SPEECH OF HIS EXCELLENCY JUDGE ABDULQAWI A. YUSUF,
PRESIDENT OF THE INTERNATIONAL COURT OF JUSTICE,
TO THE SIXTH COMMITTEE
New York, 26 October 2020
The UN@75: international law and the future we want
Mr. Chairman of the Sixth Committee,
Mr. President of the General Assembly,
Excellencies,
Ladies and Gentlemen,
1. It is a great pleasure for me to be with you, albeit remotely, at this International Law Day.
I would like to commend the Sixth Committee for its decision to celebrate the development of
international law at this seventy-fifth anniversary of the United Nations. For good reason, I should
say. Without the United Nations Charter, and the subsequent practice and work of the
United Nations organs, international law, as we know it today, would not have been there. Let me
explain.
2. The legal order created under the auspices of the United Nations is the first to be based on
the equal rights of peoples and the sovereign equality of all States. It is the first legal order, at the
international level, to be endowed with a universal vocation and to make room for the culture,
civilization and legal traditions of the peoples of all continents. That is why it is worthwhile to
recall, albeit briefly, the situation that prevailed before the United Nations Charter.
3. Let us take as an example the predecessor of our Court, the Permanent Court of
International Justice, which was established in 1922 pursuant to Article 14 of the Covenant of the
League of Nations. There is no doubt that the Permanent Court of International Justice played, in
the inter-war period, an important role in the advancement of the rule of law at the international
level. However, its role was hamstrung by the exclusion of more than half of humanity from
participating in, or contributing to, the shaping of an international legal order. Thus, claims
concerning the territories or the resources of African and Asian countries, for example, were
litigated before the Court between colonial powers and other European States, while the peoples
and territories most closely affected were excluded from the proceedings, because they were not
considered to be subjects of the law which prevailed at the time.
4. Those cases included the Nationality Decrees in Tunisia and Morocco, between France
and Great Britain; the Mavrommatis case, which was between Greece and the United Kingdom;
and the Oscar Chinn case, which was between the United Kingdom and Belgium. No Moroccans
or Tunisians, no Palestinians, no Congolese were there to defend their interests. The very existence
of such a situation was averse to the development of international law.
5. This situation changed with the adoption of the United Nations Charter 75 years ago. It
changed, among other things, because of the determination expressed in the preamble of the
Charter “to reaffirm faith in fundamental human rights, in the dignity and worth of the human
person, in the equal rights of men and women and of nations large and small” (United Nations
Charter, preamble, para. 2).
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6. It changed because relations among nations would henceforth be based, under Article 1 of
the Charter, “on respect for the principle of equal rights and self-determination of peoples”. It
changed because all Members of the United Nations were required under Article 2 of the Charter to
“refrain in their international relations from the threat or use of force against the territorial integrity
or political independence of any state”. These purposes and principles of the United Nations
Charter laid down the groundwork for the development of an all-inclusive international law,
respectful of human rights and the rights of all peoples and nations, be they large or small, weak or
powerful. It took, however, some time for these changes to take hold on the international plane.
7. For example, in the case of our Court, even in 1966, six years after the adoption by the
United Nations General Assembly of resolution 1514 (XV) on the basis of the principles of the
Charter, the Court failed to acknowledge fully in the South West Africa cases the changes brought
about in the international legal order by the fundamental principles of the Charter (see South West
Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment, I.C.J.
Reports 1966).
8. I can proudly state today that the Court was able to recover swiftly from this mishap, and
to contribute substantially in subsequent years to the progressive development of the law of the
Charter. How did it do that?
9. It did so by recognizing in the Namibia Advisory Opinion, among others, that in the
domain of decolonization, as elsewhere, “the corpus iuris gentium has been considerably enriched,
and this the Court, if it is faithfully to discharge its functions, may not ignore” (Legal
Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971,
para. 53). It also observed in the same Advisory Opinion that
“viewing the institutions of 1919 [that is the League of Nations and its system of
mandates], the Court must take into consideration the changes which have occurred in
the supervening half-century, and its interpretation cannot remain unaffected by the
subsequent development of law, through the Charter of the United Nations and by way
of customary law” (ibid.).
10. By recognizing in this Advisory Opinion, and in others such as Western Sahara and
Chagos, the existence in international law of the right of peoples to self-determination, the Court
contributed to the realization of this fundamental right, which is a precondition for the existence of
all other human rights.
