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Max Planck Encyclopedia of Public International Law [MPEPIL]

United Nations (UN)

Jochen A Frowein

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 22 January 2019

Subject(s):
Universal international organizations

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Origins

When the United Nations Charter was adopted in San Francisco on 26 June 1945, World War II had ended on the European continent but still continued in the Pacific. The decision to establish an organization embracing all countries in the world to preserve the peace after the war had come to an end goes back to the Atlantic Charter (1941) of 14 August 1941 (204 LNTS 384), in which President Franklin D Roosevelt and Prime Minister Winston Churchill declared that ‘after the final destruction of the Nazi tyranny, they hope to see established a peace which will afford to all nations the means of dwelling in safety within their own boundaries’ (at Principle 6). The two statesmen also expressed their desire ‘to bring about the fullest collaboration between all nations in the economic field with the object of securing, for all, improved labour standards, economic advancement, and social security’ (at Principle 5). On New Year’s Day 1942 the Declaration by the UN was signed in Washington DC (204 LNTS 381), and 26 governments subscribed to the common programme of purposes and principles embodied in the Atlantic Charter.

The first concrete steps towards the creation of the UN were taken during the late summer of 1944 at the Dumbarton Oaks Conference (1944), Washington DC, by representatives of the Soviet Union, the UK, and the US and, in a second phase, also by those of China. The Four Powers reached a number of agreements—which came to be known as the Dumbarton Oaks Proposals—on the purposes and principles of the organization, its membership, and principal organs. Although the permanent representation of the ‘Big Five’ (including France) in the central organ for the preservation of the peace—the UN Security Council—was already agreed upon, the voting procedure to be used in the Council could not then be settled. This question was later discussed at the Yalta Conference (1945), and the three participants, Churchill, Roosevelt, and Stalin, accepted the voting formula which was later embodied in Art. 27 UN Charter. The invitation to the ‘Conference of United Nations’ which met at San Francisco from 25 April to 26 June 1945 for the preparation of the Charter was sponsored by the US, the UK, the Soviet Union, and China, France having decided not to act as a sponsoring nation. The Conference adopted the UN Charter, which entered into force on 24 October 1945 (see also United Nations Charter, History of). There were 51 original members of the organization. In 2013 the number of members was 193.

The organization of the UN was conceived as an answer to the failure of its predecessor, the League of Nations. The important innovations of the UN were the complete outlawing of the use of force between States except in self-defence, and the system of collective security, with the UN Security Council having the competence to take action by military force (see also Use of Force, Prohibition of).

B.  Structure

According to Art. 7 UN Charter, the principal organs of the UN are: the General Assembly (United Nations, General Assembly), the Security Council (United Nations, Security Council), the Economic and Social Council (United Nations, Economic and Social Council [ECOSOC]), the Trusteeship Council (United Nations Trusteeship System), the International Court of Justice (ICJ), and the Secretariat. The most important organs for realizing the principal function of the organization, ie to keep the peace, are the Security Council, the General Assembly, and the Secretary-General (United Nations, Secretary-General).

The Security Council has ‘primary responsibility for the maintenance of international peace and security’ (Art. 24 (1) UN Charter) and is composed of the five permanent members (China, France, Russia, the UK, and the US) and 10 members elected for two years, having regard to equitable geographical distribution (Art. 23 (1) UN Charter). Every permanent member has the right of veto in all decisions, with the exception of procedural matters (Art. 27 (3) UN Charter). Whether a matter is procedural or not will be decided by a vote which is regarded as non-procedural because at that stage it will not have been clarified whether the matter at issue is procedural or not. This approach was laid down by a statement of the four sponsoring powers at the San Francisco Conference and has not been challenged since. Despite the wording of Art. 27 (3) UN Charter, abstention and even non-participation by permanent members has not in practice hindered the adoption of a decision. This interpretation of the UN Charter was confirmed by the ICJ in its Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) ([1971] ICJ Rep 16; South West Africa/Namibia [Advisory Opinions and Judgments]).

In the General Assembly each member has one vote; decisions on important matters require a two-thirds majority (Art. 18 UN Charter, which includes a definition of ‘important questions’; International Organizations or Institutions, Voting Rules and Procedures). The Secretary-General is appointed by the General Assembly upon the recommendation of the Security Council. According to the UN Charter, the General Assembly may consider the general principles of co-operation in the maintenance of international peace and security and discuss ‘any questions’ relating thereto and make recommendations (Art. 11 UN Charter). The decisions to maintain or restore international peace and security are to be taken by the Security Council (Chapters VI and VII un Charter). According to Art. 12 UN Charter, the General Assembly may not make any recommendations while the Security Council is exercising its functions. During the period until 1990 the Security Council has frequently been unable to reach a decision due to lack of unanimity among the permanent members. This situation led to the famous Uniting for Peace Resolution (1950) adopted by the General Assembly on 3 November 1950 during the Korean War (1950–53). The resolution confirmed the power of the General Assembly to recommend action as soon as the Security Council fails to act and when this is required by any nine members (originally seven) of the Security Council. Although initially its legality was much disputed, the possibility of calling emergency sessions of the General Assembly has been used frequently even by those States who had originally objected to the resolution.

The Secretary-General has only comparatively few functions under the UN Charter. But the other principal organs, especially the General Assembly and the Security Council, may entrust to the Secretary-General functions within the area of their competence (Art. 98 UN Charter). In practice, the Secretary-General has carried out the important role of mediator in many instances (Conciliation; Mediation).

