General Assembly Session 51 meeting 34

The President

This morning the Assembly will first turn to the report of the International Court of Justice now before the Assembly (A/51/4) covering the period from 1 August 1995 to 31 July 1996.

May I take it that the General Assembly takes note of the report of the International Court of Justice?

The President

I call upon Mr. Mohammed Bedjaoui, President of the International Court of Justice.

Mr. Bedjaoui (President of the International Court of Justice)

It is again a pleasure and an honour for me to have the opportunity to address the General Assembly on behalf of the International Court of Justice. I cannot reiterate often enough the importance, in my view, of this direct and truly privileged contact between the Court I represent and the General Assembly, and I am most pleased as well that this has become a regular event. The independence and equanimity which must in all circumstances govern the work of the judiciary, presuppose, of course, that the court maintain a certain distance between itself and the upheavals of the society in whose service it works. But the profoundly social nature of that function at the same time implies that a court must constantly be alert to the problems of that society, and remain in contact with those who are subject to its jurisdiction. I therefore wish to express my sincere thanks to the Assembly -- which is not only the major plenary organ of our Organization, but also the cradle of international democracy -- for having again this year been willing to set aside a little of its precious time for the President of a Court which is open to all the States of the world and which exists to deal with all the legal questions those States may wish to submit to it.

I am all the more aware of the privilege I have in addressing this body today, in that it has elected to the presidency of the Assembly an illustrious individual, His Excellency Tan Sri Razali Ismail, to whom I extend my warmest congratulations. Let me tell you, Sir, what great hopes your election raises for the international community, which is honoured to welcome you to this eminent post. Your brilliant diplomatic career has enabled you to become acquainted with many of the peoples of the world, who are now placing a very special trust in you, because they know that you understand all their diverse aspirations. The noble struggle in which you have engaged over the years for the promotion of human rights, the development of peoples and respect for the global environment compels our admiration. As a citizen of Malaysia, you are also a symbol of a nation which has achieved an exemplary blend of rich, age-old traditions and a modernism as courageous as it is effective in the promotion of economic renewal and social well-being. The International Court of Justice is especially delighted by your election since you recently did it the honour of testifying, most masterfully, before it regarding the grave concerns of your people -- of so many peoples -- about the threat and the use of nuclear weapons. I am convinced that, with the ideals which have always guided your actions, and with your particular talents and experience, you will successfully fulfil the exalted mission which the international community has this year entrusted to you. I wish you every success in this difficult enterprise.

In 1994, I shared with your Assembly some reflections on the role of the International Court of Justice in the general system for the maintenance of peace established by the Charter. Last year -- the fiftieth anniversary of the United Nations and thus a year of stock-taking -- I followed up on those reflections by attempting to sketch the future of the Court, taking account of its various achievements. I should now like to complete this triptych with some considerations on the difficulties encountered by the Court in the performance of its truly unique mission in the service of peace. The wealth of its achievements throughout the past half-century and the very evident revival of interest shown in it in recent years should not cause us to lose sight of the constraints under which it operates. A proper perception of those constraints seems to me essential to a solid understanding of the work of the Court and thus to the strengthening of that work.

The International Court of Justice is a component, as members are aware, not only of the machinery created by the Charter for the peaceful settlement of disputes, but also of the general system for the maintenance of international peace and security. The Court is the principal judicial organ of the Organization, and, as such, its responsibilities are considerable. While it does not bear exclusive responsibility for the peaceful settlement of legal disputes, it does in a way bear the principal responsibility. For successfully carrying out the tasks thus incumbent upon it, it has at its disposal two instruments: the contentious procedure, at the end of which the Court settles the dispute submitted to it by handing down a judgment that is binding on the parties; and the advisory procedure, at the end of which the Court may respond, by rendering an advisory opinion, to a legal question put to it by an organization authorized to do so. The contentious procedure would seem to be the pre-eminent peacemaking instrument available to the Court. I have already had occasion to stress the advantages for this purpose of the advisory procedure. Apart from the fact that it can be an effective instrument of preventive diplomacy, the advisory procedure may make a substantial contribution to the solution of a dispute that already exists. It can moreover provide the Court with an opportunity to deal with some of the major questions under discussion by the international community. There is scarcely any need for me to refer at this juncture to the momentous issues which, both from the standpoint of the development of the law and from that of world peace, are at stake in advisory proceedings such as those instituted by this Assembly with respect to the Legality of the Threat or Use of Nuclear Weapons.

