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Sri Lanka can seek advisory opinion from International Court of Justice about legality of UN panel

Jul 13, 2010 8:08:13 PM- transcurrents.com

by Dr. Lakshman Marasinghe

I have been back at home to witness and read the media coverage regarding the appointment of an International panel by the Secretary General of the UN to advise himself on matters pertaining to the ending of a 30 year internecine armed conflict in a member State- Sri Lanka. These are some random thoughts that I do wish to express through your columns

At the very outset I am reminded of the fact that the panel appointed was not an internal panel drawn from within the Secretariat but is a panel where its members so appointed were drawn from outside it. Therefore this is not a part of any internal enquiry but an international enquiry which the Secretary – General had himself launched without any reference to the Security Council. In my understanding of the Charter Chapter VI and in particular Articles 33, 34 and other relevant Articles of that chapter require the authorization of the Security Council for the Secretary-General to cause an investigation into the internal affairs of a member State.

However, The Secretary-General states that the charter does not apply to the empanelling of a panel merely to advise him. That is quite obviously a matter that could be disputed as the panel was not appointed to advise on something outside the concerns mentioned in Articles 33 and 34 of the Charter, such as the prevailing weather patterns over Sri Lanka.

However, as the mandate of the panel so appointed was to render advice of a particular fact which is a concern of Article VI of the Charter, it somehow befuddles my own mind when I begin to imagine this International Panel rendering its advise without making any kind of investigation into internal affairs of a member state.

This is not to say, that His Excellency has no such power to have an international panel to make an investigative determination of affairs of a member State. But such power under the Charter, in both Chapters VI and VII, have been given to the holder of that high diplomatic office to exercise subject to obtaining prior authorization , by resolution, adopted by the Security Council.

This has indeed been the custom and tradition that the Secretaries- General have in the past followed. Professor Rosalyn Higgins who holds the chair in International Law at the University of London and a judge of the World Court with reference to international bodies remarked that “- - - to remain ‘Legal’ is not to ignore everything that are not ‘Rules’. .. I am not for one moment suggesting that His Excellency was unaware of these facts.

There has been a tradition built around the Secretaries –General that when there is a need to interfere with the internal affairs of a member State he would first seek the assent of the Security Council. As I do not wish to cause a metamorphosis of this writing into an Article for a Law school Review, I shall only refer to some of the very learned writings by such eminent jurists in this area as Eli. Lauterpacht , R.Y. Jennings and Roslyn Higgins for reference.

To support my point that the Secretaries – General have no power to investigate into the internal affairs of a member State without first obtaining the authorization of the Security Council, those authorities would perhaps suffice. In any event it seems to me to be far too basic and do not require further citations.

At this point in this writing all I intend to establish was that if the panel must necessarily engage in investigating into the internal affairs of a member State so as to formulate their Advise, then there must be a prior authorization obtained from the Security Council prior to mandating it. The issue is of course a matter of mixed law and fact which is suitable for a judicial determination.

At the same time, I have a difficulty in conceiving, that, according to the nature of the mandate given to the International Panel, how it could fulfill its task, without investigating into the internal affairs of a member State. Anything short of that step in my view might produce an advise based on very thin ice which I am almost certain that His Excellency might not wish to receive. That raises a conundrum calling for an answer.

This therefore leads to the solution that might properly be sought. In my view there is an urgent need to obtain an Advisory opinion from the International Court of Justice ( ICJ ) , seeking a determination as to whether it was within the power of the Secretary-General to appoint an advisory panel mandated as he has when appointing it.

There are a number of authorities that permit a member State to seek an Advisory opinion from the ICJ where matters arising out of the Charter are in question. The Secretary-General in law, is the Alter Ego of the United Nations. His Executive acts are the acts which are imputable to the United Nations considered as a Body corporate with a distinct legal personality under International Law.

However, there are a number of authorities that support the right of a member State to seek an advisory opinion from the I.C.J regarding the exercise of powers that arise out of the Charter. Those decisions of the I.C.J . primarily deals with establishing the aforementioned legal personality of the U.N.

The three landmark decisions of the ICJ are: (1) Obtaining of an Advisory opinion on the Convention on the Privileges and immunities of the U.N in 1946; (2) Obtaining an Advisory opinion On Reparation for Injuries suffered in the service of the United Nations, [1949 I.C.J.Rep. at page 185]. and (3) the United Nations Head Quarters Agreement Case [ 1988 I.C.J. Rep. 3 ] are some of the landmark decisions that support my aforementioned view that member States in matters such as the ones mentioned here have a right to seek an Advisory opinion from the I.C. J. These decisions have received copious comments in the books on International Law.

It might therefore be suggested that an Advisory Opinion be sought from the ICJ seeking a ruling as to whether His Excellency, the Secretary –General was acting within his powers when he appointed, without prior authorization from the Security Council, an International panel to advise him on matters which may impinge upon the internal affairs of a member State.

Additionally, may I also add that upon making such an application to the I.C.J. seeking an advisory opinion the ICJ may be moved to order a halt to the work of the international panel in question, pending the opinion of that court. That may be a most effective way for determining the legality of the appointment of the panel in question.

May I add that these are my random thoughts. I do know that there are wiser counsel who may or may not support my approach to seeking a purely legal solution. I am unable to suggest a political solution to what I conceive as a matter raising an interesting point of International Law.

(Dr.Marasinghe is Emeritus Professor of Law, University of Windsor, Ontario, Canada)