In this chapter we consider the main multilateral diplomatic processes through which most modern international law-making takes place. These include not only intergovernmental organisations such as the United Nations, but also commissions, conferences or meetings of the parties to multilateral treaties (COPs/MOPs), and ad hoc negotiating conferences, of which the 3rd UN Conference on the Law of the Sea (UNCLOS III) and the 1998 Rome Conference to adopt the Statute of the International Criminal Court are the leading examples in modern times. In the century and a half following the Congress of Vienna ad hoc conferences of this kind became the main mechanism for negotiating and adopting multilateral treaties and declarations. They remain an important feature of contemporary international diplomacy, although the UN and other international bodies have to some extent taken over their role.
The processes considered in this chapter have certain common features. They are all primarily political in character; they mainly operate through ‘quasi-parliamentary procedures’,1 usually affording a significant degree of deliberation and transparency, and in most cases their voting membership is dominated by and generally open only to states or quasi-state entities.2 This does not preclude the involvement of legal and technical experts, whether on an ad hoc basis, or through permanent bodies such as the International Law Commission (ILC) or the UN specialised agencies, and we explore several examples later in this chapter and Chapter 4. Nor does it mean that other entities do not participate in other ways. On the contrary, as we observed in Chapter 2, one of the most striking features of modern international law-making is the interaction of states, intergovernmental organisations (IGOs), and non-governmental organisations (NGOs) in what have been variously described as ‘epistemic communities’ or ‘transnational networks’ of officials, experts and interest groups whose quasi-autonomous character allows them to constitute a broader international community than the states that nominally make the decisions.3 Through such bureaucratic networks states and other actors seek to accomplish in cooperation what formerly was undertaken on a narrower basis.4 Understanding the role of such groups contributes to an awareness of the multiple influences on the politics of international law-making, and also helps explain why some states sometimes appear to have more or less influence on outcomes than their relative size or importance might suggest. Participation goes directly to a central question: who makes international law? Is it only a community of national governments, or a transnational epistemic community of experts and diplomats, or a broader community including NGOs or other representatives of civil society and operating beyond or across national borders? We addressed this question mainly in Chapter 2, but the numerous examples noted in this chapter show how significant the broadening of participation considered there has become.
Simply put, a law-making process perceived as illegitimate by states and other relevant actors is more likely to be an ineffective process, which either fails to make law at all or which undermines the likelihood of compliance with adopted rules or standards. An important question posed by any examination of international law-making structures therefore is the extent to which we can make judgments about their legitimacy and in what terms. In this context legitimacy becomes a critical issue once international institutions acquire power to take decisions binding on states without their specific consent, and more especially so when those decisions amount in effect to legislating for all states.5 Nevertheless, the consent of states is increasingly attenuated by the scale and scope of law-making by multilateral institutions, and by some of the methods they employ. As Franck observes: ‘It is only by reference to a community’s evolving standards of what constitutes right process that it is possible to assert meaningfully that a law . . . is legitimate’.6 Brunnée and Toope argue that periodic meetings of the parties to multilateral treaties—and by extension the argument must also apply to IGOs and law-making conferences such as UNCLOS III—constitute ‘ongoing, interactional processes’, and that ‘It is this broader process and not the formal act of consent that infuses the legal norms generated within [a multilateral agreement] with the ability to influence state conduct’.7 From that perspective legitimacy is essentially a sociological question about the process of law-making—the way law is created—rather than the outcome of the process. Moreover, if general law-making is the product of interactive processes, then the question who participates in these processes assumes added importance. Finally, Brunnée and Toope’s argument points additionally to the conclusion that norms do not necessarily have to be adopted in binding form to influence or contribute to law-making. We return to this important issue in our discussion of soft law in Chapter 5.
Most of the law-making processes we consider in the following sections are also deliberative to some degree, although rarely to the same extent as is evident within the ILC. Deliberation is an essential lubricant of any law-making process because it facilitates discussion, negotiation, compromise, persuasion, influence and participation. It is what allows participants a voice, whether or not they also have a vote. Just as importantly, contemporary international law-making has also become generally more transparent than in earlier times. This is partly a consequence of wider participation, but it also reflects a significant change in the way governments and international organisations view their role as international law-makers. In that sense the system as whole has come a good deal closer to Woodrow Wilson’s classic prescription of ‘open covenants openly arrived at’,8 although there remain significant exceptions, most notably the Security Council. Our study suggests that international law-making in general is more open and transparent than some aspects of European Union law-making.9Moreover, in the authors’ experience it is often easier to understand the inner workings of a multilateral treaty negotiation than to find out who or what has influenced national legislation or how it has evolved.