The International Court of Justice is endowed with both a privileged institutional status and procedural instruments whose potential is frequently underestimated. Nevertheless, its action in the service of peace faces certain limitations over which it has scant control. Some of them are structural, deriving from the very essence of the function of courts and also from the essence of contemporary society in the service of which international courts work. The other limits are circumstantial and relate, inter alia, to the material resources made available to the court. While the former limitations are constant, being structural, and in principle could be removed only at the cost of a distortion of the judicial function or a profound transformation of the political environment in which it is performed, the latter are reversible, but have the drawback of being extremely unpredictable.

Let us first consider the structural limitations. The function of a court might be said to be to restore peace by applying the rule of law in relations between those subject to jurisdiction. There is no disputing the pre-eminent role of the rule of law as a factor for harmony and stability in any society. The law is always an instrument and never an end in itself. But it is an indispensable instrument in terms of ordering relations between the various component of society with a view to attaining the objectives sought by that society, given the changing system of values of that society. It is therefore a truism to assert that by endeavouring to achieve respect for the rule of law in relations between its subjects, a court is playing the role of peacemaker which is essential to the promotion of the social good. In this sense, it is not incorrect to say that a court's function is "political", which does not mean -- and this must be stressed -- that it can be in any way partisan. It is "political" in the sense that the court is one of the protagonists contributing to the building of human society. However fundamental it may be, the action of a court cannot, however, serve as a panacea for the many and varied ills that may afflict a society, for a whole range of reasons.

In the first place, there are many disorders or imbalances which, by their very nature, substantially -- if not totally -- elude the grasp of the law, and hence of the courts. Even the most advanced societies cannot be completely "juridicized". The law cannot claim by virtue of its essential instrumental dimension to understand all aspects of reality. In any society, there are tensions, some more diffuse or apparent, chronic or acute than others, which pose a threat to the social order when they have no clearly defined object. Such tensions, which moreover cannot be left unchecked, inherently elude application of the rule of law, which thus appears unsuited to the task of controlling them. As for more clearly characterized disputes, their complexity is frequently such that, even when they have a legal dimension, tackling that dimension by judicial means -- useful though this exercise may be -- is not enough to settle them, or even to mitigate them.

The peacemaking function of courts thus encounters its first limitation in the inevitable limits on the degree to which the law permeates social relations and on its effectiveness. Admittedly, although the law never exhausts reality, the place it occupies in the range of societies varies enormously. This place depends on the social reality of which the law forms part: in other words, on a given social milieu, with its ethical imperatives and its political, economic, cultural and other factors. The frequency and impact of the crises which in this way escape the benefits of court intervention are themselves determined by the state of that social milieu.

In the international order, the social fabric is less impregnated by law than it is in the domestic order. Because international society is less integrated, legal relations in it are weaker, even cruder. It scarcely needs to be recalled that today this society is still strongly marked by the "horizontalism" stemming from the coexistence of State sovereignties. In the absence of a universal legislative power which, through general channels, would lay down rules corresponding to the reconciled needs of all the actors in international life, the law of individuals continues to be the direct product of its subjects, all of whom, through State voluntarism, retain control of that part of international law whose application to themselves they accept. There is no doubt that this singular situation, in which the creator of the rule of law is also its direct object, is less favourable to the development of a legal system which is "balanced", whether as regards its normative scope or the material content of its rules. It is no secret that the intensity and the object of the "legislative" actions of the subjects of the international legal order are too often still directly dependent both on the power and the interests of each of those subjects, or of the groupings that they form according to various criteria. International law, not yet a law of solidarity, remains simultaneously heterogeneous and fragmentary.

