scholarly journals He Got It Almost Right

AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 116-117
Author(s):  
Frederic L. Kirgis

Larry Johnson’s answer to his own question is a qualified “no.” Surely he is correct when he says that the General Assembly does not need the Uniting for Peace resolution in order to consider a matter that is on the UN Security Council’s agenda. The International Court of Justice made that clear in its Advisory Opinion on the Construction of a Wall. It is only when the Security Council is actively pursuing the matter that UN Charter Article 12(1) requires the General Assembly to defer to the Council.Johnson is also correct when he says that Uniting for Peace does not serve to enhance the authority that the UN Charter itself supplies to the Assembly to adopt non-binding resolutions intended to keep or restore peace. The ICJ also made that clear in its Advisory Opinion on the Construction of a Wall. Without relying on the Uniting for Peace resolution, the ICJ in paragraphs 27 and 28 of its Opinion approved the practice of the General Assembly to deal with matters concerning maintenance of international peace and security. The Court turned to the Uniting for Peace resolution only in the ensuing paragraphs of its Opinion, dealing with procedural matters related to the Assembly’s request for an Advisory Opinion.

Author(s):  
C. F. Amerasinghe

The powers of the General Assembly and Security Council of the United Nations to take collective measures for the maintenance of international peace and security, particularly to maintain armed forces for that purpose, and the power of the General Assembly to finance these activities were much discussed during the recent crisis in the Organization when certain members refused to contribute to the support of the UNEF and Congo Operation. Various aspects of the matter have been discussed by writers; they have also been dealt with by the International Court of Justice in its Advisory Opinion of June 1962 where it held that the UNEF and Congo Operation undertaken by the General Assembly and Security Council were intra vires the powers of these organs and that the expenses incurred by the Organization in the execution of those ventures were “expenses of the Organization” for the purposes of Article 17 (2) of the Charter. The Court and some of the judges who gave separate opinions further made a definite contribution to the interpretation of certain aspects of the Charter in the course of arriving at these conclusions.


Author(s):  
Esam Elden Mohammed Ibrahim

The International Court of Justice had the opportunity to establish the principles of international humanitarian law and restrict the use or threat of nuclear weapons, on the occasion of its fatwa, on the legality of the threat or use of nuclear weapons at the request of the United Nations General Assembly, after realizing that the continued development of nuclear weapons exposes humanity to great risks, and its request It states, "Is the threat or use of nuclear weapons in any circumstance permissible under the rules of international law" (Atalm, 1996), (Shahab, 2000), Therefore, the comment seeks to answer the question: What is the legality of possession, production and development of nuclear weapons? What is the extent of the legality of the threat to use it in light of the advisory opinion of the International Court of Justice in this regard? Was the decision of the International Court of Justice in favor of documenting the principles of international humanitarian law and international human rights law? Or was it biased in its decision to the interests of a particular class itself? The researcher used in that descriptive, descriptive and critical analytical method, and the results that lead to criticism of the work of the International Court of Justice in this regard were reached on the premise that they tended towards tipping the political nature of the issue presented to it under the pressures and directions of the major nuclear states and this strengthens my criticism to the United Nations that I see It only works for the benefit of the major powers under the auspices of the Security Council by veto (right to veto) at a time when the Security Council itself is responsible for maintaining international peace and security, just as it can be said that the United Nations does not work for the benefit of mankind but works for the five major countries Even with regard to nuclear weapons Regardless of whether or not there was a threat to international peace and security. From this standpoint, the researcher reached several recommendations, the most important of which is the necessity of the independence of the International Court of Justice in its work from the political considerations of member states, especially the major countries, as a step to establish and support international peace and security in a practical way in practice. The United Nations should also reconsider what is known as a veto, which is and it is rightly one of the most important and most important measures that truly threaten international peace and security.


2010 ◽  
Vol 11 (7-8) ◽  
pp. 867-880 ◽  
Author(s):  
Robert Muharremi

On 22 July 2010, the International Court of Justice (hereinafter the “ICJ”) delivered its advisory opinion on the accordance with international law of the unilateral declaration of independence in respect of Kosovo. The ICJ concluded that the declaration of independence dated 17 February 2008 did not violate any applicable rule of international law consisting of general international law, UNSC resolution 1244 (1999) (hereinafter the “Resolution 1244”) and the Constitutional Framework for Provisional Self-Government in Kosovo (hereinafter the “Constitutional Framework”). The ICJ delivered the advisory opinion in response to a question set out in resolution 63/3 dated 8 October 2008 of the General Assembly of the United Nations Organization (hereinafter the “General Assembly”), which asked if “the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo is in accordance with international law.”


2011 ◽  
Vol 60 (3) ◽  
pp. 799-810 ◽  
Author(s):  
Dov Jacobs

‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’ It is to answer this question that the General Assembly of the United Nations (‘UNGA’) requested an advisory opinion of the International Court of Justice (‘ICJ’). The request, adopted in October 20081 and initially sponsored by Serbia, was triggered by the declaration of independence of Kosovo issued on the 17 February 2008.2 Some two years later, on the 22 July 2010, the ICJ delivered its Advisory Opinion.3 By a 10–4 vote, the ICJ found that the declaration of independence of Kosovo did not violate international law.


