International Law Aspects of the 2005 World Summit Outcome Document

On September 16, 2005, at United Nations headquarters, more than 150 Heads of State and Government adopted the 2005 World Summit Outcome document, consisting largely of a set of goals and principles for the United Nations and its members.[1] The coverage is broad, including such matters as international economic and social development, peace and collective security, human rights and the rule of law, and strengthening the United Nations. This Insight discusses only those parts of the document that relate significantly to international law.

 

Most of the document's references to international law are quite general. For example, paragraph 2 reaffirms the world leaders' "faith in the United Nations and our commitment to the purposes and principles of the [UN] Charter and international law, which are indispensable foundations of a more peaceful, prosperous, and just world, and [we] reiterate our determination to foster their strict respect." That is a reaffirmation by world leaders of the importance of international law, but it would have very limited significance in resolving actual disputes and situations.

 

Peace and Collective Security

 

The document emphasizes the obligation of all States to settle their disputes peacefully, "including, when appropriate, by the use of the International Court of Justice." (Paragraph 73.) It does not set forth any standards to determine when it would be appropriate to use that Court. The same paragraph says that States "should" act in accordance with the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States[2] (a declaration contained in a UN General Assembly resolution that imparts some specificity to the peaceful dispute resolution provisions of the UN Charter). The previous draft of the document contained imperative language. It said that States "shall" act in accordance with the Declaration. If that language had been adopted, it would have further strengthened the argument that the principles in the Declaration are authoritative interpretations of the UN Charter, which itself is a treaty binding on all UN member States.

 

In paragraph 79, the leaders reaffirmed "that the relevant provisions of the [UN] Charter are sufficient to address the full range of threats to international peace and security. We further reaffirm the authority of the Security Council to mandate coercive action to maintain and restore international peace and security." The leaders apparently were referring to the provisions of Chapter VII of the Charter, which authorize the UN Security Council to decide on the use of coercive measures, including the use of armed force, when there is a threat to the peace, breach of the peace or act of aggression. The leaders appear to be saying that no Charter amendments are needed in order to enable the UN to deal with threats to the peace, such as terrorism, that were not contemplated when the Charter was drawn up. Possibly, but not clearly, they were also saying that apart from uses of armed force expressly recognized in the Charter (Security Council authorization under Chapter VII or self-defense in case of an armed attack), coercive action to deal with a threat to the peace could not be justified under the Charter.

 

Elsewhere in the document, the leaders addressed terrorism explicitly. Among other things, they "stress[ed] the need to make all efforts to reach an agreement on and conclude a comprehensive convention on international terrorism during [the current] session of the General Assembly." (Paragraph 83.) The previous draft had gone further. In it, the leaders would have "resolved" to conclude such a convention, including a legal definition of terrorism, during the current session. Thus the adopted document softens the stated intention to conclude the convention in the present session (which will run until next fall), and removes the stated intention to define terrorism. There currently is no universally-accepted, comprehensive definition of terrorism in international law. Presumably in light of the difficulty in agreeing on such a definition, the final document removed a definition that appeared in the previous draft.

 

The leaders "recogniz[ed] that international cooperation to fight terrorism must be conducted in conformity with international law, including the Charter and relevant international Conventions and Protocols. States must ensure that any measures taken to combat terrorism comply with their obligations under international law, in particular human rights law, refugee law and international humanitarian law." (Paragraph 85.) This statement substituted mandatory language ("must") for nonmandatory language ("should") in the previous draft. The second sentence applies to all States, even when they act unilaterally. Moreover, it recognizes the applicability of the three specific bodies of international law it mentions, apparently including customary rules as well as rules emanating from treaties. Quite a few rules appearing in treaties on human rights (such as rules on civil and political rights without particular reference to terrorism) and humanitarian law (the law relating to treatment of noncombatants in times of armed conflict) are widely regarded as reflective of customary international law, and thus could be binding even on States that are not parties to the treaties.