Here, therefore, is a further difficulty and a challenge for an international court, whose work in the service of peace is entirely dependent on the application of that law. However, I would add that, by a kind of paradox, this handicap under which the international judicial function labours at the same time confers upon it a quite specific social role. Indeed, since the subjects of international law are concurrently the creators and the objects of the rules of that law, in the vast majority of cases, it falls to them to interpret and apply those rules themselves. This being so, it seems somewhat unusual to submit legal disputes between them to a third party. When an international court is called upon to settle such disputes, its decision is thereby thrown into even sharper relief. All the actors on the international stage are then affected by the decision rendered, even if that decision is formally binding on the parties alone. This decision is all the more eagerly anticipated and then scrutinized as intervention by such a court remains the exception. This is still true even at a time when recourse to international courts is increasing, as it is for the International Court of Justice at present.

Without seeking to enter into doctrinal disputes regarding the incompleteness or otherwise of international law, I must note that, in the field of application of this law, there are quite remarkable contrasts of normative density. Although international law has shortcomings, or just uncertainties, it is undeniable that the weaknesses of the instrument are also inevitably the weaknesses of whoever is called upon to have recourse to it, even if they may also contribute to the importance of its role. I would add that the grey areas of the law of individuals may affect fields that are particularly sensitive for the peace and the future of the world.

The International Court of Justice experienced at first hand the anguish of these grey areas when at the request of the Assembly it considered the question of the Legality of the Threat or Use of Nuclear Weapons. While the imperfections of a legal order may make greater flexibility in the interpretation and application of the rule of law by a court acceptable, or even promote such flexibility, this does not mean that a court can take the place of the legislator. Indeed, the International Court of Justice said as much with the utmost clarity in paragraph 18 of the advisory opinion it delivered on the question I have just referred to, stating that:

"The Court ... states the existing law and does not legislate. This is so even if, in stating and applying the law, the Court necessarily has to specify its scope and sometimes note its general trend."

There are many systems of law which make it an obligation for a court to rule even when the law is silent or obscure, but at the same time prohibit it from legislating. By definition, the law cannot provide for every eventuality. Scarcely is it adopted than the courts are faced with a thousand and one problems. The function of the courts consists, precisely, in translating the law into action by imbuing themselves with its spirit, by applying its general precepts to the particular circumstances with wisdom and discernment and, in cases which it has not resolved, by completing the law through so-called doctrinal interpretation. The administration of justice would clearly be impossible if courts were to refrain from ruling whenever the law is obscure or incomplete. What, on the contrary, courts are forbidden to do, because this does not fall within their functions, is to interpret authoritatively, in other words to reply to the essential doubts -- or even to a legal vacuum -- by creating a new norm. The creative power of courts, as expressed in their jurisprudential function, is in a relation of dependency as regards the various formal sources of law. It has sometimes been said that courts must compensate for the shortcomings of the law but cannot fill the lacunae of the law. When the law itself makes it impossible to reply in whole or in part to a question submitted to a court, the court's duty consists in and is limited to registering that state of affairs, however disappointing this may seem.

By virtue of the very structure of international society, only States, in an elevated and responsible conception of their sovereignty, can remedy such a situation by speeding up the construction of international law. In this respect, the International Court of Justice can but hope for an expansion and an improvement in the legal bases of its function. Pending that development, the Court's task may in many ways appear thankless but this does not mean that it therefore ceases to be useful -- far from it.

In order properly to assess the contribution of courts to social peace, it is not enough to take into consideration the potentialities or the limits of the rule of law which it is their task to apply. For indeed there are other characteristic elements of the judicial function which, although elementary, are nonetheless fundamental: Regardless of the legal order in which they operate, courts can act only when requested to do so and, as a rule, they only intervene a posteriori.