Although international law-making often proceeds within the constitutional structures of international organisations, international law itself lacks an identifiable constitutional structure.10 The law-making system is eclectic, unsystematic, overlapping, and often poorly coordinated. The UN is a central element, but by no means the only one, nor even the principal one in certain contexts, such as international economic law. Moreover, the UN is not a coherent whole but comprises multiple organs, specialised agencies, working groups and programmes which operate through various procedures and mechanisms. Constitutionalism, however defined, is not the most obvious perspective from which to address legitimacy in this fragmentary setting, and we have not focused on it as a major element of our analysis.11 This is not to suggest that we should overlook academic debate about the constitutionalisation of particular institutions, most notably the WTO, and we return to the question in that context. Nevertheless, it is worth emphasising that our focus is on the international law-making process in general, and on how specific institutions function as part of that process. We do not view any of these bodies, including WTO, as having become part of some separate constitutional order. On the other hand the existence of multiple institutions promoting international law-making within their own specialised areas poses an obvious challenge for the coherence and integrity of international law, and we consider this crucial question both here and in subsequent chapters.
A further perspective on legitimacy is offered by the notion of democratisation. In Chapter 2 we considered whether multilateral law-making processes have been democratised by NGO participation. But what is meant by democracy in this context is an open question. Some writers point to the democratic deficit inherent in transferring effective law-making responsibility from elected national parliaments to unelected intergovernmental fora. There are various responses to this criticism. If escaping democratic accountability at home by pursuing international law-making abroad merits accusations of illegitimacy, one obvious answer would be to improve domestic parliamentary oversight of governments when they act internationally.12 Others argue that in a globalised world it is no longer enough to address democracy at the national level alone. ‘If politics has become global, then so too must democracy.’13 Here again a more cosmopolitan notion of participation in international law-making provides a possible solution, exemplified by the election of parliamentary organs in international institutions such as the Council of Europe, the Nordic Council or the Organisation for Security and Co-operation in Europe.14 The International Labour Organisation’s tripartite structure of governments, trade unions and employers represents another version of this approach, although despite its relative antiquity in the pantheon of international organisations, it remains unique in this respect. Structures of this kind, or others which exceptionally employ weighted voting, such as the International Monetary Fund and World Bank, to some extent respond to the critique that giving all states equal voting power is fundamentally unfair and illegitimate in the eyes of the larger, wealthier or more populous states.15 But it might also be said that the equal participation of all sovereign states in the process of law-making can be viewed as inherently democratic, particularly when the negotiating power of individual states, however small, is strengthened by consensus negotiating procedures. In that context both the weak and the strong have to be accommodated, and resort to actual voting is minimised. In this chapter we observe how far such procedures have proved useful in securing widespread consent and thereby helping to generate genuinely global law. From this perspective, how decisions are taken within the process of law-making, and by whom, may be among the more important elements of legitimacy, a point we consider towards the conclusion of the chapter.
It is tempting to suggest that the present international law-making ‘system’—in reality more bric-a-brac than system—should evolve into something closer to the European Union, the only functioning model of a multilateral legislative system currently available. On that model the UN General Assembly might become the Parliament, the Security Council would be the equivalent of the Council of Ministers, and the Secretariat would perform the functions of the European Commission. Analogies of this kind are potentially misleading, and the context is clearly very different. Nevertheless, the institutions of European law-making have themselves evolved, most notably in the present sharing of legislative functions by the Parliament and the Council of Ministers, a power originally exercised by the Council alone. The institutions of international law-making also evolve; currently the most important development is the emergence of the Security Council as a significant legislator. How to legitimise and democratise the involvement of such a body is perhaps the most interesting challenge posed in this chapter. One obvious answer might be to accept that the Security Council should be empowered to legislate, but only with the involvement and approval of the General Assembly.16 Another answer looks to a more democratic composition of the Security Council, a reform mooted by the Secretary-General but not accepted by the General Assembly’s 2005 Summit. Both would require a significant reform of the UN Charter, or at least a change in the practice of the two principal organs and the acquiescence of member states to that change, but if carried out would constitute a genuine legislative body. Whether the world needs such an institution is another question, but the point should remind us that the UN’s centrality in the present system for international law-making has come about despite, not because of, the institutional architecture created in 1945.
The Anglo-American invasion of Iraq, the surrounding debates in the US Congress and the UK parliament, and the subsequent decisions on the jurisdiction of US and UK courts over the treatment of prisoners,18 clearly show that international law is not merely an academic discipline. It has real-world importance, of serious concern to governments and electorates. Nor is international law-making principally undertaken by lawyers. It is a political activity, which requires above all political initiative, energy and skill to set the process in motion and sustain it thereafter. Regardless of where proposals originate, marshalling the support of coalitions of like-minded states is normally essential. These do not necessarily have to be powerful states. The success of the Group of 77 developing states in UNCLOS III or the Association of Small Island States in the negotiation of the Framework Convention on Climate Change demonstrates that power and influence are not synonymous in the real world of multilateral diplomacy.19 On the contrary, the UN system has empowered weaker states in a way that would not have been possible previously.20 As we noted in Chapter 1, during the 1960s and 1970s developing states began using their growing dominance of the UN General Assembly with some success to promote a law-making agenda that focused inter alia on decolonisation, sovereignty over natural resources, the adoption of a new international economic order, and the refashioning of the law of the sea.