 

The leaders expressed support for the early entry into force of the International Convention for the Suppression of Acts of Nuclear Terrorism[3] (paragraph 91), and several of them signed the Convention during the summit meeting. The Convention will enter into force after 22 States have ratified it.

 

Problems of post-conflict peacebuilding and reconciliation were also addressed. The leaders decided to establish a Peacebuilding Commission as an intergovernmental advisory body to marshal resources and advise on strategies for post-conflict recovery. (Paragraphs 97-98.) The Commission would meet in various configurations, with temporary members added to it when it convenes country-specific meetings. It is supposed to act on the basis of consensus of its members, which would include representatives of the country in question. If the Peacebuilding Commission acts without the approval of that country's government, its operations could raise issues under UN Charter Article 2(7). That provision says that nothing in the Charter authorizes the UN to intervene in matters essentially within the domestic jurisdiction of any state, unless the intervention is in the form of a Security Council enforcement measure under Chapter VII. But the Charter does not define what is essentially within "domestic jurisdiction," and UN practice since the Charter was adopted has chipped away the argument that a State's treatment of its own citizens would necessarily be within the concept.

 

The Security Council's Chapter VII powers include the authority to impose mandatory economic sanctions on States that endanger international peace and security. This authority has been exercised several times. Usually the Security Council has tried to soften the impact of the sanctions on innocent persons in the targeted country by exempting such items as essential foodstuffs and medical supplies. Nevertheless, often the sanctions have had greater adverse effect on ordinary civilians than on their governments. Consequently the leaders resolved to ensure that future sanctions are carefully targeted and are weighed against their possible adverse consequences for populations and third States. (Paragraph 106.) In addition, the leaders called for effective monitoring of sanctions and termination once the objectives have been achieved. (Paragraph107.) The document, however, does not specify how these principles can be implemented more effectively than they have been in the past.

 

Human Rights

 

The UN Charter contains references to respect for human rights, without spelling out specific rights. In the sixty years since the Charter was adopted, many multilateral treaties have entered into force specifying the content of internationally-recognized human rights and, in many cases, providing means of supervising their enforcement. In addition, in 1948 the UN General Assembly adopted the Universal Declaration of Human Rights,[4] which sets forth several civil, political, economic, social and cultural rights.

 

When the General Assembly adopted the Universal Declaration, it was regarded not as a statement of legal obligation, but rather as a common standard for all nation-states to work toward. Over the ensuing years, though, the Universal Declaration has increasingly been regarded within UN circles and elsewhere as a statement of rules and principles having the status of international law. It is mentioned in the World Summit Outcome document, but not expressly as a legally binding instrument. Instead, the leaders used the hortatory language of the Declaration in reaffirming the commitment of their States to fulfill their obligations to "promote" universal respect for, and observance and protection of all human rights and fundamental freedoms "in accordance with the Charter, the Universal Declaration of Human Rights and other instruments relating to human rights and international law." They added, "The universal nature of these rights and freedoms is beyond question." (Paragraph 120.) The previous draft had contained stronger language. It would have recommitted the leaders to "the full implementation of the human rights standards contained in the Universal Declaration of Human Rights and other human rights instruments."

 

Although the document as finally adopted does not expressly call for full implementation of the standards in the Universal Declaration, it appears to recognize that the Declaration has legal significance (since it is among the instruments "relating to human rights and international law") rather than simply being a political statement of goals.

 

There has been contention in the international community about whether the fundamental human rights set out in such instruments as the Universal Declaration are primarily reflections of Western culture that might not apply to all countries, or whether they represent universal standards. The United States has consistently taken the latter view, and the world leaders seem to have adopted it in the last sentence of Paragraph 120, quoted above, and in Paragraph 121, which reaffirms that all human rights are universal. Paragraph 121 goes on to acknowledge cultural differences, but refrains from endorsing them as sufficient grounds for applying different basic standards. It says, "While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, all States regardless of their political, economic and cultural systems have the duties to promote and protect all human rights and fundamental freedoms."

