PRESS BRIEFING BY UN LEGAL COUNSEL

4 March 2004

PRESS BRIEFING BY UN LEGAL COUNSEL

04/03/2004
Press Briefing

PRESS BRIEFING BY UN LEGAL COUNSEL

The past 10 years had been a remarkable time in the field of international law and in the Organization’s history, the Under-Secretary-General for Legal Affairs and United Nations Legal Counsel, Hans Corell, told correspondents at a Headquarters wrap-up press briefing today.

Briefing correspondents on the eve of his departure from the Organization after 10 years of service, Mr. Corell noted certain landmark achievements during his tenure as the United Nations’ top legal official, including the entry into force of the Law of the Sea Convention -- a major contribution to international peace and security.  Often referred to as the “Constitution of the Oceans”, it was difficult to tell how many potential conflicts had been solved by the Convention’s very existence.

The Security Council had also set up two criminal tribunals, namely, the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, he said.  The Council’s initiative had led to the speeding up of an issue on the General Assembly’s agenda since the late 1940s, namely, the creation of an International Criminal Court.  In 2002, the Rome Statute had entered into force, and today, there were 92 States parties to it.  The relationship agreement was now being discussed between the Court and the United Nations.

There had also been developments in many other fields, including in Cambodia and in Sierra Leone, he said.  Next week, he would, as a “last mission”, participate in the opening of the court house in Freetown.  The way in which the Security Council had acted over the last years had made a great difference to international law.  Some of the Council’s resolutions, however, had given the Legal Office difficult issues to handle.

He said he had reflected on such issues in a statement entitled “Prospects for the Rule of Law among Nations”, which he had delivered in Vienna on 24 February.  His Vienna office was being upgraded to a full division and would focus not only on serving the United Nations Commission on International Trade Law (UNCITRAL), but also on assisting States technically to implement the conventions and the model laws that the Trade Law Commission had adopted.  It was not only a technical business matter, but also an issue of peace and security.  States must be able to participate in world commerce.  Unless they had the proper legal system for that, they were at a disadvantage.  The statement was available on the Legal Counsel’s Web site. 

In terms of the international architecture, did he see any unfinished business that still needed to be carried out by the international community? a correspondent asked.

Mr. Corell replied that, if viewed in a long-term perspective, there would always be unfinished business on the international agenda.  The question was how to solve that business.  In the past, conflicts had been solved by the use of arms.  The Organization had been created in 1945 to provide a way for States to discuss and resolve their disputes.  The purpose was to create a rule-based international society.

Looking at the more immediate future, he said States needed to pay more attention to the way in which they applied international law.  “Certainly, we are heading in the right direction”, he added.

The law produced by the United Nations over the years was quite impressive, he said, adding that the Treaty Section’s Web site received more than 1 million hits per month.  The Secretary-General’s strategy had been to have treaty events in connection with the General Assembly.  The non-governmental organization community, the private sector and civil society now had greater access and were participating in a much more organized way than in the past.  “When all these good forces came together, it would be possible to steer the world community on a course towards rule of law in international relations”, he stated.

Regarding his future plans, he said he had been an ambassador in the Swedish Foreign Service since 1984.  He would return to that position until 1 July and would then retire after 42 years in public service.

The International Criminal Court had filled a critical gap, a correspondent noted.  Were there any other such critical gaps?

Mr. Corell said he would like to see more States come on board as States parties to international treaties, and he was confident that more States would do that.  He was particularly concerned with the state of the global environment and had had the responsibility of providing the General Assembly with a report on the Law of the Sea.  The oceans, which constituted some 70 per cent of the globe, were deteriorating.  Another issue was desertification.  It was important to look at the protection of the environment so that the humankind could live on the globe with dignity in the future.

Asked if the Organization was heading in the right direction, Mr. Corell noted that the period since the Organization’s establishment in 1945 was relatively short in the life of the world.  The Berlin Wall, which had frozen the situation in the Security Council, had only come down in 1989.  The Council was now acting in a different manner.  Even if the Organization was not used immediately in a particular situation, eventually States returned to it.  There was growing legitimacy in the Organization.  Many Member States, in particular small States, saw international law as their first line of defence.