ECOSOC is a nucleus for the many activities of the UN in the fields of economic, social, cultural, educational, health (Public Health, International Co-operation), and related matters, many of which are the final responsibility of the General Assembly. Its activities in the field of human rights have also been important and led to the adoption by the General Assembly of the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), and the International Covenant on Economic, Social and Cultural Rights (1966) (both in force since 1976). ECOSOC is composed of 27 members elected by the General Assembly. Chapters XI and XII UN Charter concerning non-self-governing territories have been the basis of a supervised and regulated process of decolonization unprecedented in history which has more than doubled the number of independent States in the world.

The ICJ based on its statute which forms an annex to the UN Charter is ‘the principal judicial organ of the United Nations’ (Art. 92 UN Charter). Of primary importance for the role of the Court within the structure of the Organization is the power of the General Assembly and the Security Council to request an advisory opinion on any legal question under Art. 96 UN Charter (Advisory Opinions). This provision may be extended by a resolution of the General Assembly to other organs and UN Specialized Agencies (United Nations, Specialized Agencies), as has happened on several occasions. The practice of the ICJ in particular since about 1980 has been of great importance for the development of international law.

C.  Development of the UN

1.  Growth of Membership

10  From the original 51 members the UN has grown to 193 by 2013. Most of the new members are former colonies which gained their independence after 1945 or States which became members after the disintegration of the former Soviet Union or of Yugoslavia. Several very small States with a population of far below one million, sometimes even below 100,000, have been admitted, although there had been discussions until 1971 over whether micro States should be allowed to become members. Only a few very small States preferred not to apply for membership, eg, Nauru and the Cook Islands. Of the States divided after World War II, the two German States, then the Federal Republic of Germany and the German Democratic Republic (‘GDR’), were admitted in 1973 (see also Germany, Legal Status after World War II). With the reunification of Germany in 1990 the Federal Republic of Germany remained a Member State while the GDR acceded to the Federal Republic and lost its membership. The reunited Vietnam was admitted in 1977. The seat of China in the UN organs was taken by the representatives of the People’s Republic of China under UNGA Res 2758 (XXVI) of 25 October 1971 (GAOR 26th Session Supp 29, 2). The two Korean States were admitted to membership in 1991. Switzerland which had not sought membership for a long period was admitted in 2002. Taiwan is the only territory with a considerable population which has not become a member and is not represented in the UN.

2.  Impact of World Politics

11  The deterioration of East-West relations after 1948, commonly called the period of the Cold War (1947–91), had a considerable influence on the UN. The veto power was used frequently by the Soviet Union, and the Security Council could not fulfil its primary task. Open hostilities in Korea, Vietnam, and the Middle East could not be prevented by the UN. The United Nations peacekeeping system developed in a direction not foreseen by the UN Charter. While military sanctions were used during this period only in connection with Southern Rhodesia (UNSC Res 221 [1966] [9 April 1966] SCOR 21st Year 5; Rhodesia/Zimbabwe) UN Forces were used several times fairly successfully with the consensus of all concerned (see also International Military Forces). Economic sanctions under Chapter VII UN Charter were applied against South Africa and Southern Rhodesia. This situation changed completely after 1990. With the fall of the Berlin Wall and the disappearance of the East-West conflict which had lasted for almost 50 years, the United Nations system, as designed in 1945, could be, for the first time, tested as to its possibilities. While binding decisions by the Security Council under Chapter VII UN Charter were practically excluded during the East-West conflict, they have become a normal occurrence since 1990. In many conflicts the Security Council has applied its competence under Chapter VII UN Charter. Economic boycotts of a far-reaching nature have been decided on the basis of Art. 41 UN Charter. Authorization to use armed force has been given by the Security Council in several instances. However, it has also become clear that States may be willing to use armed force unilaterally without formal authorization by the Security Council as happened against Iraq in 1998 and in 2003 (Iraq, Invasion of [2003]) as well as against the Federal Republic of Yugoslavia in 1999 (see also Kosovo).

3.  Charter Amendments and Proposals for Reform

12  The only amendments to the UN Charter which have been adopted since the Organization came into existence concerned the enlargement of the Security Council and ECOSOC as well as the consequences of this enlargement for the voting procedure in the Security Council. For several years discussions have been held in the ‘Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization’ with a view to amend the UN Charter. The question whether Germany, Japan, India, Brazil, and possibly other States should become permanent members of the Security Council has been discussed but no consensus has been reached. A report by a High-Level Panel ‘A More Secure World: Our Shared Responsibility’ of 2004 has addressed the issue of UN reform as well as the challenges for the Organization.

D.  Maintenance of International Peace and Security

1.  Breach of the Peace and Threat to the Peace in Art. 39 UN Charter

13  The Security Council has determined in a great number of cases that a breach of the peace occurred or a threat to the peace existed. This started in 1990 when Iraq occupied Kuwait and the Security Council immediately determined a breach of the peace and authorized Member States co-operating with the government of Kuwait to use military force (UNSC Res 661 [1990] [6 August 1990] SCOR 45th Year 19; UNSC Res 678 [1990] [29 November 1990] SCOR 45th Year 27). The Security Council also applied Chapter VII UN Charter from 1991 onwards concerning the former Yugoslavia. Since then resolutions based on Chapter VII have become normal practice of the Security Council.