 

The document resolves to strengthen the United Nations human rights machinery, particularly by expressing a commitment to create a Human Rights Council that "should address situations of violations of human rights, including gross and systematic violations and make recommendations thereon. It should also promote effective coordination and the mainstreaming of human rights within the UN system." (Paragraph 159.) Unlike the previous draft, the document does not expressly say that the new Council will replace the existing (and often criticized) Commission on Human Rights, which was created by the UN Economic and Social Council (ECOSOC) under its powers in UN Charter Article 68, and which presumably would have to be abolished, if at all, by ECOSOC. Nor does the document spell out the new Human Rights Council's procedures, its specific duties, its composition or the method of electing its members. (The previous draft said that the Council would, among other things, "evaluate" the fulfillment by all States of their human rights obligations, and would comprise between 30 and 50 members selected with due regard to their contributions to the promotion and protection of human rights. Under that draft, they would be elected to three-year terms by two-thirds of the General Assembly.) The final document requests the President of the UN General Assembly to conduct negotiations during the current General Assembly session with the aim of filling in all the details. (Paragraph 160.)

 

The Rule of Law

 

The leaders supported the idea of a rule of law assistance unit within the UN Secretariat. It would strengthen UN activities promoting the rule of law, "including through technical assistance and capacity building." (Paragraph 134.) The details presumably will be supplied by a report the Secretary-General is to submit to the General Assembly.

 

In the same paragraph, the leaders recognized the important role of the International Court of Justice (ICJ), and called on States to consider accepting the jurisdiction of the Court in accordance with its Statute if they have not already done so. Presumably the reference is to Article 36(2) of the ICJ Statute, which gives States parties to the Statute the option to declare that they recognize as compulsory, in relation to any other State accepting the same obligation, the jurisdiction of the Court over international legal disputes. In 1946 the United States exercised that option, subject to three exceptions including the Connally Reservation, which withheld consent to the submission of disputes regarding matters that the United States considered to be essentially within its own domestic jurisdiction. In 1985, after Nicaragua had brought the United States before the ICJ under Article 36(2), the United States exercised its right under the Statute to revoke its Article 36(2) acceptance of the Court's jurisdiction. (The United States is still bound by Article 36(1), which provides for case-by-case submission of disputes to the Court.) It is unlikely that the United States will soon reinstate its optional acceptance of the Court's jurisdiction under Article 36(2).

 

The draft document called on States to make greater use of the ICJ's advisory opinions, but the final document does not mention the Court's advisory jurisdiction. In any event, States are not authorized to ask the ICJ for advisory opinions. Only the UN General Assembly, the Security Council and certain other organs and UN agencies may request them.

 

The Responsibility to Protect Populations from Genocide and Other Serious International Crimes

 

The international community has been criticized for its failure to intervene to protect civilian populations in the former Yugoslavia, Rwanda and Sudan from mass violence. The world leaders responded by saying that they "are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the UN Charter, including Chapter VII, on a case by case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law." (Paragraph 139.) Under Chapter VII, the action could include the use of armed force. The Security Council's authority to use force under Chapter VII remains somewhat controversial if the populations directly affected by acts of violence -- even mass violence -- are entirely within a single State. In paragraph 139, the world leaders did not limit themselves to responses to acts of violence that spill over into territory outside the primarily-affected State. Consequently, their assertion could be viewed as a legally-significant interpretation of the scope of Security Council authority in situations of mass violence within a single State.

 

A question that might be raised is whether the language quoted above from Paragraph 139 implies that in the absence of Security Council authorization, individual States may not invoke the doctrine of humanitarian intervention to protect populations in other States from the enumerated crimes. The legitimacy of humanitarian intervention without Security Council approval is controversial. Whether the world leaders intended to address it in Paragraph 139 (or in Paragraph 79, discussed above) is unclear.