Courts are always seized of a matter; they never seize themselves of it. In this respect particularly, their function is distinct from that of the executive. Although that is the well-established principle, the ease with which courts may be seized of a matter as well as the effects of the seizure, nevertheless vary appreciably from one legal order to another.

In this respect too, access to courts in highly integrated societies is almost automatic. Not only are courts competent a priori, but if the interests of society as such are challenged, society has adequate means at its disposal for initiating corrective measures, by itself seizing the courts of a matter by taking legal action. In the international order, however, there is nothing comparable. Respect for the sovereignty of States is echoed in the cardinal principle of consensualism. No State can be made subject to the verdicts of courts unless it has already agreed to do so. The International Court of Justice cannot be expected, in the manner of the Security Council, to entertain all the disputes likely to pose a threat to international peace and security. The Court can intervene only at the request of and with the consent of the interested parties. However, this structural limitation, which hampers the Court's action, may be partly removed. Progress towards this end is possible. It probably requires a more permissive approach to the Court's jurisdiction, more limited use of preliminary objections by States engaged in proceedings, a less lax conception of State consensualism and, finally, a clearer perception by all States of the advantages they may jointly derive from submitting their disputes to the Court.

Furthermore, whereas in vertical societies, the rulings of courts are not only compulsory but also enforceable, in the international order, the absence of executive power essentially leaves it to the legal subjects themselves to ensure that legal decisions are respected. The Covenant of the League of Nations and then the Charter of the United Nations sought to offset the potentially dangerous effects of this situation in which self-help prevails. In this respect, Article 94 of the Charter contains a number of weaknesses that must be admitted, such as the fact that intervention by the Security Council is subordinated to a request by one of the parties. Also, the Council is given very wide discretionary powers. It may, says the Charter, act if it deems necessary. However, it gives me pleasure to note that, fortunately, the judgments of the International Court of Justice have in the past been scrupulously respected.

The fact nevertheless remains that the formal limits placed on the seizure of the International Court and on the execution of its rulings render its task all the more difficult when it has to act in a crisis situation. This, therefore, further limits its contribution to the maintenance of peace.

A moment ago I referred to another element of the judicial function, which is as characteristic as it is constant. It is the functions of courts to heal rather than to prevent. Contrary to those of the legislator or the executive, the decisions by which courts perform their functions are decisions a posteriori. Contentious jurisdiction presupposes the existence of a dispute and, in most legal systems, the party that appears before a court must prove what is commonly termed an "an existing and pending interest". From that standpoint, the function of courts is more to restore than to maintain peace. The way they function is rendered all the more delicate because, as is the case in international society, this function does not form part of a structure that has an executive machinery. In this respect, the wholly unique nature of the advisory proceedings before the International Court of Justice, whose preventive virtues no longer need to be demonstrated, should be stressed once again.

In addition to these constraints which I have termed "structural" because they are inherent in the function of courts or in the present state of international society, there are some others which are by no means necessary. I refer in particular to all those related to the material resources which society places at the disposal of courts to enable them to fulfil their task. What resources are provided is essentially dependent not just on the prevailing economic situation but also on the prevailing political situation. Indeed, the resources allocated to courts vary markedly from one society to another -- and even within a given society, they vary from one period to another -- depending on the importance of the role courts are recognized to have in each of those societies and on the resources at their command. Unfortunately, the judge is often the poor relation in our societies, and all too often only through crises highlighting the impecuniosity of the judicial apparatus can the parsimony of the budgetary authorities towards it be overcome. But justice can obviously be sound only if it has a minimum of resources with which to operate, and on a permanent basis.

In its report to the General Assembly it is not customary for the International Court of Justice to mention the material difficulties it encounters in performing its duties. For the first time, it has this year been compelled to do so. The gravity of the situation left it with no alternative. In fact, however, there is nothing strange about this, since Article 33 of the Statute of the Court states that

"The expenses of the Court shall be borne by the United Nations in such a manner as shall be decided by the General Assembly".