14  The experience of the practice since 1990 has shown that Chapter VII UN Charter measures mainly concerned internal conflicts or conflicts which developed from internal ones into international conflicts. This happened concerning the former Yugoslavia where the former federal entities gained full sovereignty during the conflict (Yugoslavia, Dissolution of). Sometimes the Security Council expressly determined that a civil war was a threat to the peace in the region, for instance in UNSC Resolution 788 (1992) of 19 November 1992 (SCOR 47th Year 99) concerning Liberia. Concerning Haiti the Security Council decided that a threat to the peace existed because the democratic government had not been reinstated and persecution existed which could increase the number of Haitians seeking refuge in neighbouring Member States (UNSC Res 841 [1993] [16 June 1993] SCOR 48th Year 119). In UNSC Resolution 1199 (1998) of 23 September 1998 (SCOR 53rd Year 13) the Security Council affirmed that the deterioration of the situation in Kosovo constituted a threat to peace and security in the region. In this practice the Security Council based its evaluation on the recognition that States do not live in isolation and that extreme violence or human rights violations within a country is likely to destabilize a region.

15  On the basis of Art. 41 UN Charter the Security Council has introduced arms embargos, far-reaching economic sanctions, and targeted sanctions aimed at individuals. Under the system established for terrorists States are obliged to freeze economic assets of suspected terrorists. Also, travel bans have been laid down. The Security Council used Chapter VII to create a system of supervision for Iraqi petroleum sales to finance the compensation fund set up (UNSC Res 706 [1991] [15 August 1991] SCOR 46th Year 21). The Security Council also adopted the Oil for Food Programme under Art. 41 UN Charter making it possible that Iraq use special funds for foodstuff and medical supplies (UNSC Res 986 [1995] [14 April 1995] SCOR 50th Year 101).

2.  The Authorization to Use Armed Force

16  In many cases the Security Council has authorized Member States to use armed force. This happened after the invasion of Kuwait by Iraq with UNSC Resolution 678 (1990) of 29 November 1990, or with UNSC Resolution 794 (1992) of 3 December 1992 (SCOR 47th Year 63), concerning the authorization for Member States ‘to use all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia’ (at para. 10). It was clear that military means should be used in that respect. Concerning Yugoslavia the Security Council authorized the use of force in several resolutions. In UNSC Resolution 816 (1993) of 31 March 1993 (SCOR 48th Year 4) the flight prohibition which had already been established was connected with an authorization to use force. Military aircraft violating the flight prohibition were shot down on the basis of this resolution. In UNSC Resolution 836 (1993) of 4 June 1993 (SCOR 48th Year 13), the Security Council authorized Member States to take all necessary measures through the use of air power in and around the safe areas in the Republic of Bosnia and Herzegovina to support the United Nations force present there in the performance of its mandate. Concerning Rwanda, UNSC Resolution 929 (1994) of 29 June 1994 (SCOR 49th Year 10) authorized the use of force and UNSC Resolution 940 (1994) of 31 July 1994 (SCOR 49th Year 51) authorized the use of force against Haiti in a limited way. In UNSC Resolution 1244 (1999) of 10 June 1999 (SCOR 54th Year 32) the Security Council authorized Member States and relevant international organizations to establish the international security presence in Kosovo. This was again a clear authorization to use military force. Although Art. 43 UN Charter includes an obligation in principle of all Member States to make available to the Security Council armed forces, this obligation was never implemented. According to Arts 43 (2) and (3) UN Charter specific agreements had to be concluded in that respect which never happened. Therefore, the authorization for Member States to use armed force is the only possibility for the Security Council to take military action in case of a threat to or breach of the peace.

3.  Authorization for Regional Organizations to Use Armed Force

17  According to Art. 53 (1) UN Charter no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council. Enforcement action in this sense refers to the use of military force. Economic boycotts by regional organizations are lawful if they are covered by the statute of the organization and lawful under general public international law. Only for the use of armed force, where the general prohibition of Art. 2 (4) UN Charter is applicable, do regional organizations need the authorization by the Security Council. The Security Council has given this authorization in some cases but has used different wording which is not always absolutely clear. In UNSC Resolution 787 (1992) of 16 November 1992 (SCOR 47th Year 29) the Security Council gave the mandate to control maritime shipping in the Adriatic Sea and expressly stated that it acted ‘under Chapters VII and VIII of the Charter of the United Nations’ (at para. 12). This can only be seen as the formal authorization to use armed force. Indeed armed inspections of shipping were carried out by NATO and WEU naval forces. Again, in UNSC Resolution1132 (1997) of 8 October 1997 (SCOR 52nd Year 83) the Security Council authorized ECOWAS to use force if necessary to halt inward maritime shipping.

18  Other references to regional organizations are less clear. In many resolutions concerning former Yugoslavia the Security Council just added ‘recalling the provisions of Chapter VIII of the Charter of the United Nations’ when it in fact referred to NATO. In other resolutions it addressed the States and asked that they ‘acting nationally or through regional agencies or arrangements’ should take measures. In those cases the wording is reminiscent of Art. 48 (2) of Chapter VII UN Charter, according to which decisions by the Security Council shall be carried out by the members of the United Nations directly and through their action in the appropriate international agencies of which they are members. Nevertheless, it would seem that a special mentioning of the organizations in the resolution must be interpreted as authorization in the sense of Art. 53 UN Charter. In UNSC Resolution 1031 (1995) of 15 December 1995 (SCOR 50th Year 18) which created the legal basis for the Implementation Force, the Security Council referred to action by Member States ‘acting through or in cooperation with the organization referred to in Annex 1-A’ (at para. 12). This is again a reference to NATO and must be seen as an authorization under Art. 53 UN Charter. In UNSC Resolution 1244 (1999) of 10 June 1999 the Security Council expressly ‘authorizes Member States and relevant international organizations to establish the international security presence in Kosovo…with all necessary means to fulfil its responsibilities’ (at para. 7).