 

Security Council Reform

 

There has been extensive discussion at various times in recent years, including intensive discussion in the past year, about increasing the size of the Security Council and adding permanent members to it.[5] At present the Council has 15 members, including the five permanent members (China, France, Russia, the United Kingdom and the United States) with veto power. Recent discussions have focused on increasing the size of the Council to 24 or more members, and on possibly adding Brazil, Germany, India and Japan as permanent members (with or without veto power). The final document does not tackle the contentious issues. It simply says, "We support early reform of the Security Council as an essential element of our overall efforts to reform the United Nations, in order to make it more broadly representative, efficient and transparent, and thus to further enhance its effectiveness and the legitimacy and implementation of its decisions. We commit ourselves to continue our efforts to achieve a decision to this end and request the General Assembly to review progress on the reform set out above by the end of the year." (Paragraph 153.)

 

UN Dues

 

The UN Charter provides in Article 17(2), "The expenses of the Organization shall be borne by the Members as apportioned by the General Assembly." The world leaders said in the final document, "We stress that all Member States should meet their obligations with regard to the expenses of the Organization." (Paragraph 161(e).) The United States and several other countries are substantially in arrears in their payment of the expenses apportioned to them by the General Assembly.

 

Development

 

The document contains 52 paragraphs on economic and social development, stressing intentions, goals and principles, including the intention to realize a set of objectives known as the Millennium Development Goals, without recognizing a legal obligation to provide specific amounts or types of assistance to developing countries.

 

Disarmament and Non-proliferation

 

The draft document contained several paragraphs on disarmament and non-proliferation of nuclear weapons, including a "firm commitment" to the Nuclear Non-Proliferation Treaty. The final document omits those paragraphs.

 

UN Charter Revision

 

Any increase in the size of the Security Council, or any additions to its permanent membership, would require an amendment of the UN Charter. As noted above, the leaders did not agree on any specifics of Security Council reform. They did agree that the Charter provisions on the UN Trusteeship Council should be deleted, since that Council is now defunct. Further, they resolved to delete Charter references to World War II "enemy states." They also requested the Security Council to consider the composition, mandate and working methods of the Military Staff Committee. That committee, established under Article 47 of the Charter to advise and assist the Security Council, has not played a significant role in the Security Council's deliberations.

 

Amendments to the UN Charter must be ratified by two-thirds of the members of the UN, including all of the permanent members of the Security Council.

 

Conclusion

 

The final document is considerably less specific than the previous draft document was. Nevertheless, it contains provisions that relate significantly to international law, and it contemplates two new UN bodies - the Peacebuilding Commission and the Human Rights Council - that are intended to respond meaningfully to pressing needs. The shape those bodies will take, and the shape a reformed Security Council might take, remain to be seen.

 

About the author

Frederic L. Kirgis, an ASIL member, is Law Alumni Association Professor of Law Emeritus at Washington and Lee University. He has written books and articles on international law, including a book on the law of international organizations, and is an honorary editor of the American Journal of International Law. The author is grateful to José Alvarez for his helpful comments on a draft of this Insight. Any errors or omissions are the author's own.

 

Footnotes

[1] Available at http://www.un.org/summit2005/Draft_Outcome130905.pdf.

[2] UN General Assembly Resolution 2625 (XXV), 9 International Legal Materials 1292 (1970).

[3] 44 International Legal Materials 815 (2005).

[4] UN General Assembly Resolution 217A, 3 General Assembly Official Records, Resolutions (A/810), at 71.

[5] For a particularly thoughtful analysis, see the report of the UN Secretary-General's High-Level Panel on Threats, Challenges and Change, "A More Secure World: Our Shared Responsibility" (2004). The report is discussed in ASIL Insight, International Law and the Report of the High-Level U.N. Panel on Threats, Challenges and Change (Dec. 2004), available at .

[6] For further discussion, see Patrick J. Flood, "The World Summit and the Road Ahead" (Sept. 26, 2005), available at <www.unweek.blogspot.com> or by e-mail from JnCarey@westnet.com.