In the post-cold war era developing states have somewhat fragmented as a group and no longer seek to use their majority in the General Assembly to refashion international law in quite the same way. Initiative and influence in the UN have to some extent passed back to the Security Council, even in the sphere of international law-making. Moreover in certain contexts, notably the WTO, developing states have so far had insufficient leverage over the major trading economies to be able to promote their own agenda effectively. Although the Doha Development Round of trade negotiations initiated in 2001 ostensibly reflected the concerns of developing countries, after five years of unsuccessful negotiations it had become apparent that progress depended entirely on the willingness of Europe, Japan and the United States to make the necessary concessions to developing countries.21 Like the climate change negotiations, however, the WTO example also shows that ‘developing countries’ are no longer a cohesive group. The trading interests and objectives of newly industrialised China, India or Brazil, for example, are different from those of the least-developed agricultural producers in Africa and the Caribbean, and not easy to reconcile.
The perception that the US can and should operate more effectively outside many of the constraints of international law poses the greatest contemporary challenge to the post-1945 system of multilateral law-making exercised principally through the United Nations. Whether there are imperial alternatives to multilateralism is a question for consideration elsewhere.22 Nevertheless it would be naïve to assume that in a multipolar world an international law-making agenda can simply be dictated by supposedly powerful states; even the US has signally failed to control the development of international law on climate change, human rights or international criminal law, among many other examples. Nor, as we saw in Chapter 2, could it secure acceptance of the proposed Multilateral Agreement on Investment (MAI) against sustained NGO lobbying and opposition from other states. Effective multilateral diplomacy remains a necessary condition for exercising political leadership at an international level. Similarly, effective political leadership by individuals within international organisations may make the difference between a successful law-making initiative and failure.23 The political dynamics will also be heavily influenced by the decision-making procedures employed. Securing global consensus in favour of some new initiative is very different from achieving a simple majority of votes, and in a world of nearly 200 states it requires considerable diplomatic skill and the right personal attributes.
How then do new topics for international law-making reach the agenda of intergovernmental organisations or become the subject of diplomatic conferences? There is no simple answer. Some topics emerge in response to unilateral claims made by a single state or a small group of states. Thus the 1945 Truman Proclamation in which the US claimed exclusive jurisdiction over the continental shelf initiated a process of law-making in the ILC, the 1958 UN Conference on the Law of the Sea (UNCLOS I), the ICJ, and the 1973–82 UN Conference on the Law of the Sea (UNCLOS III). Icelandic and Canadian claims to high seas fisheries jurisdiction also resulted in multilateral negotiations that led to changes in international law.24 But unilateral action is inherently risky and unpredictable in its effects. Success depends entirely on the response of other states; significant opposition may lead at best to new law opposable only to other like-minded states,25 or at worst to litigation and failure.26 If a new practice does emerge it may do so in terms very different from the initial intention. This fate befell the other 1945 Truman Proclamation in which the United States claimed limited powers over high seas fisheries and to which some Latin American states responded with 200-mile territorial sea claims.27 This is not the best way to promote universal law-making.
Proposals for law-making more often originate in the principal political organs of the UN, usually the UN General Assembly or the Economic and Social Council, or in UN subsidiary bodies such as the UN Environment Programme (UNEP) or the Commissions on Human Rights, Women, or Sustainable Development, or in a specialised agency. One example to which we return later is the reform of the law of the sea. UNCLOS III had its genesis in a Maltese proposal in the General Assembly to designate deep seabed resources as the common heritage of mankind. The UNGA first established an ad hoc Committee on Peaceful Uses of the Seabed and Ocean Floor Beyond the Limits of National Jurisdiction to consider this proposal.28 Then, when it became apparent that there was pressure for more comprehensive reform, especially from developing states, the Seabed Committee’s mandate was broadened and UNCLOS III was convened by the General Assembly.29 Legal regulation of the oceans touches upon many diverse and emergent interests, however, and has continued to generate proposals for further development from various bodies, including the 1992 UN Conference on Environment and Development (‘the Rio Conference’),30 the Commission on Sustainable Development,31 the UN General Assembly,32 and the Informal Consultative Process on Law of the Sea.33 Law-making on ocean affairs and on other topics within their mandates may also be initiated by the political organs of specialised agencies, such as the security-related revisions to the 1988 Convention on the Suppression of Unlawful Activities Against the Safety of Maritime Navigation adopted by IMO in 2005, and the Convention on Underwater Cultural Heritage adopted by UNESCO in 2001. Here we can clearly see the diversity of contemporary international law-making fora.
As we saw in Chapter 2, states are sometimes persuaded to initiate law reform by individuals, NGOs or expert bodies such as the Comité Maritime International.34 It is well-known that the 1973 Convention on International Trade in Endangered Species was proposed, and initially drafted, by the International Union for the Conservation of Nature (IUCN).35 The UN Convention against Torture was negotiated on the initiative of Amnesty International,36 while negotiation of the 2002 Protocol to the same convention was promoted by a coalition of NGOs and like-minded states. The idea of instituting a scheme of preventive visits based on the practice of the ICRC originated in a draft proposed in 1977 by the Swiss Committee Against Torture and was subsequently taken up by the International Commission of Jurists.37 Successfully bringing a topic onto the international agenda does not guarantee speedy conclusion, however. Although by 1987 the European Convention for the Prevention of Torture made provision for such prison visits, it took a quarter of a century to negotiate the international Torture Protocol in the face of strong opposition from the United States, supported by Cuba, China and Iran.