19  It is not always evident whether the use of armed forces by regional organizations needs the authorization of the Security Council. This is particularly so where the consent of the territorial State may exist and the regional organization therefore uses peacekeeping forces which cannot be seen as enforcement action. Sometimes the Security Council, after a period of doubt, has expressed the view that there was peacekeeping in the traditional sense not needing formal authorization. In UNSC Resolution 937 (1994) of 21 July 1994 (SCOR 49th Year 65) the Security Council referred to the situation in Abkhazia:

recognizing that the deployment of a CIS peace-keeping force to the area is predicated upon the request and consent of the parties to the conflict (at Pmbl)…Welcomes the contribution made by the Russian Federation and indications of further contributions from other members of the CIS, of a peacekeeping force, in response to the request of the parties. (At para. 4)

4.  Action to Restore Peace after the Use of Armed Force

20  After the liberation of Kuwait, UNSC Resolution 687 (1991) of 3 April 1991 (SCOR 46th Year 11) set up for the first time a detailed system of supervision concerning Iraq to restore peace and security in the area. The Security Council decided that Iraq was to accept unconditionally the destruction, removal, or rendering harmless under international supervision of all chemical and biological weapons and all ballistic missiles with a range greater than 150 kilometres. The resolution also set up a fund for claims against Iraq. A procedure for granting compensation was developed and has been implemented by a compensation commission located in Geneva (United Nations Compensation Commission [UNCC]). On the basis of UNSC Resolution 687 (1991) a boundary commission was set up which was given the task to demarcate the boundary between Iraq and Kuwait. On 21 May 1993 its Final Report on the Demarcation of the International Boundary between the Republic of Iraq and the State of Kuwait by the United Nations Iraq-Kuwait Boundary Demarcation Commission ([20 May 1993] UN Doc S/25811/Appendix) was communicated to the Security Council which by UNSC Resolution 833 (1993) of 27 May 1993 (SCOR 48th Year 36) acting under Chapter VII reaffirmed that the decisions of the commission regarding the demarcation are final and guaranteed the inviolability of the boundary.

5.  Measures against War Criminals

21  With UNSC Resolution 808 (1993) of 22 February 1993 (SCOR 48th Year 28) the Security Council decided that an international tribunal would be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. On 25 May 1993, the Security Council, by UNSC Resolution 827 (1993) of 25 May 1993 (SCOR 48th Year 29) established the International Criminal Tribunal for the Former Yugoslavia (ICTY) and adopted its statute as annex to the resolution. The ICTY has been operative since then and has developed an impressive case-law. A similar tribunal has been set up by UNSC Resolution 955 (1994) of 8 November 1994 (SCOR 49th Year 15) for Rwanda. These examples show that the Security Council has far-reaching powers to deal with situations after armed conflicts.

E.  Other Activities

1.  General Political Activities

22  Since the General Assembly has a wide mandate to discuss all matters related to peace and security, disarmament and political co-operation (Arts 11 and 13 UN Charter), there are hardly any matters of international concern which have not been at issue in the debates of the General Assembly. The problems of disarmament have been discussed repeatedly at special sessions. Many important treaties have been adopted as a consequence of discussions in the General Assembly. The UN Conference on the Law of the Sea, the most important example of an effort to regulate a matter of grave concern to the international community by consensus, was instituted by the General Assembly and led to the adoption of the United Nations Convention on the Law of the Sea ([signed 10 December 1982, entered into force 16 November 1994] 1833 UNTS 396; see also Law of the Sea).

2.  Economic and Social Questions

23  Art. 55 UN Charter lays down the principle according to which it is the task of the UN to promote higher standards of living, full employment, and conditions of economic and social progress and development. This article has been the basis of numerous activities; inter alia the creation of UN Specialized Agencies, conferences, and organizations. The international economic order has been and remains on the agenda of the General Assembly during most sessions. The problem of overcoming the economic North-South divide in the world has been studied continuously.

3.  Human Rights

24  It was the experience with National Socialism and World War II which led to the inclusion of Art. 55 (c) in the UN Charter, according to which the UN shall promote ‘universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’. The Universal Declaration of Human Rights adopted by the General Assembly in 1948 was the first step towards the implementation of this task. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both signed in 1966 and entering into force in 1976, are the most important examples of UN activities in the field of human rights. The United Nations Commission on Human Rights was established as a sub-commission of ECOSOC for discussion and possibly investigation of alleged violations of human rights. In 2006 the Commission was transformed into the United Nations Human Rights Council (United Nations Commission on Human Rights/United Nations Human Rights Council). From the beginning the decision to mention the promotion of human rights as one of the tasks of the UN precluded their being regarded as ‘essentially within the domestic jurisdiction of any state’ in the sense of Art. 2 (7) UN Charter (see also Domaine réservé). However, this view was always disputed by some important States, during the Cold War by the communist States.

4.  Decolonization

25  The process of decolonization brought about under the supervision of the UN has been one of the most successful activities. The UN Trusteeship System was based on the objective of reaching independence for the territories concerned, at least as one alternative (Art. 76 (b) UN Charter). But under Chapter XI the principle of self-determination was recognized for all non-self-governing territories, a principle that was further emphasized in the Declaration on the Granting of Independence to Colonial Countries and Peoples (UNGA Res 1514 [XV] [14 December 1960] GAOR 15th Session Supp 16 vol 1, 66). By 1980, most colonial territories had reached independence and had become sovereign members of the UN.

