« ÎnapoiContinuați »
Legal questions are relevant to a significant part of the work of the United Nations. Many of these questions, such as review of the UN Charter, law of the sea, and the uses of outer space, are discussed in other parts of this report in connection with the underlying issues to which they relate. However, because of their specifically legal character, Part Four deals separately with the activities of the International Court of Justice, the International Law Commission, the UN Commission on International Trade Law, the General Assembly's Sixth (Legal) Committee, and special conferences of committees that consider such questions as relations between UN missions and host countries.
INTERNATIONAL COURT OF JUSTICE
The International Court of Justice is the principal judicial organ of the United Nations. The Court's principal functions are to decide such cases as are submitted to it by states and to give advisory opinions on legal questions at the request of intergovernmental bodies authorized pursuant to the Statute of the Court and the UN Charter.
The Court is composed of 15 judges, no two of whom may be nationals of the same state, elected by the UN General Assembly and the Security Council, voting independently. The electors are mandated to bear in mind the qualifications of the individual candidates and the need for the Court as a whole to represent the main forms of civilization and the principal legal systems of the world. As a result of elections held in 1975, the Court in 1976 will be composed of judges from Argentina, Benin, Federal Republic of Germany, France, India, Japan, Nigeria, Poland, Senegal, Spain, Syria, U.S.S.R., United Kingdom, United States, and Uruguay.
Only one case, concerning Western Sahara, was before the Court in 1975.
On December 13, 1974, the 29th General Assembly had adopted a resolution recommended by its Fourth Committee during its consideration of the decolonization process in Spanish Sahara requesting the Court to give an advisory opinion on questions relating to the status of the territory. The Assembly's questions, received by the Court on December 21, 1974, were:
"I. Was Western Sahara (Río de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no one (terra nullius)?
"If the answer to the first question is in the negative,
"II. What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?"
The Court received written statements on the questions in the spring of 1975. Following five public sittings from May 12 to 16, the Court on May 22 authorized the Moroccan Government to choose a judge ad hoc to sit in the proceedings. The subsequent oral proceedings occupied 27 public sittings between June 25 and July 30. On October 16 the Court delivered its advisory opinion.
The Court unanimously found that the territory was not terra nullius when Spain had colonized it, because the peoples in Western Sahara, prior to colonization, were socially and politically organized in tribes under chiefs competent to represent them, and because Spain's colonization had proceeded through agreements with the local chiefs rather than mere occupation.
On the second question, concerning possible legal ties between the territory and Morocco and "the Mauritanian entity" prior to colonization, the Court ruled (14 to 2 and 15 to 1, respectively) that there had been legal ties of allegiance between the Sultan of Morocco and some of the tribes in Western Sahara, and lesser legal ties between Western Sahara and the "Mauritanian entity" as the result of the enjoyment of certain land use rights in Western Sahara by the peoples of the territory now constituting Mauritania.
On the other hand, however, the Court, by the same votes, rejected the principal Moroccan and Mauritanian contentions by holding "that the materials and information presented
do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity." The Court further concluded that it had found no legal ties of such a nature as might affect the right of the people of Western Sahara to exercise self-determination through the free and genuine expression of their will, as contemplated by the General Assembly's 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples.
As an advisory opinion, the Court's decision does not have to be followed by the United Nations and does not bind the disputing countries. It is, however, an authoritative interpretation of the Law. (See also Part III, p. 300.)
INTERNATIONAL LAW COMMISSION
The International Law Commission was established by the General Assembly in 1948 to promote the codification and progressive development of international law. It is composed of 25 experts,
perts, elected by the Assembly for 5-year terms, who serve in their individual capacities. Richard D. Kearney of the United States is a member of the Commission.
In discharging its function the Commission studies topics it has determined are suitable for codification or that other UN bodies, usually the General Assembly refer to it. Its normal procedure is to select one of its members to prepare a report and, after discussion, draft articles. The Commission sends tentative texts to governments for review, reconsiders them in the light of government comments, then adopts final texts which it forwards to the General Assembly. When the Assembly receives a set of draft articles, generally in the form of a proposed convention, it may convene a diplomatic conference to consider adoption of a convention, review the articles itself, note them, or remand them to the Commission for further study.
At its 27th session, held in Geneva, May 5 July 25, 1975, the Commission continued its work on two major items, adopting six articles on state responsibility and three on the succession of states in respect of matters other than treaties. It also adopted a number of articles on two lower priority topics--the most-favored-nation clause, and treaties concluded between states and international organizations or between two or more international organizations. A fifth topic, the law of the nonnavigational uses of international watercourses, was not considered in 1975, pending replies from governments to a questionnaire the Commission had prepared in 1974.
In the course of its 27th session, the Commission established a 5-member Planning Group, chaired by Ambassador Kearney, to study the functioning of the Commission and formulate suggestions regarding its work. The Group proposed targets, varying from 1 to 6 years, for completion of various phases of the work currently
77-838 0.76 - 22
before the Commission. These suggestions were subsequently endorsed in principle by the full Commission, which also decided to keep the Planning Group in existence.
In 1975, with the provisional adoption of articles 10 to 15, the Commission completed its study of Chapter II, "The Act of the State Under International Law." The purpose of this Chapter is to determine what conduct is regarded by international law as an act of the state for the purpose of establishing the possible existence of an internationally wrongful act. (Chapter I, "General Principles," was completed in 1973. Three additional chapters, "Breach of an International Obligation," "Participation by Other States in the Internationally Wrongful Act of a State," and "Circumstances Precluding Wrongfulness and Attenuating or Aggravating Circumstances" are still to be considered.)
Under the articles approved in 1975 the conduct of a state organ shall be considered an act of the state, even if the organ acted outside its competence or contrary to instructions, but the conduct of persons not acting on behalf of the state shall not be considered an act of the state. The conduct of a state organ in the territory of another state, or the conduct of the organ of an international organization in any state, shall not be considered as the act of the state in which it takes place. The conduct of an organ of an insurrectional movement within a state shall not be considered an act of the state. However, the act of an insurrectional movement that becomes the new government of a state or that results in the formation of a new state shall be considered an act of the new government or new state.
SUCCESSION OF STATES IN MATTERS OTHER THAN TREATIES
In 1973 the special rapporteur on "succession of states in matters other than treaties" submitted 40 articles to the Commission, which provisionally adopted eight of them. The first three dealt with the scope of the articles and definition of terms, the next five dealt with general provisions applicable to Part I, "Succession to State Property." The Commission did not consider this subject in 1974, but in 1975 it adopted three more articles on succession to state property. Article 9 provides that state property which, on the date of the succession of states, is situated in the territory to which the succession relates shall pass to the successor state. Article 10 concerns the rights in respect of the authority to grant concessions. The