The powerful States also saw the Organization as important, because they were unable to do everything themselves, he continued.  Being a great and powerful nation was not an enviable position.  Powerful nations had to face up to great demands.  To unburden themselves, they turned to the Organization.  He hoped they would see the United Nations as an important tool for solving common problems.  He wanted to see an Organization of democratic States produced through a democratic process at home.  If such an Organization existed, then it could better take care of the world’s problems.  There would always be States that fell outside of the framework.  The more States that could join hands, however, the more efficient the Organization’s work would be.

What would be the legal recourse of the United Nations in terms of the United Kingdom’s bugging of the Secretary-General? a correspondent asked.  Mr. Corell said he had been away when the matter had come up.  He had been briefed, however.  The Secretary-General was trying to solve the issue with the Government in question.  It would not be helpful for him to comment on the issue.

Asked whether he was disappointed with the Cambodia and Sierra Leone Courts, he said there was clear legal distinction between the Sierra Leone and the Cambodian efforts.  The Council under Chapter VII of the Charter had established the former Yugoslavia and Rwanda Tribunals.  In the case of Sierra Leone, there was a Council resolution, not establishing the court but asking the Secretary-General to negotiate an agreement with the Government to establish the court.  That agreement had been signed on 16 January 2002, and the Government had very quickly come on board.  The court was mixed in the sense that there were judges from Sierra Leone and judges appointed by the Secretary-General.  It was also an international institution as it was based on an international agreement.  The issue there was not its jurisdiction or composition, but its financing.  The Secretary-General would have preferred assessed rather than voluntary contributions.  Personally, he thought courts should be financed through assessed contributions.

Cambodia was a different matter, he continued.  In that case, there had been a request by the Government to assist them. At first, neither the Security Council nor the General Assembly took any action, so the Secretary-General had tried his best to negotiate a reasonable agreement with the Government.  Eventually, he had withdrawn from the negotiations on 8 February 2002.  All States did not agree to that, and went an extra round.  There were a number of discussions with the Government in Phnom Penh.  Eventually, the General Assembly had asked the Secretary-General to resume negotiations.  The agreement eventually signed by his counterpart, Sok An, on 6 June 2003 was at a high level from a legal point of view.  The Cambodian Parliament had not yet ratified the agreement.  In a letter he had recently received, Sok An had expressed his hopes that the Court would soon be established.

In response to another question, he said it was no secret that the Office of Legal Affairs would have preferred an international tribunal.  That was not the will of the Government or the General Assembly, however.  The process should be given the benefit of the doubt.

If a court were to be set up for war crimes in Iraq, would the fact that the original premise of the war, namely weapons of mass destruction, had not held, have any legal bearing on the nature of the court? a correspondent asked.

Basically, it was for a prosecutor and later for a court to assess issues related to prosecutions, he replied.  A prosecutor would have to act on a particular act or deed committed by someone.  It would have to be framed in such a way that a court would assess whether it fell under a criminal provision in a criminal code.  The person would then be either acquitted or sentenced.  For the International Criminal Court to have jurisdiction, there would have to have a situation described in detail in the Rome Statute.  On the specific question, he would rather hold his peace and allow prosecutors to look at the situation.

In response to a question on Security Council resolution 1441 concerning Iraq, he said he did not think it was appropriate for him to express an opinion on the matter.  The Council construed its own resolutions.  If members took action, the Council would then have its say.  When consulted by the Council, he had said that the facts were there.  While all members might not approve of or like those facts, they had an obligation to act on them under Article 39 of the Charter.  That was what the Council had done.  He had also said that there could only be one government in Iraq.  He understood that it was the Coalition that now governed Iraq.  Also, it was important to be clear.  When a resolution was adopted, people had to understand exactly what the Council meant.  That had led to some changes in the draft that had eventually become resolution 1483.

Regarding that resolution, not only did the Council recognize a situation of an occupation, it had given an additional mandate to the Coalition, he said.  Certain operative paragraphs of the text had included an additional element.  An occupant was not allowed to engage in how a country should be governed in the future.  But that was precisely what the Council had asked the Coalition to do.  The resolution was interesting from a legal perspective, in that it mixed existing law of occupation with additional law that the Council formulated in its resolution.

Responding to another question, he said a debate was currently under way on the issue of legitimacy.  The General Assembly was looking at its own working methods.  The Security Council had asserted itself more powerfully than in the past, and there were discussions on how far the Council could go in establishing international law.  In the past, he had wondered if the Council could establish an international criminal court.  He had been doubtful that the Council could do that politically and legally.  But then, in 1993, the Security Council had established the Court.  The question was how far the Council could go.  The ultimate judges were the Organization’s membership.  If there were major protests against what the Council was doing, one risked undermining the Organization.  “We are in a very interesting period”, he said. 