The agenda of an international law-making conference will itself be the subject of negotiation and compromise. The 1992 Rio Conference illustrates how what eventually emerges for adoption at such a gathering may differ significantly from what was envisaged by those who initiated the process. The genesis of the Rio Conference can be traced to the report of the 1987 World Commission on Environment and Development (Brundtland Report). This was not an intergovernmental body, but a group of eminent politicians, scientists and lawyers convened by the UNGA, acting on a proposal from UNEP, and nominated by the UN Secretary-General.38 Following further proposals from governments and the UNEP, the UN General Assembly decided to convene a Conference and it established a Preparatory Commission (Prepcom) in which most of the negotiations took place.39 Political objections from developing countries ensured that intergovernmental negotiating committees established by the General Assembly, rather than UNEP, the World Meteorological Organisation (WMO) or the Food and Agriculture Organisation (FAO), were given responsibility for drafting conventions on climate change and biological diversity.40 Developing states also worked hard to coordinate their negotiating position, although in the intergovernmental negotiating committee on climate change they could not agree on a common position and separated into different groups.41
It was initially hoped by some of the sponsoring states and NGOs that the Rio Conference would produce an ‘Earth Charter’ setting out comprehensive principles for environmental protection and sustainable development and consider proposals for conventions on forestry and land-based sources of marine pollution, together with agreements on biodiversity and climate change. In practice, significant differences between the proposals of developed and developing states resulted in a much less ambitious outcome.42 A declaration on environment and development, a detailed programme of action, known as Agenda 21, and framework conventions on climate change and biological diversity were adopted by consensus. A non-binding ‘statement of principles’ on forests papered over fundamental differences on this highly charged issue, and Agenda 21 set in motion further law-making conferences on straddling and highly migratory fish stocks and desertification.43
Since international law-making agendas serve political purposes, it is unsurprising that they are sometimes driven by immediate political needs and dramatic events. When the Security Council legislated on international terrorism post-9/11, or created criminal tribunals to deal with genocide, or when IMO adopted measures on oil tanker disasters post-Torrey Canyon, or IAEA on nuclear accidents post-Chernobyl, we can see how attitudes and agendas may suddenly change, and law reform then becomes an urgent priority. In some cases the need to be seen to be doing something will result in an essentially symbolic response; in others it may bring about long-needed and real legal change. Law-making of this kind is very different from the attempt to give systematic coherence to international law which has characterised much of the work of the ILC.44 Crisis-driven law-making is sporadic, selective and often requires a process that will deliver results quickly, rather than prolonged deliberation or systematic coherence.45 From this perspective it is easy to understand why the Security Council has emerged as one of the more significant elements in contemporary international law-making, and why the General Assembly of the UN has comparatively declined in influence, and the ILC even more so.
International law-making is generally not dictated by disasters, however. It is mainly policy-driven, and reflects ongoing concerns of the international community or of groups of states and NGOs. Thus the Stockholm, Rio and Johannesburg Conferences on the Human Environment and Sustainable Development show how international policy and law on these topics have emerged progressively from a process of periodic review in which new agendas are set, existing goals confirmed or modified, or old policies and institutions reformed in line with emerging priorities. Even when they do not themselves create new law, policy declarations adopted by the UN or by inter-state conferences may influence the development of international law insofar as policies endorsed by the international community create expectations and pressure for implementation and change. The UN General Assembly’s Millennium Declaration is an example.46 Intended to complement Agenda 21 and other international instruments, it sets goals and targets for combating poverty, hunger, disease, illiteracy, environmental degradation and discrimination against women. It commits member states inter alia to take action against international crime and terrorism, to try to eliminate weapons of mass destruction, to promote economic development and so on. Some of these objectives will lead to law reform initiatives in various organisations, and the policies endorsed by the Declaration may also influence the interpretation and application of existing treaties and international law. Moreover, subsequent reviews by the UN in 2005 and no doubt also in future years may have continuing effects on the law-making agenda, notably in the WTO, the newly established Human Rights Council and the UN General Assembly.
As Oscar Schachter pointedly observed, ‘Neither the United Nations nor any of its specialised agencies was conceived as a legislative body’.47 This is true insofar as the authority of international organisations to adopt binding rules remains limited. Nevertheless, in the modern world, the United Nations has in practice assumed the role of principal promoter of international law-making.
It is potentially well-suited for this purpose, for several reasons. First, in the eyes of many member states it has legitimacy. As an intergovernmental organisation with universal membership, all states have in theory an equal voice and an equal vote in the General Assembly. Their right to participate in its law-making activity is assured. However, as we shall see below, the same cannot be said of the Security Council, nor of other elected bodies with limited membership such as the Human Rights Council established in 2006.48 Second, the UN is a political organisation. Deliberation, negotiation and compromise are its working currency and the principal rationale of its existence. If greater inclusivity and consensus are thereby facilitated, then global law-making is more likely to be successful. Third, it has universal competence. The powers it possesses under the UN Charter embrace, potentially, all areas of political, economic and social affairs.49 Some important areas of UN law-making, such as human rights, are explicitly envisaged in the Charter. Others, such as suppression of international crime, or the promotion of sustainable development and environmental protection, have emerged through subsequent interpretation to meet the evolving needs of international society. The Charter has proved a very flexible instrument for accommodating such needs.