5.  Development of International Law and Codification

26  The era since the foundation of the UN has been of great importance for the development of international law. The codification and progressive development of international law through multilateral treaties has made unprecedented progress. In other areas new problems have been regulated by treaties. The UN has acted as a central agency for this development. The General Assembly established the International Law Commission (ILC) already in 1947, and this organ has prepared some of the most important codification treaties, such as the Vienna Convention on Diplomatic Relations (1961), the Vienna Convention on Consular Relations (1963), and the Vienna Convention on the Law of Treaties (1969). The ILC has also adopted detailed rules on important areas of international law without proposing to transform them into treaties. These rules may be indications of generally recognized rules of international law or may play a role in shaping customary international law. Among the most important examples are the Draft Articles on Responsibility of States for Internationally Wrongful Acts ([2001] GAOR 56th Session Supp 10, 43) published with detailed commentaries by the ILC. Other draft treaties were prepared by committees of the General Assembly or specific drafting conferences. The development of the law of the sea was brought about by several conferences on the law of the sea initiated by the General Assembly. Resolutions and declarations adopted by the General Assembly have also contributed to the clarification and development of international law. A good example is the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations (UNGA Res 2625 [XXV] [24 October 1970] GAOR 25th Session Supp 28, 121; Friendly Relations Declaration [1970]). Although the General Assembly has of course no competence to create new law, these resolutions may indicate how Member States see the legal obligations under general international law, and may show the existence or non-existence of consensus over important legal developments. Resolutions and declarations have been quoted by the ICJ and are used in legal arguments between States, showing that they play an important role in the development of present-day public international law.

F.  Legal Status of the UN

1.  International Legal Personality

27  The UN Charter does not expressly regulate the international legal personality of the UN. It is clear, however, that the UN is seen as a subject of international law where the conclusion of international agreements is expressly provided for (eg, in Art. 43 UN Charter; Subjects of International Law). The ICJ has recognized that the UN is in possession ‘of a large measure of international personality and the capacity to operate upon an international plane’ (Reparation for Injuries Suffered in the Service of the United Nations [Advisory Opinion] [1949] ICJ Rep 174, at 179). In fact, the UN has concluded a considerable number of international agreements, such as headquarters agreements for the UN seats in New York and Geneva, agreements concerning peacekeeping operations, agreements concerning specific meetings or conferences organized by the UN, and agreements related to the privileges and immunities enjoyed by the UN on the basis of the Convention on the Privileges and Immunities of the United Nations of 1946 (‘CPIUN’; see also International Organizations or Institutions, Headquarters; International Organizations or Institutions, Privileges and Immunities). Also, the UN has acted on the international plane by demanding reparation for injuries suffered by its representatives and by accepting responsibility for damages caused by its agents, especially in the course of peacekeeping operations (International Organizations or Institutions, Responsibility and Liability). Thus, the UN enjoys a far-reaching international legal personality.

2.  Legal Status in Municipal Law

28  According to Art. 104 UN Charter, the Organization is to ‘enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes’. The CPIUN of 1946 provides in Art. I (1): ‘The United Nations shall possess juridical personality. It shall have the capacity: a) to contract; b) to acquire and dispose of immovable and movable property; c) to institute legal proceedings’. This convention is in force for most Member States of the UN and clarifies the position of the Organization under Art. 104 UN Charter.

3.  Privileges and Immunities

29  Art. 105 UN Charter provides that the UN and its officials as well as the representatives of members shall enjoy privileges and immunities. Under Art. 105 (3) UN Charter the General Assembly has the right to propose conventions to specify the details of these rights. In accordance with this provision, the CPIUN, adopted by the General Assembly on 13 February 1946 (UNGA Res 22 [I]), grants full immunity to the Organization, the representatives of the members and the officials except where it has been waived (Waiver). The ICJ delivered an advisory opinion in 1999 on a request by the ECOSOC concerning the Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) ([1999] ICJ Rep 62). The Court found that the rapporteur enjoyed immunity which had to be respected.

4.  Status of UN Headquarters

30  The legal status of the seat of the UN in the City of New York was regulated by the Agreement between the United Nations and the United States regarding the Headquarters of the United Nations (‘UN Headquarters Agreement’). The Headquarters District is put ‘under the control and authority of the United Nations as provided in this agreement’ (Art. III (7) (a) UN Headquarters Agreement). Although US federal, state, and local law remains applicable in the District, it may be superseded by UN regulations. The Headquarters District is to be inviolable. United States officers and officials may not enter the District to perform official functions except with the consent of the Secretary-General. Transit to and from the Headquarters District is guaranteed by the agreement. Police protection for the Headquarters District is also regulated in the agreement. Similar agreements were concluded between the UN and Switzerland relating to the ‘Ariana Site’ in Geneva, on the basis of which the UN premises in Geneva are inviolable and immune from search or other interference. Disputes under the Headquarters Agreements are to be decided by arbitration on the basis of special provisions. The ICJ was asked on 2 March 1988 by the General Assembly to give an advisory opinion on the question of whether the US, as a party to the agreement between the UN and the US regarding the Headquarters, was under an obligation to enter into arbitration in accordance with Section 21 UN Headquarters Agreement (United Nations Headquarters Agreement, Obligation to Arbitrate [Advisory Opinion]). The ICJ was unanimously of the opinion ‘that the United States of America as a party to the agreement…is under an obligation…to enter into arbitration for the settlement of the dispute between itself and the United Nations’ (Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 [Advisory Opinion] [1988] ICJ Rep 12; at para. 58). The dispute concerned the status of the Palestine Liberation Organization observer mission.