On the relationship between the Council and the General Assembly, he said that normally international law was created through negotiations, leading to treaties, which were then presented to national parliaments.

Had he seen the United States increase or decrease its willingness to be constrained by international law? a correspondent asked.  He said it was a dilemma that would never go away with respect to who was the super-Power at a given point in time.  The dilemma was that there was no supreme judge.  At the end of the day, a super-Power could always act in a way it deemed appropriate.  In that situation, the knowledge, experience, vision and the statesmanship of the United Nations was needed.

Responding to questions on the matter of Israel’s construction of the barrier before the International Court of Justice (ICJ), he said his Office had provided the ICJ with material as requested by the Court in all cases where the Court was asked to give an advisory opinion.  It was an outflow of the General Assembly resolution.  The Secretary-General decided that the Organization would not appear before the Court during the oral arguments.  As the matter was before the Court, it would be inappropriate for him to comment on it.

Asked whether there was a legal basis for the Secretariat’s decision not to allow certain people to address the brief, in particular, the decision last year to bar a representative from Taiwan from briefing correspondents on the subject of Severe Acute Respiratory Syndrome (SARS), he said the Secretary-General had a responsibility for how the Building was used.  He had to base his considerations on resolutions adopted by the Assembly.  They were very delicate questions.  As one who believed firmly in the freedom of speech, they were extremely delicate matters.  He could not comment on the advice he gave to the Secretary-General.

In the debate over the scope of the ICC and the Security Council, did the Council have the right to re-craft, in a back door way, international treaties where signatories outside of the Council did not have the ability to weigh in on the Council’s decisions? a correspondent asked. 

Responding, he said one had to remember what had happened in the summer of 2002.  The Council had had before it a resolution that would have automatically required the Secretary-General to write to the President of the ICC every year that all peacekeepers were exempt.  The Secretary-General had then become engaged in the Council’s discussion on the matter.  The Council had reconsidered the issue and had given itself some additional days to deliberate on the matter, namely, from 3 to 15 July 2002.  The Secretary-General was travelling in Africa and had followed the negotiations very closely.  Sir Jeremy Greenstock of the United Kingdom, who was the President of the Council at the time, had wanted to solve the issue on 12 July.  The resolution adopted then was quite different from what had been contemplated from the beginning.  The ICC would have to construe the Statute when faced with a case.  The likelihood that a case would occur was almost nonexistent.

Regarding his relationship with the United States, he said most States found it difficult to deal with legal advisors.  A legal advisor had to try his or her best to construe the law and give advice.  He was not aware that the Americans had had a particular difficulty with him.  He had always had good relations with them.  While there had been issues, he did not know if there were any particular issues.  His expertise was in matters of State law.  He had dealt extensively with those questions.

Asked whether there was a legal basis for preventing Saddam Hussein for running from Iraq’s Parliament, he said he received many questions on Saddam Hussein and felt uncomfortable getting into the matter.  He had, in fact, met him together with the Secretary-General in February 1998.  Saddam Hussein was now a prisoner of war.  The Government that would take over from the Coalition would have to set up some way to try those suspected of crimes.  It was not appropriate for him to discuss the matter further.

Regarding outer space law, he said there were several treaties on outer space that focused on specific issues, including the use of nuclear fuel, geostationary orbit and space debris.  Outer space issues would have to be discussed by States.  He did not deal specifically with outer space issues.  There could be room for additional agreement among States on those issues.

Concerning the expansion of the Council, he said it was a political question.  There was a limit on how big the Council could be without losing its efficiency.  The bigger it became, the more difficult it would be for it to organize itself.  As a lawyer, he deferred on the issue, as it was a political issue.

Regarding his concept of the rule of law, he said it was a concept that came from the national level.  What he meant by the rule of law was that there should be a rule-based international society.  All should be bound by the agreements to which they had adhered.  That was what characterized rule of law.  The legislature had to bow to the dictates of the same laws it had adopted.  It seemed that the rule of law was being forgotten.  That was why the Secretary-General had taken such a firm stance on the matter in his Millennium Report.

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For information media. Not an official record.