The United Nations remains one of the most well-known pillars of international relations, dominating many conceptions of what exactly the international system consists of. Despite this, the exact concepts present within the United Nations legal framework can often appear nebulous and daunting, consisting of a plethora of interworking parts and countless moving actors. As a result, this 101 series therefore aims to simplify the concept of the United Nations and its connection to international law. It first begins with a chronological history of how international law, specifically within the context of the United Nations, was formed and eventually adopted by states in the system. The series also includes a brief explanation of the main lawmaking bodies of the United Nations, along with methods of how to interpret and put the law into practice. By analyzing enforcement mechanisms for states in the system, the 101 series ends with a case review of the most well-known cases within the United Nations canon and a hypothetical look into the future as to the relevancy of UN law. It is the aim of this series to provide the reader with a foundation from which many dimensions of international law can be better understood, along with a critical lens to analyze many facets of the international system within this context of the United Nations' deep connection to the law. United Nations and the Law 101 is therefore divided into six chapters: 1. United Nations and the Law 101: A Chronological History
3. United Nations and the Law 101: Interpreting The Law
4. United Nations and the Law 101: Enforcement Mechanisms
5. United Nations and the Law 101: Case Review
6 .United Nations and the Law 101: Future Implications
Interpreting the Law Despite a common conception of legal theory as rigid and inflexible, the application and interpretation of the law is what allows the law its flexibility. Precisely through constant interpretation and reinterpretations of previous precedents is how the law develops and evolves over time. Though referring back to precedent is vital for understanding the present status of the law, legal interpretation implies applying the written text of a ruling document to a current case. In the United Nations (hereby referred to by its acronym, the UN), each body is therefore governed by written documents which set out the objectives to be sought and the manners in which each organization can achieve them. For many bodies, they are governed by the UN Charter itself, the organizations’ founding document. For others, they are bound by specific treaties who impose their own respective objectives and manners of application. This chapter of the UN and the Law 101 series therefore seeks to elucidate how the UN interprets its governing documents, both on an individual state basis and adjudicative level with the International Court of Justice – revealing that the constant state of interpretation and reinterpretation has led to a rather complicated state of affairs dominated by majority opinion.
General Dispute Resolution
The majority of interpretation delegated to UN bodies, instead of being judicial in natural like the International Court of Justice, is more fundamental at its core: “to prepare a plan of action or to recommend state behavior to achieve a goal” (Schachter, 1994, p. 6). In this manner, UN bodies are prone to analyzing specific dilemmas within the international system and negotiating between member states in order to reach a consensus and, hopefully, an ultimate decision. Here, interpretation does not literally require a strict black letter law of following the governing text exactly, but rather an “implicit interpretation” characterized by the methods in which states reach a conclusion (Ibid. at p. 6). The common perception that interpretation in the UN essentially boils down to politics is not necessarily incorrect. “Disputes about interpretation are resolved mainly by what member states desire as a matter of policy,” with consensus-building strategies such as coalitions and bargaining tools often forming to achieve a particular outcome (Ibid. at p. 7). In this case, the common method of resolving disputes essentially reduces an interpretation down to what a reasonable person would find “generally acceptable”, with cases being decided based on their own merits (Ibid. at p. 7). Often, a meritable conclusion is derived from what is considered to be both politically desirable to the largest number of states and what is reasonably feasible given the plurality of state opinions. These conclusions are, therefore, derived from majority vote (United Nations, n.d).
However, many issues of interpretation at hand go beyond simple policy concerns and strike at the heart of many abstract terms such as human rights, equality, and the critical notion of state sovereignty argued earlier as the crux of the international system. For these questions, simple dictionary interpretation of their definitions are not enough. We now turn to the International Court of Justice’s role in adjudicative analysis, revealing a growing tendency to turn toward the Court in recent years post-dissolution of the Soviet Union in 1991.