G.  Financing and Budget

31  Under Art. 17 UN Charter, the General Assembly is to consider and approve the budget of the Organization and apportion the expenses between the members (United Nations Budget). The biennial budget is initially submitted by the Secretary-General and reviewed by a 16-member expert Advisory Committee on Administrative and Budgetary Questions which recommends modifications to the General Assembly. Contributions of members constitute the main source of funds for the regular budget which was approved by UN General Assembly Resolution 66/248 of 24 December 2011 to US$5.1 billion for 2012–2013. How much a State pays is determined primarily by its total national income in relation to that of other Member States. The US, Japan, and Germany pay 47% of the regular budget (2007). The US pays the maximum contribution possible, ie 22%, Japan 16%, Germany 8%, UK 6%, France 6%, and Italy 5%. Only 11 other States pay more than 1%. A quarter of members pay only 0.001% which is the minimum.

32  The regular budget covers administrative and other expenses of the central Secretariat and the other principle organs of the UN. Many other activities are financed mainly by voluntary contributions made outside the regular budget, such as those made to the peacekeeping operations, the United Nations Development Programme (UNDP), and the World Food Programme (WFP).

H.  Special Legal Problems

1.  Binding Nature of UN Decisions

33  Art. 25 UN Charter obliges all members ‘to accept and carry out the decisions of the Security Council in accordance with the present Charter’. It is clear that this obligation exists primarily for decisions taken under Chapter VII where Art. 39 UN Charter empowers the Security Council to make recommendations or decide what measures shall be taken in accordance with Arts 41 and 42 UN Charter, to maintain or restore international peace and security. Recommendations are not binding but decisions create an obligation. The ICJ has rejected the view that Art. 25 UN Charter applies only in relation to Chapter VII. Rather, the Court expressed the opinion in 1971 that the language of a resolution should be carefully analysed before a conclusion can be made as to its binding effect. The ICJ even speaks of ‘the powers under Article 25’ (South West Africa/Namibia [Advisory Opinion] at para. 114). It is very doubtful whether this position is correct. As Sir Gerald Fitzmaurice has pointed out in his dissenting opinion:

If, under the relevant chapter or article of the Charter, the decision is not binding, Article 25 cannot make it so. If the effect of that Article were automatically to make all decisions of the Security Council binding, then the words ‘in accordance with the present Charter’ would be quite superfluous. (South West Africa/Namibia [Advisory Opinion] [Dissenting Opinion of Judge Fitzmaurice] [1971] ICJ Rep 220; at para. 113)

Inpractice, the Organization acts on the understanding that the decisions of the Security Council outside Chapter VII are not automatically binding on the States concerned. The wording of Chapter VI shows that, here, only non-binding recommendations can be made by the Security Council.
34  As for the General Assembly, Arts 10–14 UN Charter are the basis for making recommendations which are not binding, although the States concerned are under an obligation to consider their content. The ICJ has stated, however, that

it would not be correct to assume that, because the General Assembly is in principle vested with recommendatory powers, it is debarred from adopting, in specific cases within the framework of its competence, resolutions which make determinations or have operative design. (Ibid para. 105)

Again, it is not quite clear under which circumstances this rule would apply except in cases where internal matters of the UN are at issue, for instance, decisions on budgetary matters (see also International Organizations or Institutions, Internal Law and Rules).

2.  Legality of UN Acts

35  As the ICJ has pointed out, there is no procedure for determining the validity of acts of the UN. Therefore, ‘each organ must, in the first place at least, determine its own jurisdiction’ (Certain Expenses of the United Nations [Article 17, Paragraph 2, of the Charter] [Advisory Opinion] 168). The Court has also stated that ‘[a] resolution of a properly constituted organ of the United Nations which is passed in accordance with that organ’s rules of procedure, and is declared by its President to have been so passed, must be presumed to have been validly adopted’ (South West Africa/Namibia [Advisory Opinion] para. 20). In Certain Expenses of the United Nations (Advisory Opinion), the Court hinted at the possibility that the violation of internal provisions may not make the act itself illegal if it is within the functions of the Organization. A presumption is seen to exist for actions appropriate for the fulfillment of one of the stated purposes of the UN not being ultra vires (at 168). Where no possibility exists of settling by judicial procedure a dispute as to the lawfulness of any act of an international organization, the danger is always present that the States concerned may take the law into their own hands. This is what happened when the Soviet Union and France refused to pay their share of the budget for peacekeeping operations because they considered these acts to be illegal under the UN Charter. The advisory opinion of the ICJ which was requested in this case was not binding and was, in fact, not accepted by the two States. Unless a compromise is found, a dispute as to the legality of UN acts may well lead to the non-recognition of the acts by the States concerned. For the financing of peacekeeping operations, compromises were in fact found. A special budget for the peacekeeping operations has been established ever since. It is a considerable weakness of the UN system that, unlike in the European Union, no procedure for binding settlement of disputes as to the legality of UN acts exists.

3.  UN Acts in Municipal Law

36  Decisions of the UN are directed towards the Member States if they do not concern internal matters of the Organization, where they may be addressed to another organ. Even where direct obligations are created for the State by the decision, it is up to its internal law to determine whether State organs can comply with it (International Law and Domestic [Municipal] Law, Law and Decisions of International Organizations and Courts). When the US adopted legislation in violation of Security Council resolutions introducing a trade embargo against Rhodesia, US courts had to apply US legislation (Charles Coles Diggs v George P Shultz, Secretary of Treasury United States Court of Appeal for the District of Columbia Circuit [31 October 1972] [1972] 11 ILM 1252). Resolutions by UN organs will not create individual rights enforceable before national courts (Charles Coles Diggs v Frederick B Dent United States District Court for the District of Columbia [13 May 1975] [1975] 14 ILM 797). When the Postmaster-General of Australia interrupted the telephone connections of the Rhodesian Information Centre, the High Court of Australia held that resolutions of the Security Council are not part of the law of the Commonwealth (Bradley v The Commonwealth High Court of Australia [Canberra 10 September 1973] 128 Commonwealth Law Reports 557). In Attorney-General v Nissan (United Kingdom House of Lords [11 February 1969] [1969] 1 All ER 629) the British House of Lords refused to accord the UN the position of a foreign State concerning acts relating to the seizure of a hotel on Cyprus.