The UN is also the centrepiece of an eclectic system of international organisations, specialised agencies, programmes, commissions, councils and other bodies with responsibility for law-making in specific areas such as human rights, the environment or criminal justice. We consider the work of several of these bodies in later sections of this chapter.
The conventional view is that the Security Council ‘is not, properly speaking, an organ that creates law’, but merely one that interprets and applies existing law.50 A less conventional view is that in the absence of due process, transparency or judicial review, ‘the redefinition of a political process as a law-applying process presents more problems than it solves’.51 Nevertheless, following the end of the cold war, the Security Council has largely been freed from the use of the veto power that had previously inhibited it. Since then, and notwithstanding that its powers under Chapter VII of the UN Charter are limited to the maintenance of international peace and security, it has interpreted these terms very broadly and acted in a number of innovative ways that demonstrate a capacity and willingness to lay down rules and principles of general application, binding on all states, and taking precedence over other legal rights and obligations.52 In effect it has asserted and extended its authority where the inadequacies of law-making by treaty might undermine the pursuit of its objectives.
4.1.1 Legally Binding Determinations
First, Security Council decisions may have legal effects. In the Namibia Advisory Opinion the ICJ held that ‘a binding determination made by a competent organ of the United Nations to the effect that a situation is illegal cannot remain without consequence’.53 The Court affirmed the power of the UNSC to declare illegal South Africa’s occupation of Namibia, require it to withdraw from the territory, and impose on other states a duty to recognise the illegality. Another notable example is the 1991 Gulf War ceasefire resolution.54 Iraq disputed provisions of that resolution on the grounds that, inter alia, the Security Council had no authority to impose a boundary, a position that was not without support from other UN member states.55 The same resolution declared that Iraq ‘is liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign governments, nationals and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait’. It established a Compensation Commission to determine claims brought pursuant to the resolution.56 Subsequently the Council determined that Iraq was in ‘material breach’ of its disarmament obligations under the ceasefire resolution, although neither UN inspectors nor US-led occupation forces could find any evidence of weapons of mass destruction or illegal weapons programmes. These examples show how the Security Council may make legally binding determinations on questions of law of a kind that are more typically made by courts, but without the normal safeguards of due process inherent in judicial procedures.
Another example shows how the Council has also used its power to override both customary law and applicable treaties. UN peacekeeping personnel are potentially subject to the criminal jurisdiction of the sending state, the host state, the International Criminal Court, and any other state exercising universal jurisdiction over international crimes. Because the US is not a party to the Statute of the Court and objects to the possibility of the ICC having jurisdiction over its forces when engaged on UN peacekeeping missions, SC resolution 1497 (2003) provides that personnel drawn from non-parties to the ICC Statute on UN duty in Liberia are subject to the exclusive jurisdiction of the sending state. This effectively exempts US personnel in Liberia not only from the jurisdiction of the ICC, but also from Liberian territorial jurisdiction in customary law, or indeed that of any other state exercising universal jurisdiction. They may thus be tried only by the US. This is a very particular case,57 but it shows clearly the power the Council has assumed to rewrite or dispense with existing law, a controversial argument we consider further in Chapter 5. Insofar as the Council’s reading of the Charter is correct and is accepted by states, the potential for law-making is readily apparent.
4.1.2 Interpretation and Application of the UN Charter
Second, like the General Assembly, the Security Council may in effect extend or develop the law through its interpretation and application of the UN Charter.58 An important recent example is the body of law relating to the use of military force in response to humanitarian catastrophes. Under the UN Charter the use of force in international relations is permitted only under Article 51 (self-defence in response to an armed attack) or Chapter VII (Security Council collective action in response to a threat to or breach of the peace or act of aggression). Since 1991 when the SC insisted that Iraq allow ‘immediate access by international humanitarian organizations’ to those in need in Iraq (notably the Kurds),59 the Security Council has authorised the use of ‘all necessary means’ to provide humanitarian assistance in, inter alia, Somalia, Bosnia-Herzegovina, Rwanda,60 and to restore the elected government in Haiti.61 Through such resolutions the Security Council has established the principle that a humanitarian crisis may constitute a situation that triggers Chapter VII action, although the parameters remain imprecise. For example in the case of East Timor, Indonesian consent to intervention was deemed necessary, but not in relation to Somalia, where there was no functioning government. This practice has helped promote the argument that states may, without UNSC authorisation, use military force for humanitarian objectives under customary international law.62 The legal position remains controversial,63 but what is indisputable is the potential for extrapolation from Security Council practice on the basis of which claims for the evolution of customary international law may be made. Such claims need not be limited to humanitarian intervention but could be made in any context in which the SC has acted expansively.