It was therefore most certainly the Court's duty to draw the attention of the Assembly to a situation which seriously imperils the very discharge of the Court's duties. It is not appropriate for me, in this forum, to go into this matter in detail. It is considered at some length in chapter IV of the Court's report. Suffice it to say here that the Court voices the fear that the reductions in resources required of it are "beginning to curtail its established levels of judicial service" (A/51/4, para. 185) and are engendering "delay ... in discharging its duties" (ibid., para. 188). Among other things, the Court states that

"The reality is that the funding of the Court falls considerably short of what is required for it to fulfil its functions ...

"The costs to the Court of ensuring that a case is fairly and impartially heard may not be sufficiently appreciated ... Yet it has always been recognized that the Court cannot render justice without performing those tasks, and it falls to the United Nations to provide it with the requisite means." (ibid., paras. 189-190)

I would like to stress that it is a particular attribute of any responsible institution consciously to question the limits imposed on its actions. Such questioning is all the more essential for an institution which, like the judicial institution, performs a crucial social role. Indeed, all the beneficiaries of its work are entitled to know without any ambiguity what they can and what they cannot expect from it. It was in this resolutely constructive spirit that I wished to share these few comments. Let no one see them as betraying any apathy or any pessimism. Quite the contrary, I cannot conceal my outright satisfaction at being able to observe and to state that, notwithstanding all the constraints under which the organ of which I am President has to labour, its activity during the past year has been fruitful as never before.

During the period from 1 August 1995 to 31 July 1996, the Court rendered no less than five decisions in cases of extreme complexity. Contrary to its usual practice of considering only one case at a time, the Court, in order to bring off this tour de force, had constantly to deliberate on an average of three cases simultaneously. In response to the resumption by France of nuclear testing, New Zealand filed a Request for an Examination of the Situation in accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case. After hearings on whether the Request submitted by New Zealand fell within paragraph 63 of the 1974 Judgment, the Court found, in its Order of 22 September 1995, that it did not. It then held three weeks of hearings in October and November 1995 simultaneously on two well-known requests for advisory opinions, one filed by the World Health Organization on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, and the other filed by the General Assembly on the Legality of the Threat or Use of Nuclear Weapons.

An unprecedented number of States submitted written statements and took part in the hearings on what may be the most important questions ever put to the Court in advisory proceedings. The two Advisory Opinions, which required consideration of exceptionally difficult problems, were rendered on 8 July 1996. While considering these requests, the Court was also seized of a request for the indication of provisional measures in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria and issued an Order on that request on 15 March 1996. The Court also held hearings from 29 April to 3 May 1996 on issues of jurisdiction and admissibility raised in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), and delivered a Judgment on those questions on 11 July 1996.

Finally, since last month the Court has also been engaged in settling the case concerning Oil Platforms destroyed in the Gulf during the Iraq-Iran war, a case between the Islamic Republic of Iran and the United States of America.

In conclusion, I should like once again to stress that the place of the law and of courts in international society can only be consolidated, or even expanded, if members of the Assembly 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 acknowledgment of the new realities of human society. It is absolutely essential that this twofold condition be met if lasting progress is to be ensured in the development of a true community of law at the international level.

In closing my statement, I should like to voice the simple yet fervent hope that the Court may, against all odds, pursue its exalted work with pride and humility. This hope, I am sure, will be met if all the States represented here with such distinction and the Organization that unites us lend the Court their indispensable support.

Mr. Amorim (Brazil)

After President Bedjaoui's authoritative analysis of the political, sociological and even philosophical dimensions of international law and its application, it is best to be brief. I will aim to be so.

Mr. Amorim (Brazil)

I would like to start by thanking the President of the International Court of Justice for his informative introduction of the report on the Court's activity during the year of its fiftieth anniversary. The annual presentation of the report of the International Court of Justice to the General Assembly provides Member States with a unique opportunity to engage in a debate on the work of a principal organ of the United Nations known for its high professional standards. We avail ourselves of this opportunity to express our appreciation for the Court's important contribution to world peace and reaffirm our continuing support for its endeavours.