37  In the very important judgment Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities by the European Court of Justice (‘ECJ’) of 3 September 2008 in the cases concerning the listing procedure as to YA Kadi and Al Barakaat International Foundation, the ECJ held that fundamental rights as protected by European Community law limit the implementation of Security Council decisions (Kadi Case). The lack of any procedure of judicial review was seen by the ECJ as a violation of the fundamental rights protected by European Community law. The ECJ held that the implementing regulation of the European Community must be amended to bring it into conformity with fundamental rights. The judgment is of considerable importance because it clarifies that the binding nature of Security Council decisions does not automatically override the protection of fundamental rights in municipal or regional law.

38  There may be situations, where municipal courts have to respect the erga omnes objective effect of UN acts unless this entails their State becoming responsible under international law. This could be the consequence of Security Council resolutions declaring annexation[s] of territory to be ‘null and void’ (cf UNSC Res 497 [1981] [17 December 1981] SCOR 36th Year 6, declaring Israeli measures concerning the Golan to be ‘null and void’). After the General Assembly had terminated the mandate for Namibia, the ICJ found that this act had validity erga omnes and had to be respected by all States. The illegal presence of South Africa in the territory should not be recognized, according to the ICJ. This applies also to the recognition of acts performed by the illegal administration, except for certain categories of acts, for instance, registration of births, deaths, and marriages (South West Africa/Namibia [Advisory Opinion] para. 125).

39  Similarly the Security Council, after the invasion of northern Cyprus by Turkey, adopted UNSC Resolution 541 (1983) of 18 November 1983 (SCOR 38th Year 15) declaring the proclamation of the establishment of the Turkish Republic of Northern Cyprus (‘TRNC’) to be legally invalid and called upon all States not to recognize any Cypriot State other than the Republic of Cyprus. The European Court of Human Rights based itself on the Security Council resolutions as evidence for the invalidity of the establishment of the TRNC and applied the principle laid down in the Namibia case. It concluded that some remedies existing to the advantage of individuals could be seen as being remedies to be exhausted under the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’; Cyprus v Turkey [ECtHR] Reports 2001-IV, 1).

4.  Withdrawal from the UN

40  The UN Charter does not provide for the withdrawal of members from the organization. This was a clear decision taken at San Francisco. At first there were even proposals to make participation ‘obligatory’ but this was rejected. A declaration adopted by a committee during the drafting of the UN Charter shows that it was not considered to be the intention to compel those members to continue their ‘cooperation in the Organization’ who wish to withdraw for specific reasons (United Nations [ed], Documents of the United Nations Conference on International Organization San Francisco, 1945 vol 7 Commission I: General Provisions [United Nations Information Organization New York 1945] 273). When Indonesia informed the Secretary-General that she had decided ‘to withdraw from the United Nations’ on 20 January 1965 (United Nations [ed], Repertory of Practice of United Nations Organs Supp 3 vol 1 Articles 1–22 of the Charter [United Nations New York 1972] 189), the attention of the UN was drawn to that problem and the earnest hope was expressed that Indonesia would resume full co-operation in due course. On 19 September 1966 Indonesia informed the Secretary-General that she had ‘decided to resume full co-operation with the United Nations and to resume participation in its activities starting with the twenty-first session of the General Assembly’ (United Nations [ed], Repertory of Practice of United Nations Organs Supp 3 vol 1 Ariticles 1–22 of the Charter [United Nations New York 1972] 190). The President of the General Assembly then made a statement according to which Indonesia had not withdrawn from the UN but had only ceased to co-operate. Since the members of the UN have ratified the UN Charter, which does not provide for withdrawal, it can be argued that this possibility does not exist. It seems, however, that under ‘exceptional circumstances’ States will recognize a withdrawal as justified. Withdrawal has, of course, to be distinguished from issues arising by State succession and by extinction of States. Issues of that sort had to be solved when the old Member State Yugoslavia disintegrated. The new States coming into existence with the secession were all admitted to membership on the basis of the normal procedure. As to the State from which the new Member States had seceded, and which acted first under the name of Yugoslavia, then Serbia and Montenegro, and then Serbia, difficult problems arose. After a period of uncertainty Serbia and Montenegro was admitted as a new Member State, Montenegro then seceded from this State and the State called itself Serbia.

5.  Suspension; Expulsion

41  According to Art. 5 UN Charter, a member against which preventive or enforcement action has been taken may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council. The Security Council may restore these rights and privileges. This article has never been applied. The same is true for Art. 6 UN Charter, which gives the General Assembly, again upon the recommendation of the Security Council, the competence to expel a member which has ‘persistently violated the Principles contained in the present Charter’. A very dubious practice has been developed in the General Assembly, however, where the credentials of the South African delegates have not been recognized in a period after 1971 before the changes of 1989 because of the lack of representativeness of the government of South Africa of the majority of the South African people (see also Apartheid). In 1974 the South African delegates were excluded from the General Assembly, and South Africa has not participated in the work of the General Assembly before the constitutional changes in South Africa. The procedure which was applied there may well be called a circumvention of Arts 5 and 6 UN Charter, which clearly regulate the matters of suspension and expulsion.