4.1.3 Establishment of UN Courts
Third, the Security Council has established international courts. In response to widespread allegations of war crimes and crimes against humanity in Bosnia-Herzegovina, the Security Council established the International Criminal Tribunal for Former Yugoslavia (ICTY) in 1993. This tribunal became the first international tribunal exercising criminal jurisdiction since the Nuremberg and the Tokyo trials at the end of World War II. The ICTY was followed in 1994 by the International Criminal Tribunal for Rwanda (ICTR) and since then the Security Council has been instrumental in setting up a special court for Sierra Leone. The authority of the Security Council to create subsidiary organs and to bestow criminal jurisdiction on them as a means of addressing threats to international peace and security was affirmed by the appellate chamber of the ICTY in the Tadic case.64 This decision recognised that, in accordance with international human rights law, any such tribunal had to comply with fundamental guarantees of a fair trial by an independent and impartial court. It also accepted that in accordance with the principle of nullum crimen sine lege, a tribunal could only apply existing international humanitarian law. Thus the UNSC ‘would not be creating or purporting to “legislate” that law’.65 Nevertheless, as we will see in Chapter 6, the decisions and orders of these tribunals constitute an innovative and increasingly well-developed body of jurisprudence on contemporary international criminal law and procedure.66
In the process of establishing the ICTY, the Security Council engaged the services of a range of actors: the Secretary-General,67 a fact-finding Commission of Experts,68 and the Special Rapporteur of the Commission on Human Rights. The UNGA also condemned acts of ethnic cleansing in Former Yugoslavia, but it went further than the SC by locating primary responsibility for these acts in the ‘Serbian leadership in territories under their control in Bosnia and Herzegovina, the Yugoslav Army and the political leadership of the Republic of Serbia’.69 The UNGA also asserted individual criminal liability for crimes against humanity and grave breaches of the Geneva Conventions. Thus the SC’s unique response to conflict and atrocities was bolstered by the unequivocal support of the UNGA,70 which was at the same time requesting the ILC to draft a Statute for an International Criminal Court. While the UNGA cannot determine the legality of the SC’s exercise of its Chapter VII powers, repeated approval and endorsement ‘by the “representative” organ of the United Nations’ further legitimates SC action.71 The most obvious process for establishing such a tribunal would have been by treaty. This would have allowed states the opportunity to undertake ‘detailed examination and elaboration of the issues’ and to express their sovereign will in determining whether to become parties.72 But treaty-making is slow and further time is required before ratification and entry into force. There can be no guarantee that those states whose participation is most needed if the treaty is to be effective will in fact ratify.73 The Secretary-General also considered that treaty negotiations involving the UNGA could not be reconciled with the urgency expressed by the SC.74 In contrast, the process of establishment by SC resolution was completed within the year and was binding upon all relevant states under Article 25 of the UN Charter.
4.1.4 Legislative Competence and UN Reform
Lastly, the Council has shown that it is willing to legislate more generally on matters relating to peace and security. Two striking and unprecedented examples are SC resolutions 1373 (2001) and 1540 (2005), both Chapter VII resolutions passed in the aftermath of the 11 September 2001 attacks in New York and Washington and later atrocities. In resolution 1373 the Security Council decided that states must take a range of anti-terrorist activities, including prevention and suppression of the financing of terrorism; refraining from any form of support for persons involved in terrorism; providing early warning to states by exchange of information; denying safe havens to those who finance, plan, support or commit terrorist acts; and affording the greatest measure of assistance in criminal investigations. Such obligations would previously have been adopted by treaty, leaving states free to participate or not. The resolution calls upon (although it does not require) states to become parties to the 1999 Convention for the Suppression of the Financing of Terrorism,75 the provisions of which are in significant respects similar to those found in resolution 1373. States are required to report to a Counter-Terrorism Committee explaining how they have implemented the resolution. The Committee may take further measures where it deems the response to be inadequate. Yet the resolution provides no definition of international terrorism, which had long been debated within the United Nations and other international arenas. In effect this Security Council committee makes authoritative determinations on what constitutes international terrorism and adequate steps to counter it. All UN member states must comply with these decisions. In resolution 1540 (2004) the Council has again legislated in general terms to ensure that non-state actors are prevented from obtaining nuclear, chemical or biological weapons. Implementation is also monitored by the UNSC. Resolution 1540 adds to rather than changes existing treaty law. Its terms expressly disavow any conflict with the rights or obligations of states parties to the Nuclear Non-proliferation Treaty, the Chemical Weapons Convention and the Biological and Toxic Weapons Convention, and it leaves unchanged the responsibilities of the IAEA and the Organisation for the Prohibition of Chemical Weapons.
