The UN Charter Cannot Support GA Resolution 377

Eli. E. Hertz, MYTHS AND FACTS

The Jerusalem Post published on March 25, 2011: Israel “only just found out” about Resolution 377. This “just found topic” has been covered by me in various publications since 2004. The responsibility to act on it was and still is the business of the Government of Israel and its UN representatives.

ICJ – Bypassing the UN Security Council

In an odd conclusion, the ICJ ‘found’ in this case [Advisory Opinion] a “failure of the Security Council to discharge its responsibilities [E.H., without any reference to law] then in defiance of the limited powers delegated to it by the UN Charter, by-passed the Security Council’s powers and responsibilities.

Bypassing the Security Council is part of a broader campaign that should alarm all members of the Security Council, and the United States in particular. Nabil Elaraby, the Egyptian member of the ICJ Bench, openly advocated two main vehicles for institutionalizing it:

    “The United Nations membership should, in my view, address ways and means to render the Security Council (a) accountable to the General Assembly, and (b) subject to the possibility, however remote, of a judicial review process.” And according to Gregory Khalil, the PLO legal advisor in the security barrier case, the ICJ consciously sought to engage the United States in a “Tango of mutual deterrence” and “chart a path for the international community to counter the United States “veto power.” The significance of the ruling cannot be overstated, he underscores: It challenges the power of the veto and the Security Council’s management of “threats to world peace,” using the International Court of Justice’s interpretations of the rule of international law in matters of ‘threats to world peace’ coupled with claims that the international community is obliged to support its rulings and calling for sanctions – decisions that under Chapter VII of the UN Charter is the sole prerogative of the Security Council. Khalil calls this strategy “vetoing the veto.”

The “Advisory Opinion” signed by the Court’s president, Shi Jiuyong from China, constitutes a profound corruption of its mission and one with seismic implications for the future of international law. It threatens the security of America and its allies on three levels: first, in its groundbreaking attack on the ‘right to self-defence,’ proscribing an almost blanket prohibition of use of lawful force. Second, it erroneously adopts the exclusive powers granted to the Security Council by the United Nations Charter, a move that will render the Security Council ineffective, and third, in the willingness of the Bench to allow its chambers to become a political instrument and to abandon all semblance of fairness or professionalism, all for political gain.

The threats to the free and democratic states consequently demand a far more serious, systematic and frank response, including a willingness to challenge the competence of this Court. Attempts to shield the International Court of Justice from this disgrace out of concern for its perceived reputation and effectiveness are short-sighted. At all too many junctures it appears that the ICJ’s conclusions are based solely on ‘gut feelings’ and unsubstantiated assumptions – almost taking a leap of faith based on a mixture of personal and collective prejudice and popular opinion.

The Legal effect of UNGA Resolution 377

Article 10 of the United Nations Charter States:

    “The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters.”

The UN Charter does not grant the General Assembly or the International Court of Justice (ICJ) the authority to enact or amend international law. The General Assembly actually lacks the competence to enact general international law. One may easily reach the conclusion that UN member states act on the basis of political concerns, not on fair or legal ground.

Professor, Judge Schwebel, former President of the International Court of Justice stated:

    “The General Assembly of the United Nations can only, in principle, issue ‘recommendation’ which are not of a binding character, according to Article 10 of the Charter of the United Nations.”

Schwebel also cited Judge Sir Hersch Lauterpacht, a former member judge of the International Court, who stated:

“The paramount rule of the Charter is that the General Assembly has no legal power to legislate or bind its members by way of recommendation”

Yet another former ICJ judge, Sir Gerald Fitzmaurice, was as resolved in rejecting the “illusion” that a General Assembly resolution can have “legislative effect.” Referencing Professor Arangio-Ruiz’s work: “The Normative Role of the General Assembly of the United Nations and the Declaration of Prin­ciples of Friendly Relations,” Professor Julius Stone called it “perhaps the most comprehensive and up-to-date treatise on this matter” … he [Professor Arangio-Ruiz] is led to conclude that the General Assembly lacks legal authority either to “enact” or to “declare” or “determine” or “interpret” international law so as legally to bind states by such acts, whether these states be members of the United Nations or not, and whether these states voted for or against or abstained from the relevant vote or did not take part in it.

Article 12 of the United Charter states:

    “While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.

    “The Secretary-General, with the consent of the Security Council, shall notify the General Assembly at each session of any matters relative to the maintenance of international peace and security which are being dealt with by the Security Council and shall similarly notify the General Assembly, or the Members of the United Nations if the General Assembly is not in session, immediately the Security Council ceases to deal with such matters.”

The free and democratic world needs to ‘rein in’ the appetite of the General Assembly and to demand of the International Court of Justice not to step beyond its mandate, and respect and obey international law as set forth in the United Nations Charter.

April 5, 2011 | 6 Comments »
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  1. Wiener

    Come September the majority of the world will recognize an independant Palestinian state. Should Israel set up any barriers to this measure,you may be sure that EU will impose serious economic sanctions. Most experts maintain that Israel will certanly survive , but will be paying a very high price in reduced exports and will most likely experience a recession.

    MEDIUM AND LONG TURN CONSEQUENCES – A NET POPULATION OUTFLOW, POLITICAL INSTABILIY AT A VERY DIFFICULT TIME FOR ISRAEL.

    The Bibi gov’t blew it and blew it badly. Sabataging the negotiations with the Pals is now turning out to be one of the most disasterous errors made by any Israeli administration. And in the past there were many.

