Fund in seeking recourse.

Japan’s commitment to the Court was longstanding.  The Court’s most senior judge was from his country and would be retiring in 2003.  Japan would present a new candidate for election, in the hope of continuing to contribute to the Court, whose mission would be all the more important in the twenty-first century.

He said the Court’s workload had grown significantly in recent years while the resources available to it remained limited.  While the Court continued to improve, rationalize and update its practices and procedures, all States should facilitate the Court’s efficiency by reducing the Court’s burden and expediting proceedings.  Written pledgings and oral arguments should be kept to a minimum.

VLADIMIR Y. TARABRIN (Russian Federation) said the Court had the leading part in defending the principles and norms of international law, in particular the principle of peaceful settlement of disputes between States.  Practice had shown that the Court was the most authoritative body to which States could turn for resolve of disputes.

The radical changes in the nature of international relations had led to an increasing interest by the international community in the Court for settling international disputes.  That trend was positive and he hoped it would continue. However, that put an additional burden on the Court and the United Nations.  The Court’s functioning was often still too slow, and he recommended that the Court should think on how to increase its speed without prejudice to the quality of its work.

To fulfil its functions, the Court must have the necessary resources.  It’s budget was several times lower than that for the Tribunal for the former Yugoslavia.  He supported increasing the Court’s budget and a modest increase in its staff, if it did not affect the United Nations’ regular budget for the coming biennium.

He said the increasing number of international judicial organs was also a matter of concern.  It could undermine the unity of international law and lead to acts of jurisprudence which might contradict each other.

KIM EUN-SOO (Republic of Korea) said that this year the Court had put an end to a long-standing dispute between Qatar and Bahrain; the judgment would be recorded as one of the most important judicial decisions in the field of

territorial disputes and maritime boundary delimitations in the Court’s history.  Another landmark case had been the Lagrand case, in which the Court had recognized for the first time the binding nature of its orders for the indication of provisional measures under article 41 of the statute.

While the substantial increase in the number of cases before the Court reflected the inclination of more States to seek settlements to disputes by judicial means, it had overburdened the Court and made it difficult to handle cases in a timely fashion.  As the only international judicial institution with general jurisdiction, the ICJ was now being called upon to play a more active role in promoting world peace based upon the rule of law.  A considerable increase in the Court’s budget seemed to be necessary, in order to deal with its heavy workload and to overcome the difficulties in its administration and management.  His delegation was of the view that the proposed budget for the next biennium should receive favorable consideration.

MAURICE KAMTO (Cameroon) said the number of cases before the Court was a clear sign that States had increasing confidence in the authority of the highest court in the world.  For the sake of the international community and peace, he hoped that trend would continue.

Two things were of particular interest in the Court’s report, he said. First, the decisions made in the Lagrand affair were a clear indication about the sensitivity of the Court to the right to live.  The ordinance calling on the provisional measures had been handed down with unprecedented speed in only 24 hours.  Also, the firm language of the order signified a keenness to save the Lagrand brother who had not been executed at that date.  The Court demanded that Walter Lagrand should not be executed until a definitive decision had been handed down.

Another important point in the report was the amendment to articles 71 and 80, which would accelerate procedures at the initial stage, so that States parties would not be able to paralyse the Court’s activities.  The high cost of Court procedure and the hope of States for speedy decisions were incompatible with the slow speed of activity.  The amendment was bound to make international justice more effective and the eventual winner.

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