The exercise of what might be termed legislative or quasi-legislative power by the Security Council is not unproblematic. Its main advantages, as resolutions 1373 and 1540 show, are that where there is political support within the SC it can produce quick, universal and immediately binding obligations in a manner that no treaty negotiation or General Assembly resolution could replicate.76 At the same time its most obvious drawbacks are that the UNSC is not a fully representative body and that pushed too far such legislative actions may lack legitimacy and acceptability among the wider community of states.77 The Council consists of only 15 states, five of which are permanent members,78 the remainder elected on a rotating basis. Non-members whose interests are specially affected may be invited to participate in the Council’s discussions, without a vote,79 and procedures also exist to enable NGOs to have some input into its deliberations.80 It negotiates its decisions in private, however, but acts on behalf of and can place legally binding obligations on all UN member states, and arguably also on non-members.81 The power which this gives the Council, and particularly its five permanent members, undermines both the principle of sovereign equality of states and the conception that individual states are not bound by new law to which they have not consented. The last point is all the more important when it is appreciated that the Council has acted on the basis that it may over-ride existing law by which states had previously believed themselves bound or empowered to act.82 As we note in Chapter 5, the possibility of challenging the legality of the Council’s actions is limited and the scope of judicial review uncertain. At the same time, any permanent member may veto a resolution which affects its own interests or those of its friends and allies. There can thus be little assurance that the Council will act consistently or at all. This conception of international law-making is especially unappealing to developing states represented on the Security Council only by a few non-permanent members.83Moreover, it can also be criticised for the essentially ad hoc and unsystematic approach to law-making which results from Council action on specific issues.84
Whether viewed in terms of accountability, participation, procedural fairness or transparency of decision-making, the Security Council is a seriously deficient vehicle for the exercise of legislative competence. Dominated by the permanent members, or sometimes by only one or two of them, unrepresentative and undemocratic, its quasi-legislative powers can only be justified by reference to the paramount urgency and importance of its responsibility for the maintenance of international peace and security. From this perspective, while the process may seem unfair and illegitimate, the Council has shown that on some occasions it can be effective at taking decisions, and this is an important standard by which to judge it.85 At the same time, as we noted earlier, the increasing prominence of the UNSC in the dynamics of international law-making marks an important shift of power and influence away from the General Assembly. For many states that see the General Assembly as the paramount ‘law-making’ institution of the UN this is not a welcome development, nor is it necessarily one foreseen or intended by the drafters of the Charter.86 The Council’s powers are not unlimited, and in Chapter 5 we consider how far, if at all, it may have authority to act in a legislative capacity.
Moreover, the de facto broadening of the Council’s competence within the Charter system has strengthened demands from some states for procedural and institutional reform. In 2004, as part of a broader review of the objectives and structure of the UN, a High Level Panel appointed by the S-G recommended that the UNSC should be made more democratic and accountable, and that more countries, especially from the developing world, should be involved in its decisions.87 The Panel’s report also makes far-reaching recommendations about the conditional nature of sovereignty within the Charter system and the collective responsibility of states for promoting the objectives of the UN. Although the report says nothing about the implications for international law-making of what Slaughter calls a ‘tectonic shift’ in the role of the UN, an organisation more committed to the exercise of collective responsibility could scarcely avoid enhancing its own law-making role.88 In that context reform of the Council would be essential. As the Secretary-General noted in a speech marking the UN’s 60th anniversary: ‘do not underestimate the slow erosion of the UN’s authority and legitimacy that stems from the perception that it has a very narrow powerbase, with just five countries calling the shots.’89 However, the Summit meeting held in 2005 made no progress on reform of the Council.
The UN General Assembly is a forum for discussion, negotiation and coordination.90 It also has responsibility for ‘encouraging the progressive development of international law and its codification’.91With minor exceptions it has no power to take decisions binding on states. In this respect it is very different from the Security Council. Nevertheless, although not a legislative body in any sense, its ability to adopt resolutions on any subject, convene law-making conferences, adopt treaties and initiate codification projects has given it a central role in the development of international law.92 Law-making conferences on, inter alia, the Human Environment (Stockholm, 1972), the Law of the Sea (1973–82), Environment and Development (Rio, 1992), Fish Stocks (New York, 1993–5) and the International Criminal Court (Rome, 1998) have been convened and their results endorsed by the General Assembly. Moreover, as we will see in Chapter 5, UNGA resolutions on such diverse matters as human rights, the legal status of the deep seabed and outer space, decolonisation, friendly relations between states, and global climate change have influenced the evolution of treaties, general principles and customary law on these and many other topics.
In other cases multilateral treaties are negotiated within various committees of the General Assembly. These include the 1st Committee (Disarmament), the 3rd Committee (Social and Humanitarian Affairs), and the 6th Committee (Legal Committee), the Committee on Peaceful Uses of Outer Space (COPUOS), and various ad hoc or special committees. Subsidiary bodies of the UNGA also play a prominent role in law-making and the negotiation of multilateral treaties, in particular the Human Rights Commission, the Commission on the Status of Women, the UN Environment Programme and others which we examine below. The work of some of these bodies involves the negotiation of new law, such as the development of international human rights law or international environmental law, while in other cases more modest codification or progressive development of existing law is the objective. The ILC is the principal UNGA subsidiary body responsible for codification and progressive development, but other UN bodies also undertake such work. We examine codification and progressive development in Chapter 4, but as we suggest there, it is neither possible nor particularly useful to draw a sharp distinction between the law-making which is the focus of this chapter and codification which is the focus of the next: the two often overlap, and the distinction is one of degree. Moreover, in many cases the process of negotiation involves participation by a range of different bodies: for example the UNGA may take the initiative by remitting an issue for codification by the ILC, whose proposals will then be considered by the 6th Committee, then they will possibly be taken further by an ad hoc committee, remitted back to the ILC, refined in the 6th Committee and finally be adopted by the UNGA. Human rights treaty negotiations may involve the UNGA, the 3rd Committee, the Economic and Social Council, the Human Rights Council and an intergovernmental conference. The range of possibilities is very great, and they do not end there.
