The United Nations General Assembly Resolution
Hon. Chief Justice, in order to understand better what is a United Nations General Assembly resolution, it would be ideal to start by providing you with a short and background information on the General Assembly itself.
The United Nations General Assembly is one of the five principal organs [20] of the United Nations and the only one in which all member nations have equal representation. This means, that since there are 192 member states in the United Nations, each and one of them is a member of the General Assembly. Each member of the General Assembly has one vote and important matters such as the elections of members, peace and security, budgets, and the suspension/discharging of members, is done by a two-thirds majority of those present and voting. Other recommendations which are considered to contain less weight, are decided by a majority voting.
As stated in the official website of the UN, the General Assembly meets under its president or secretary general in regular yearly sessions, the main part of which lasts from September to December and resumed part from January until all issues are addressed (which often is just before the next session’s start). It can also meet for special and emergency issues.
The Presidency rotates annually and the President is voted for by the same members of the United Nations. It is customary that the largest and most powerful countries, such as China, do not hold the presidency. On the other hand, countries such as Luxemburg and Switzerland, although small, had the presidency in the 1970’s. It is therefore important to point out that even Malta held the Presidency back in the 1990, when the general assembly elected Dr. Guido De Marco as president of its forty-fifth session. Although the power of the President is limited, he may accomplish much through his personal influence and political adeptness. [21]
The UN General Assembly Resolution
The General Assembly votes on many resolutions brought forward by member states. It is interesting to appreciate that since 1945, at least 9229 resolutions spanning a vast and varied range of international issues have been adopted by the General Assembly. [22]
Whilst this record of the General assembly’s formal concern, considerations and expression of views is indeed impressive, the fact remains that, except for budget and membership questions, General Assembly resolutions are not legally binding on member states. [23]
The legal competence of the General Assembly to consider legal matters flows from the UN Charter. Article 10 gives the General Assembly the authority to discuss and make recommendations on any matter within the scope of the Charter, either to the United Nations membership generally or to the Security Council in particular. [24]
In addition, the charter imposes two major restrictions on the General Assembly’s powers to discuss and make recommendations. The first is embodied in the principle set out in Article 2, paragraph 7 of the charter, which prohibits the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state and the second restriction is found in Article 12 of the Charter, which states that the General Assembly shall not make any recommendation while the Security Council is exercising its functions in respect to any international dispute.
However, although this might suggest that the General Assembly has no powers at all, resolutions have frequently been the origin of multilateral treaties drafted and promulgated under UN auspices. [25] General Assembly declarations had sometimes evolved into conventions adopted by the international community. Prominent among these declarations are those dealing with the use of forces back in the 1960’s. [26]
Hon. Chief Justice, it is therefore important for you to know that back in the 1970’s Malta was also involved in a very important resolution, embedding principles related to the seabed and its resources. In fact, it was Arvid Pardo, a Maltese diplomat, who initiated a fifteen year process which led to a near-unanimous passage of General Assembly Resolution 2749 [27] . The principles brought forward in the resolution were later incorporated in the ‘Law of the Sea Convention’. This eventually proves that although resolutions are not binding, they may influence the nature and substance of international law in many ways and may also have legal force if they are regarded as statements of customary international law.
The General Assembly thus is not a World legislature. It does not codify laws or norms even though they are adopted unanimously and without any formal opposition. General Assembly resolutions are merely recommendations however the General Assembly can function as an instrument to collect and shape up into tangible form the international community’s customary norms.
State practice then becomes the main factor determining whether General Assembly resolutions give rise to new norms of international law or remain merely recommendations. Such new norms subsequently are codified into recognized principles of International Law through the promulgation of special conventions adopted by the General Assembly and approved by the required number of parties.
A Treaty to Which only one of the parties to the dispute is a party
A treaty is an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation [28] . They are generally held to be an ever-increasingly important source of international law and are a key towards the ends of developing a system of peaceful cooperation amongst states irrespective of their domestic legal particularities [29] . Since 1945, over 33,000 treaties have been deposited with the UN [30] .
