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Saturday, March 1, 2003 08:37 a.m.

Another route for UN General Assembly intervention?

On the other hand, one more slip couldn't hurt....

I've mentioned before [1] the possibility that, if the Security Council finds itself unable to act on Iraq, either because any draft resolution fails to get the required nine votes, or because a veto is exercised, the UN General Assembly may itself act be able to act under a Uniting for Peace Resolution.

But what if the Saleable Six are as adamantine as talc, and the P3 funk the veto? The draft USU [2] resolution passes. The UNSC is not deadlocked: a UFPR fails at the first hurdle.

There may be an alternative, very much in the long-shot category:

Articles 92-96 of the UN Charter establishes the International Court of Justice as

the principal judicial organ of the United Nations.

The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.

The procedure would seem to be that, immediately the USU resolution passes, the signatures of half the UN membership would have to obtained to secure a special session of the UNGA [3]. I'd be fairly certain that the GA Rules of Procedure include provisions governing this process (in terms, for instance, of the number of days' notice required); but, since, as previously noted the Rules appear to be unavailable from any source online, I'm not aware of what they say.

Suppose that is possible to get an emergency session: the model for a resolution might be that in the Nuclear Weapons Case, sent to the International Court of Justice in December 1994.

But, in this case, the ICJ would also be asked for an order under Art 73 of the ICJ Rules of the Court for provisional measures - which I take to be the rough functional equivalent of a TRO or interlocutory injunction - demanding that operation of the USU resolution be suspended pending a ruling on the substantive question. Which would, I suppose, essentially be to determine whether, in passing the USU resolution, the UNSC had effectually authorised military action; and whether the effect of any such authorisation was to make such action legal under international law.

Note that the scope of opinions which the GA can request Art 96 of the Charter is unlimited [4]. And, whilst Art 12(1) of the Charter restricts the GA on matters where the UNSC is acting [5] this would seem not to apply in the hypothetical I'm talking about, for one of two reasons:

• the passing of the USU resolution means that the SC has already dealt with the matter; or

• the request for an ICJ opinion cannot be characterised as a

  recommendation with regard to [a] dispute or situation.

The sort of jurisdictional problems that arise when states are parties to ICJ litigation (the Nicaragua case I mentioned before, for instance) cannot arise with an advisory opinion. In particular, the US would not be a party (though it would no doubt file a statement, as would many other members).

Whether the ICJ would accept the case; and - vitally - whether they would agree provisional measures which would have the effect of putting the war on hold, I couldn't guess at. But they might.

In terms of politics, none of those nations seeking an ICJ ruling would be opposing an attack on Iraq; they would merely be seeking to uphold international law, as Bush no doubt would claim he is doing.

The US has a history with the ICJ going back to before World War 2, refusing to join the Court in 1935 [6]. And, coming right up to date, there's the dispute with Mexico over death penalty cases. Bush may be unwilling to be seen as snubbing the court; or conclude he can never win and attack regardless.

That's as far as I've got - very much a preliminary scouting exercise, nothing more. But another one for the flagpole....

1. In date order, here, here and here.

2. US, Spanish and UK - brevity (and wit?)

3. Under Art 20 of the Charter.

4. The companion nuclear case brought by the WHO failed on the ground that Art 96(2) of the Charter restricted the opinions WHO could request to those on

   legal questions arising within the scope of their activities.

5. '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.'

6. The US never was a member of the League of Nations, of course.