  2. Since the UN has been hijacked by Islam, all sorts of anti-Israel resolutions have been expelled in a flood of political diarrhea. According to Wikipedia the International Court of Justice has over 50 Islamic members out of a total of 114 member states. The Rome Statute, adopted by the court on July 17, 1998, defined wars without international legality (e.g., not out of self-defense nor sanctioned by the United Nations Security Council) as crimes of aggression. This ambiguous definition led 34 countries including Russia to sign but not ratify the Rome Statute. The law of treaties obliges these states to refrain from “acts which would defeat the object and purpose” of the treaty. Three of these states—Israel, Sudan and the United States—have “unsigned” the Rome Statute. Rescinding their membership also abrogates any legal obligations arising from their former status. Unfortunately many of the other member nations of this august body live in fear of their lives from the Muslim immigrant populations that have virtually taken over their actual governing functions. Add to this poisonous mix a noxious dose of anti-Semitism, evident in national and global media and academia, and you have a recipe for global conquest and occupation.

  3. The problem with UN, EU, and US officials is they are not interested in legality at all. They have military and judicial power to do anything they please to do. In other words, we have global totalitarian, fascist style system. It cannot be destroyed by legal means. It can only be eliminated by force.

  4. As I have written on Israpundit before, International law is on Israel’s side as the San Remo Conference in 1920 ratified the League of Nations Mandate acceptance of the Balfour Declaration. Even the US which was not a member of the League of Nations signed onto the San Remo Conference agreement. (Israel should stand up for Jewish rights -to paraphrase Hillel: “If Israel is not for itself, who will be for Israel.” : The following is from http://www.justicenow4israel.com/balfour.html :
    The Balfour Declaration, Nov. 2, 1917 is often called the Magna Carta of the Jewish National Home. It must be made clear, that though the Balfour Declaration listed rights that the British Government recognized in Palestine for Jews and non-Jewish residents, the declaration, in itself, is not a legally binding document. However, the Balfour Declaration was adopted into the Mandate for Palestine. At that point, the declaration was transformed from a policy of the British using “their best endeavours to facilitate the achievement…the establishment in Palestine of a national home for the Jewish people” to becoming a legal obligation.

    The San Remo Resolution (April 25, 1920) and the Mandate for Palestine (July 24, 1922), transformed the Balfour Declaration into Law.

    On December 3, 1924, the United States and Great Britain signed a treaty that incorporated the text of the Mandate for Palestine. The 1924 Anglo-American Treaty not only protected the rights of Americans living in Palestine under the Mandate, but it also made the rights and provisions part of United States treaty law. Furthermore, those rights are protected under constitutional law, as the Constitution calls a treaty the “Supreme Law of the Land.” The treaty also obligated the British to consult with the United States before making any policy changes to the Mandate. It should be noted that the Mandate was authorized by the Supreme Council of the Principal Allied Powers and neither the British nor the Americans had any legal right to make any changes that alter the rights granted through the Mandate.

    The U.S. Senate advised ratification of the treaty on February 20, 1925. It was then ratified by President Calvin Coolidge on March 2, 1925 and ratified by Great Britain on March 18, 1925. Ratifications were exchanged in London on December 3, 1925.

    The treaty is also known as the Anglo-American convention, the American-British Palestine Mandate Convention, the Convention Between the United Kingdom and the United States of America Respecting the Rights of the Governments of the Two Countries and their Respective Nationals, and the Palestine Convention. [Howard Grief, The Legal Foundation and Borders of Israel under International Law (Jerusalem, Israel: Mazo Publishers, 2008), 195-199.]

  5. Bottom line: It’s all about oil and the policy of Balkanization the ME. Any leader not playing ball with Washington and the British will be removed and their countries broken up into satraps controlled by Washington and key Europeans, directly or through installed puppets.

    They aren’t even being subtle about it.

    Who politically are the 50% of Americans who support the war against Libya?

    The answer should give most of the so called conservatives who think the Republicans will be better than the Democrats. Oil and Greed rule no matter how it’s wrapped.

  6. UN..America…Libya: Lessons for Israel

    Tripoli, the new Troy (Odyssey Dawn)

    Odyssey Dawn slogs on – a tawdry “kinetic military action” (as per the White House) worthy of the Pentagon’s resident Homer. The stalemate on the ground could go on for weeks, if not months. This is more like The Iliad remixed – remember, the Trojan War slogged on for 10 years without a decisive result. America is bewildered. A new Associated Press-GfK poll found the country is split; 48% are in favor of the “kinetic military action” in Libya, 50% are against it.

    Gaddafi is no king Priam. And Saif al-Islam Gaddafi is no Paris (although, in the absence of Helen, he did seduce the London

    School of Economics). Khamis Gaddafi is no Achilles – perhaps a minor Ajax (gigantic, great courage but dull of intellect).

    Priam was a wise prince – while Gaddafi is wily. Priam strengthened the state by good governance (Machiavelli would have approved) and alliances with his neighbors, while Gaddafi governed by playing the tribes against each other. There’s not a shade of Hector – a noble character – in sight.

    One may wonder which gods and goddesses – apart from Athena – are as interested in this war as the parties themselves. One of Troy’s crucial allies was Penthesilea, the queen of the Amazons with her band of female warriors. In the Pentagon remix Penthesilea shifted to the opposition, played by Secretary of State Hillary Clinton and her combat warriors United Nations Ambassador Susan Rice and National Security Council aide Samantha Power.

    Arab liberator French President Nicolas Sarkozy is no Menelaus; his Helen – Carla Bruni, who used to cavort with Bacchic Mick Jagger – would rather mingle with the Vogue crowd than sulk in a tent in the desert. British Prime Minister David Cameron is not exactly Agamemnon. As for Silvio “Bunga Bunga” Berlusconi, the Italian president is just a satyr who escaped from an Aristophanes comedy. Read More