The increased caseload of the International Court of Justice in the past few years should be greeted as a sign of lasting relevance and renewed vitality. We would like to be able to interpret such a development as growing evidence of respect for international law and interest in judicial settlement as a means for the pacific resolution of disputes. However, it is perhaps still premature to reach such a conclusion.

The danger of a global conflagration seems to have diminished in our present international environment. But the preservation of peace and security has become a task fraught with new and complex challenges, given the recent emergence of a myriad of extremely violent localized conflicts. In discharging its responsibilities, the Security Council has often been pressed to improvise solutions, and in this process insufficient attention has been given to the tools provided by international law as consubstantiated in the Court's Statute.

All Members of the United Nations are, by virtue of their adherence to the Charter, also parties to the Statute of the International Court of Justice. This allows, in particular, for the establishment of a mutually reinforcing relationship between the Security Council and the Court. Whereas for several decades the work of the Security Council was hampered by the politics of bipolarity, the intensification of the Security Council's activity since the end of the cold war would seem to warrant closer cooperation between the organ charged with primary responsibility for the maintenance of international peace and security and the Organization's principal judicial organ.

The development of a closer relationship between the Court and both the Security Council and the General Assembly is worth encouraging as a way of strengthening the rule of law in international relations and giving full expression to the provisions of the Charter. In promoting such a relationship, it is worth recalling the provisions of Article 96 regarding the possibility, open to both the General Assembly and the Council, to request advisory opinions from the Court on any legal question.

Moreover, it has been suggested that, as the cohesiveness of the international community intensifies, the Court may be called upon to examine questions relating to the jurisdictional boundaries between the different organs of the system. Is it possible to envisage a future when the Court might have powers of judicial review over administrative actions or political decisions taken by another principal organ, or is such an evolution too far-fetched to be contemplated? The fact that this possibility was raised during a previous debate under this agenda item is indicative of the fertile ground open for further exploration, which could bring to fruition new and enhanced forms of integration of the main parts of our institutional system.

A landmark opinion was arrived at by the International Court of Justice as regards, inter alia, the existence of a legal obligation to negotiate in good faith measures of nuclear disarmament and bring those negotiations to a conclusion. This Opinion constitutes a new term of reference for the international community in favour of nuclear disarmament and provides the General Assembly with a valuable incentive to pursue its own efforts to eliminate nuclear weapons.

I would also like to stress the significance of the Court's action to promote harmonious integration in a part of Latin America which was, until recently, ravaged by strife. I am referring to the Judgment issued by the Court in connection with the land, island and maritime frontier between El Salvador and Honduras. The Court's treatment of this question has made an invaluable contribution to the subregion's stability, helping the two countries to liberate their creative energy to face the challenges of social and economic development while consolidating democracy.

Besides issuing advisory opinions and settling contentious cases, the Court has also demonstrated its ability to function as an effective tool of preventive diplomacy and could well acquire an enhanced role in this capacity in the years to come. The Court will be particularly well placed to promote understanding before passing judgment when it is seen as a partner in settling a dispute at an early stage in the process, rather than as a last-resort alternative.

As pointed out by Judge Mohammed Bedjaoui, whose inspired leadership at The Hague is highly appreciated by my authorities, legal settlement is perhaps more widely supported and more sought after when the international atmosphere is less tense. It is unfortunately also true that disregard for international law continues to threaten stability in many regions, while judicial forms of settlement are still widely underutilized.

Brazil has decided to present the candidacy of one of its most illustrious sons, a specialist in international law and diplomacy, a former Foreign Minister and at present a Supreme Court Justice, to one of the vacancies in the Court. This decision reflects my country's belief in the Court's central standing within the institutional framework of the United Nations, as well as its desire to help promote an effective international legal order in a world scenario which offers new hopes for peace and understanding among nations. This decision represents an expression of faith in the future role of the Court and a determination to participate to the best of our ability in strengthening multilateralism.

The President

I should like to propose that the list of speakers in the debate on this item now be closed.