2011 ◽  
Vol 105 (1) ◽  
pp. 50-60 ◽  
Author(s):  
Richard Falk

The somewhat surprising majority view in the advisory opinion of the International Court of Justice (ICJ) assessing Kosovo's declaration of independence has some bearingon prospects for an eventual end to the bitter conflict between Kosovo and Serbia. It may also have some relevance for a variety of political movements around the world whose leaders might be more inclined than previously to tempt fate by declaring their people and territory to be internationally independent of the sovereign state within which they are now geographically located. Significantly,the ICJ majority sidestepped the question put to it by the General Assembly, in a move objectionable to the four dissenting judges,recasting it in such a way as to limit its response to whether Kosovo's declaration of independence, issued on February 17,2008, was “in accordance with international law” to the rather bland assertion that the declaration did not violate international law. The Court did not say, and explicitly ruled out any interpretation suggesting, that Kosovo's declaration was acceptable under international law, although by Lotus reasoning, what a state is not expressly prohibited from doing is permitted.3 The majority also expressed its view that the declaration was not to be viewed as decidingupon Kosovo's final status in world diplomacy.


2011 ◽  
Vol 24 (1) ◽  
pp. 109-126 ◽  
Author(s):  
MARCELO G. KOHEN ◽  
KATHERINE DEL MAR

AbstractThis article focuses on the reasoning employed by the International Court of Justice in its Advisory Opinion rendered on 22 July 2010 with respect to the most formidable legal impasse of the accordance with international law of the unilateral declaration of independence: the lex specialis that applied at the critical date, and which the Court affirmed continues to apply to Kosovo, as established by the United Nations Security Council in its Resolution 1244 (1999). The Court's analysis of the applicable lex specialis is questionable. Its analysis was coloured by the narrow approach it took to answering the question it was asked to address. It queried an unambiguous factual qualification made by the General Assembly, and it disregarded factual qualifications made by the Secretary-General, his Special Representative, and indeed all relevant actors. It failed to uphold the legally binding provisions of Security Council Resolution 1244, and it did not qualify as unlawful or invalid an act of a subsidiary body of the Security Council that was undertaken in excess of authority and contrary to the fundamental provisions of that Resolution. The resolute conclusion of the majority of the Court that the unilateral declaration of independence did not violate international law seems to read as a declaration of ‘independence from international law’.


1948 ◽  
Vol 2 (3) ◽  
pp. 568-573

On November 17, 1947, the General Assembly of the United Nations adopted the following Resolution:“The General Assembly,Considering Article 4 of the Charter of the United Nations,Considering the exchange of views which has taken place in the Security Council at its Two hundred and fourth, Two hundred and fifth and Two hundred and sixth Meetings, relating to the admission of certain States to membership in the United Nations,Considering Article 96 of the Charter,Requests the International Court of Justice to give an advisory opinion on the following question:Is a Member of the United Nations which is called upon, in virtue of Article 4 of the Charter, to pronounce itself by its vote, either in the Security Council or in the General Assembly, on the admission of a State to membership in the United Nations, juridically entitled to make its consent to the admission dependent on conditions not expressly provided by paragraph 1 of the said Article? In particular, can such a Member, while it recognizes the conditions set forth in that provision to be fulfilled by the State concerned, subject its affirmative vote to the additional condition that other States be admitted to membership in the United Nations together with that State?Instructs the Secretary-General to place at the disposal of the Court the records of the above-mentioned meetings of the Security Council.”


2002 ◽  
Vol 15 (4) ◽  
pp. 781-804 ◽  
Author(s):  
Mutlaq Al-Qahtani

Together with the Security Council and the General Assembly, the International Court of Justice is one of the most important guarantors of peace, security and co-operation among states. The role of the ICJ in the enforcement of its decisions has received little attention in the existing literature. Although international courts, regional courts and national courts do not physically enforce their decisions, they have various levels of enforcement mechanism procedures. Nevertheless, it has been widely and mistakenly believed that it is not the business of the ICJ to enforce its decisions, but rather this is the business of other political bodies of the United Nations. It is argued in this paper that this proposition is not accurate and, instead, the ICJ has at its disposal various enforcement procedures and is, moreover, under statutory obligations to participate actively in policing and enforcing its decisions.


2005 ◽  
Vol 16 (3) ◽  
pp. 525-545
Author(s):  
Frank Langdon

The article attempts to evaluate the balance of United Nations accomplishments in the field of peace and security since 1945. The first part deals with the elements one has to take into consideration to properly evaluate such performance. These are what the Organization ought to do (its objectives), what it could do (its means) and what it has done (the kinds of activities). In the second part, each one of these elements is examined. About the objectives, the article distinguishes between manifest and latent objectives and it argues that the first ones have not changed when the second ones have much changed. About the means, the article analyzes the powers given the UN and the way its principal organs exercise them. It traces the evolution of the roles of the Security Council, the General Assembly, the Secretary general and the International Court of Justice. Concerning the kinds of activities, the article uses a typology developed by H.K. Jacobson to argue that the main function of the UN is a "verbal" or informational one, that the normative function especially in its collective legitimization aspect is the second most important, that the rule supervisory function accounts or few activities, and, that the operational function is more developed than it may appear. The article concludes that the balance is a positive one pointing to the flexibility, the adaptability and the continued usefulness of the UN.


2010 ◽  
Vol 11 (7-8) ◽  
pp. 837-839 ◽  
Author(s):  
Michael Bothe

At a first glance the International Court of Justice (ICJ) has given a clear negative answer to the question submitted to it by the General Assembly. According to the ICJ's advisory opinion from 22 July 2010, Kosovo's declaration of independence did not constitute a violation of international law. Yet, reading the reasons the ICJ offered in support of its holding, one soon discovers that many relevant questions have been left open.


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