In Art.38(1)(a), the Statute of the International Court of Justice makes reference to ‘international conventions’ establishing rules which are expressly recognised by the contesting states which may either be general or particular in their application. This article gives a very wide definition which seems to include not only bilateral and multilateral treaties but also any form of international agreement in any form.
It often happens that the language of a treaty which is presented before the court as a document containing rules recognised by the states in dispute is not always manifestly clear and precise as to make it clear whether such treaty is actually applicable to the circumstances of the case. The court will proceed to interpret the instrument, therefore determining its scope and effect and applicability to the dispute in question. According to Art.36(2)(a) of the Statute of the ICJ, states may at any time and by common accord, recognise as compulsory the jurisdiction of the court in the resolution of several legal disputes which might arise between them, amongst these, the Statute mentions the interpretation of a treaty. In any case, the Vienna convention lays down that treaties must always be interpreted in good faith and in accordance with the ordinary meaning of the words contained within, given their context within the treaty [31] .
The norm in public international law is that a treaty creates rights and obligations only between its parties, therefore third party states are not bound by any treaty which they have not individually entered into. This notion is best expressed by the maxim pacta tertiis nec nocent nec prosunt [32] . Art.34 of the Vienna Convention states that ‘a treaty does not create either obligations or rights for a third state without its consent’. This reasoning had already been confirmed in the earlier case dealing with the German Interests in Polish Upper Silesia [33] back in 1925. In this case, the PCIJ stated that ‘a treaty only creates law as between states which are parties to it; in case of doubt, no rights can be deduced from it in favour of third states’.
There are however some slight exceptions to this otherwise general principle. A norm which was originally confined to a treaty between a limited number of states may eventually become part of international custom through state practice and therefore achieve general application [34] .
The position at international laws appears to be clear enough in regard to cases where obligations are imposed on states which are merely third parties two treaties entered into by other states. The situation may tend to differ in cases which concern the granting of rights to third parties. The question is over when, if at all, such a ‘right’ becomes complete and enforceable by the third party state. According to Brownlie and McNair amongst others, ‘the general rule is that the third state only benefits in this sense if it expressly or implicitly assent to the creation of the right’. [35] The corollary is that the third state may refuse the right either explicitly or else simply by failing to exercise the alleged right. On the other hand, if a third state has accepted a right, the right cannot be revoked by the actual parties to the treaty if it can be established that the right conferred was not originally intended to be revocable, save the third states freedom to consent to such revocation or limitation [36] .
Strictly speaking, in the case brought before Judge George the matter of there being a treaty to which only litigant (A) is a party does not have a bearing on the relationship between states A and B in litigation since B is clearly a third party to the treaty and is therefore outside the scope of any rights or obligations created or conferred by the treaty provided that B had not consented to any obligations created by the treaty or else accepted any rights arising from the same.
A statement by the foreign minister of one of the parties
Parliamentary statements are one of the modes to detect a state practice and the position a state takes in the international plane. The foreign minister on a number of occasions may be asked to elucidate the state’s position on a particular issue of an international concern, thus parliamentary statements, can evoke a particular state practice. A state practice is a general practice which is normally accepted as law.
The other limb is that this state practice must be accepted as law and this is what we call “opinio juris sive necessitatis”. This opinio juris sive necessitatis is what authors refer to as the psychological element of states, this is because the state practice has to be accompanied by the intent which represent why the state acts in that particular manner. This means that parliamentary statements and therefore minister’s statements in the international court of justice reflects and determine the state practice and what it’s position is.
The Position of the Minister in the ICJ
Another important thing that we must notice is that the International Court of Justice deems the position of foreign Ministers to be of a very important nature. This is illustrated in Belgium VS Congo delivered by the International Court of Justice on 14th Febuary 2002 where it implied that customary international law grants to foreign ministers as long as they hold their office the advantage of absolute jurisdiction and inviolability. The reason behind this is for the international court of justice to ascertain performance of the very importatnt functions that foreign ministers excercise when they represent their states. This clearly points out that the international court of justice gives a lot of importance to the position of the foreign minister in the international court of justice but the question that arises is ‘Does it give the same importance to their statements?’