11. Already in the Barcelona Traction case, the Judgment on which was delivered in 1970,
only four years after the South West Africa cases, the Court laid the groundwork for its subsequent
pronouncements on human rights, and their primordial importance in the international legal order
established by the United Nations Charter, through its famous dictum on erga omnes obligations. It
described these obligations as obligations derived, in contemporary international law (and this
reference to contemporary international law is very important here), from the outlawing of acts of
aggression, and of genocide, as also from the principles and rules concerning the basic rights of the
human person, including protection from slavery and racial discrimination (Barcelona Traction,
Light and Power Company, Limited, (Belgium v. Spain), Second Phase, Judgment, I.C.J.
Reports 1970, paras. 33-34).
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12. Thus, apart from its unusual and unfortunate stumbling in the South West Africa cases,
one can say that the Court has significantly contributed and will continue to contribute to the
development of international law in general, and to human rights law in particular, and has
strengthened the basis for the future development and protection of human rights.
13. Turning now briefly to the Court and the development of the international law of the
environment; the role played by the Court is not extraneous to the fact that this area of international
law is usually referred to as a branch of the law developed by the courts. In 1996, in its Advisory
Opinion on the Legality of the Threat or Use of Nuclear Weapons, the Court clearly reaffirmed the
existence of the general obligation of States to ensure that activities within their jurisdiction and
control respect the environment of other States or areas beyond national control, and referred to it
as “part of the corpus of international law relating to the environment” (Legality of the Threat or
Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), para. 29). And the Court went
even further by specifying the rationale and legal basis of the duty of all States to protect the
environment. It explained that “the environment is not an abstraction but represents the living
space, the quality of life and the very health of human beings, including generations unborn” (ibid.,
para. 29). Here, the Court made a link between human rights and the protection of the environment.
It insisted on the protection of the rights not only of those human persons who are alive today, but
also the rights of generations unborn, thus emphasizing our role as custodians of the environment
for future generations.
14. A key principle of international environmental law is the principle of prevention, which
the Court described in the Pulp Mills case “as a customary rule [that] has its origins in the due
diligence that is required of a State in its territory” (Pulp Mills on the River Uruguay (Argentina v.
Uruguay), Judgment, I.C.J. Reports 2010 (I), para. 101). Also in Pulp Mills, the Court significantly
underlined that the requirement of an environmental impact assessment in a transboundary context
was to be considered as a customary law obligation (ibid., para. 204).
15. Finally, in 2018, in its first case on compensation for environmental damage, namely the
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) case,
the Court held that “damage to the environment, and the consequent impairment or loss of the
ability of the environment to provide good and services, is compensable under international law”. It
further pointed out that such compensation may include two types of reparation:
(1) indemnification for the impairment or loss of environmental goods and services in the period
prior to recovery; and (2) payment for the restoration of the damaged environment (Certain
Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation,
Judgment, I.C.J. Reports 2018 (I), paras. 42-43). The Court therefore laid down, for the first time in
a judgment by an international court, the principles and parameters to be applied in cases on
compensation for environmental damage.
16. To conclude, Mr. Chairman, let me say the following. As long as there was no rule of
law at the international level, almost everything was permitted: world wars, barbarism, widespread
atrocities without any accountability, colonization and oppression of peoples, enslavement of
human beings, and destruction of the human environment. With the United Nations Charter,
humanity has for the first time laid down the basis of a rule of law at the international level, based
on the equality of all nations before the law and undergirded by the clear principles of the Charter.
That in itself is a major achievement in human civilization.
17. However, for a rule of law to prevail at the international level, as stated in the preamble
of the United Nations Charter, conditions must be established “under which justice and respect for
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the obligations arising from treaties and other sources of international law can be maintained”
(United Nations Charter, preamble, para. 3). One of those conditions is the existence of an
international court of universal and general jurisdiction that can act as a guardian of the rule of law
and contribute to its progressive development. This is what the ICJ represents and that is the reason
why it has played the role I have just described in the development of international law in the past
75 years, in addition to its main mission of the peaceful settlement of disputes among States. I am
confident that it will continue to play an even more important and more influential role in the
future.
18. I thank you for your kind attention.
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The UN@75: international law and the future we want, speech of H.E. Mr. Abdulqawi A. Yusuf, President of the International Court of Justice, to the Sixth Committee of the General Assembly