The International Court of Justice’s Role in Interpretation
The International Court of Justice has a bifurcated method of jurisdiction, divided into what is known as “contentious case” advisory and “advisory jurisdiction”. Whereas advising on contentious cases involve the Court offering advice for situations submitted by states, advisory jurisdiction instead involves the Court providing advisory opinions to other UN bodies and specialized agencies (Jurisdiction, n.d.). The following portion of this article goes into detail on both of these methods of guidance and interpretation, analyzing how the International Court of Justice’s role in interpretation, though most often advisory in nature, enacts cultural precedent in the contentious cases it does rule on. States can recognize the Court’s jurisdiction in three distinct manners: through compulsory recognition of unilateral recognition; via international treaties which are therefore encompassed by the Court’s jurisdiction; and on an ad hoc, individual basis (UNC, n.d.). The most binding decisions on states therefore arise out of compulsory recognition under Article 36(2) of the Statute of the International Court of Justice: “2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: the interpretation of a treaty; any question of international law; the existence of any fact which, if established, would constitute a breach of an international obligation; the nature or extent of the reparation to be made for the breach of an international obligation” (Statute of the International Court of Justice, n.d.). Therefore, any declarations the Court makes under Article 36 are therefore acceptances of the Court’s compulsory jurisdiction over the state. This gives the Court extensive power when it comes to interpreting individual cases, though it is rarely used. Rather, the Court prefers to enact its advisory jurisdiction and provide recommendations to states to adopt at their discretion. In this way, the International Court of Justice provides its own unique form of judicial interpretation of the world’s most contentious cases.
Interpreting the law is a momentous task for domestic jurisdictions – even more incredibly so for international organizations composed of hundreds of states. The most common method for the UN to interpret text into practical action is through constant negotiation and conference with other states. However, when this method does not work or deteriorates the situation, sometimes the work of the International Court of Justice is needed. As the world continues to globalize and form even more interconnected bonds with states, non-state actors, and international organizations, many issues regarding globalization have made its way into the UN’s docket for interpretation and revision, such as human rights and global pollution. Currently, the UN continues to grapple with how to interpret pandemic response on an international scale, along with an ever-present task of eradicating poverty and social inequities. Interpretation is a constant process with a never-ending goalpost, as issues are resolved and others take form.
Jurisdiction. International Court of Justice. (n.d.). Retrieved from https://www.icj-cij.org/en/jurisdiction
Schachter, O. (1994). United Nations Law. The American Journal of International Law, 88(1), 1–23. https://doi.org/10.2307/2204020 Statute of the International Court of Justice. International Court of Justice. (n.d.). Retrieved from https://www.icj-cij.org/en/statute#CHAPTER_II
UNC. (n.d.). Public International Law Research: International Court of Justice. LibGuides. Retrieved from https://guides.lib.unc.edu/internationallaw/icj
United Nations. (n.d.). Charter of the United Nations. Repertory of Practice of United Nations Organs. Retrieved from https://legal.un.org/repertory/art108_109.shtml
Cover Image: Anonymous (n.d.). Unitar delivers on UN documentation. [Photograph]. Unitar. Retrieved from: https://unitar.org/about/news-stories/news/unitar-delivers-un-documentation Figure 1: Anonymous (n.d.). Preamble to the United Nations Charter. [Poster]. Wikiwand. Retrieved from: https://www.wikiwand.com/en/Preamble_to_the_United_Nations_Charter Figure 2: Anonymous (1995). Ratko Mladic organises the expulsion of women and children on July 12, 1995, under the gaze of UN peacekeepers. [Photograph]. The Guardian. Retrieved from: https://www.theguardian.com/world/2015/jul/04/how-britain-and-us-abandoned-srebrenica-massacre-1995 Figure 3: Brizzi, A. (1992). General view of the International Court of Justice [ICJ] in session. [Photograph]. MUN. Retrieved from: https://www.amun.org/international-court-of-justice-opinions-on-legal-consequences-of-the-separation-of-the-chagos-archipelago-from-mauritius-in-1965/