Even when it does not itself promote the negotiation of new treaties or other instruments, the General Assembly’s power to coordinate the legal and policy agendas of specialised agencies and other UN bodies gives it a continuing role at the heart of the law-making process. With so many different bodies potentially involved in international law-making, the task of allocating responsibilities and coordinating policy is an increasingly important feature of the General Assembly’s role. Where, for example, should responsibility for developing international law relating to forests be located? FAO’s mandate covers forestry, while promoting trade in timber is the main objective of the International Tropical Timber Organisation. The World Heritage Convention adopted by UNESCO protects some forest areas, while forests generally are also covered by the Convention on Biological Diversity. Sustainable use of natural resources falls within the mandate of UNEP, while afforestation and deforestation are potentially significant issues for parties to the Kyoto Protocol and the Convention on Climate Change. Where such cross-cutting areas of policy are involved, no single forum is self-evidently the right one to undertake the development of new law.93
Moreover, the choice of forum may affect not only the perspective from which the issues are approached but also the constituencies most likely to become involved and whose interests are most strongly favoured by the governmental representatives concerned. To give responsibility for a convention on forests to FAO, for example, would tend to favour the perspectives of agriculture and forestry ministries and the relevant industries. To give it to UNEP would be more likely to favour environmental ministries and organisations. In either case, the influence of developing countries may not be as strong as it is in the General Assembly, and forests are a matter of strong interest to a number of important developing states. In such circumstances there is a tendency for the UNGA to take upon itself responsibility for coordinating action.94 Alternatively, as we shall see below, one agency may lead while other interested agencies cooperate and coordinate their policies. This gives each of them a say, but ensures—or may ensure—that the UN as a whole pursues a single coherent policy.95
A specialised agency with undisputed competence may not, however, be the best forum to take the relevant measures. Specialised agencies, both national and international, tend to be strongly influenced by special interests and particular ministries. For instance, IMO, dominated by shipping states, has been notably reluctant to strengthen international law relating to flag of convenience vessels.96 FAO, in which fishing states have a powerful voice, may be slow to react to unsustainable practices such as drift-netting or flag of convenience trawling. In all of these cases it may become necessary for the General Assembly with its universal membership and broader view to take action, as it did when adopting a ban on driftnet fishing,97 or establishing an inter-agency task force on flags of convenience in response to lobbying by Greenpeace, IUCN and the International Transport Workers’ Federation.98
Coordination of the policies of so many different international organisations necessarily falls to the UN, usually the General Assembly, the Secretary-General, or a subsidiary body such as UNEP or the Commissions on Human Rights or Sustainable Development. Thus, when the General Assembly endorsed the 1992 Rio Declaration on Environment and Development, referring to its ‘fundamental principles for the achievement of sustainable development’, it also called on the Commission on Sustainable Development and the UN Secretary-General to promote incorporation of the principles of the declaration in the implementation of Agenda 21 and in UN programmes and processes, and urged governments to promote their widespread dissemination.99 The Rio Agenda has gradually affected the application and the development of law and policy by most of the relevant international organisations, including FAO, IMO, The World Bank and the WTO, as well as by treaty bodies such as the International Tropical Timber Organisation and the European Energy Charter.100 International law-making by all of these organisations on issues such as the precautionary approach, sustainable use of natural resources and environmental impact assessment reflects the changes brought about through the mechanism of UN soft law since 1992.
The point is not that the General Assembly has usurped the powers of other bodies, merely that it can perform a necessary role in bringing some measure of consistency to the policies and law-making activities of an otherwise diverse range of organisations. However, there is also good reason for some scepticism concerning the UN’s success at coordinating either its own programmes or those of the rest of the UN ‘family’. As the Director General of IUCN pointed out: ‘Despite all the emphasis on co-ordination . . . the programmes of UN agencies, and other organisations, including my own, are still conceived too independently, operated too separately and involve too many overlaps and inefficiencies . . . ’.101 This can result in multiple agencies reinventing the wheel each time they adopt measures on similar topics. Further, the UNGA has no power to coordinate the policies of non-UN bodies such as the WTO. We consider below whether this could result in potential conflicts of interest between WTO and other international organisations.
In the UN Charter the Economic and Social Council (ECOSOC) is the principal UN organ responsible for the promotion of international cooperation on economic and social matters and the protection of human rights.102 It is also the body to which UN specialised agencies, commissions and programmes report, and with which NGOs may have consultative status.103 ECOSOC does not have any formal law-making competence as such. Its principal powers are to initiate studies and reports on economic, social, health and related matters; to make recommendations on these matters to the General Assembly and to specialised agencies, whose activities it also coordinates; to prepare draft conventions for submission to the General Assembly, and to convene international conferences.104