42  Problems have also arisen in connection with Art. 19 UN Charter, under which a State ‘shall have no vote in the General Assembly if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years’. When several countries had objected to peacekeeping operations as not being in conformity with the UN Charter and had not paid those parts of their contributions attributable to those operations, the applicability of Art. 19 UN Charter had to be clarified. A compromise was reached to proceed by consensus without formal vote in the General Assembly, thereby avoiding the issue under Art. 19 UN Charter (Repertory of Practice of United Nations Organs Supp 3 vol 1 Articles 1–22 of the Charter 396–99). A special procedure for the financing of peacekeeping operations was applied from then on.

6.  Responsibility of the United Nations

43  Since the UN has legal personality and is involved in far-reaching international activities, in particular concerning peacekeeping, it follows that the Organization may become responsible under international law. This is generally recognized and there are many cases where the UN have accepted that such responsibility may exist. In his report Financing of the UN Protection Force the Secretary-General on 29 September 1996 stated that the

international responsibility of the United Nations for the activities of United Nations forces is an attribute of its international legal personality and its capacity to bear international rights and obligations. (At Para. 6)

Inseveral cases the UN have paid compensation to individuals who suffered damage by non-justified action of United Nations personnel. Frequently the UN has established ‘local claims review boards’ to settle claims. It is not always clear what law is being applied when compensation is being agreed upon. It would seem correct to assume that international law may be the basis for claims of compensation where the UN and its organs exercise UN authority based on the UN Charter. Where UN personnel is involved in traffic accidents one may come to the conclusion that the local law applies. Although international law is not generally a limitation for UN activities it would seem to be generally recognized that the UN is bound to respect ius cogens as well as individual human rights. Where violations of these rules occur the UN is liable. A considerable problem exists since there are no judicial remedies available against the UN. Because of the immunity of the organization national courts will normally not have jurisdiction to decide on the merits. However, the question must be asked whether the UN should not be seen under an obligation to waive immunity where responsibility for important violations of international law are at issue. The genocide at Srebrenica, recognized by the ICJ, is an example. A procedure in the Netherlands may clarify this matter. It is interesting to note that there are also tendencies to reject immunity. An Advisory Commission to the Dutch government for example, in a report on responsibility for UN peace operations, stated that national courts should, in case of a claim against the UN, inquire whether an adequate alternative internal remedy is available. If this is not the case the court should reject a plea of immunity (Advisory Committee on International Law Affairs ‘Report on Responsibility for Wrongful Acts Committed During UN Peacekeeping Operations’ [2002] para. 4.5.1). The ILC is preparing a report on the international responsibility of international organizations. The European Court of Human Rights has decided that actions by the United Nations Interim Administration Mission in Kosovo and the Kosovo Force are to be attributed only to the UN and, therefore, applications against Member States of the ECHR are incompatible ratione personae (Agim Behrami and Bekir Behrami v France and Ruzhdi Saramati v France, Germany and Norway [Decision of Admissibility] of 2 May 2007). This is highly problematic. English courts have underlined the importance of the ECHR where British forces in Iraq interned people on the basis of a UN resolution. The European Court of Human Rights held that the resolution qualified convention law as to internment but not as to the obligations under Art. 3 ECHR not to torture or not to apply inhumane treatment (The Queen on the Application of Mazin Jumaa Gatteh al Skeini v Secretary of State for Defence England and Wales High Court of Justice [Queen’s Bench Division] [14 December 2004] [2004] EWHC 2911).

I.  General Evaluation

44  As a world-wide organization with a mandate to concern itself with all the issues vital to the preservation of mankind and to the overcoming of the great dangers to peace threatening the globe, the UN can achieve nothing without the support of its members. The Organization is a mirror of the conditions existing in the international society of States. With a veto power in the Security Council the structure of the organization takes account of the differences existing between States as far as their political importance is concerned. Of course, the political importance of several non-permanent Member States may be seen as justifying their admission to permanent membership. However, no consensus has been reached on that matter. Where the permanent members are in agreement as to the method to solve a specific dangerous situation, the UN may serve as the institutional structure through which the influence of the most important powers may be exercised and may become more acceptable to smaller countries. Where there is a rift between the permanent members, whether or not the veto will be used will depend on the importance of the question. Even then the forum of discussion in the Security Council may not be without influence in the final resolution of the problem. In the General Assembly all important issues concerning the international society can be addressed. A sort of ‘parliamentary procedure’ which the States of the world have to use to justify their general policy has been created.

45  With the fall of the Berlin Wall in 1989 and the disappearance of the East-West conflict which had lasted for almost 50 years, the United Nations system, as designed in 1945, could be, for the first time, tested as to its possibilities. Since then the Security Council has applied its competence under Chapter VII UN Charter in many cases. The Security Council has moved into the centre of UN activities as far as preservation of peace is concerned. Open aggression, as by Iraq against Kuwait, could be answered by very clear and strong United Nations action. In other cases UN action was less successful. Although the Secretary-General has expressed the wish that States may negotiate treaties under Art. 43 UN Charter for making it possible that the UN has military forces available under its control, no State has shown any intention to implement that demand. It would seem that the UN Charter, in 1945, was modelled on the basis of the situation during World War II when use of armed force against the aggressor seemed quite natural and it was believed that States could be willing to transfer the decision to use their troops to the United Nations. However, no government has been willing to do that in a period of general peace and it is unlikely that anything will change here. However, the UN response to external and internal threats to the peace is rather impressive. The Security Council has not hesitated to address resolutions based on Chapter VII also to non-State entities as factions in internal conflicts. This is based on the view that the Security Council has full jurisdiction at least concerning the territory of all Member States.

46  The development of public international law can no longer be separated from the organization of the United Nations. It has become the most important world-wide law-creating body. It is frequently stated that the possibilities for peaceful change, mentioned in Art. 14 UN Charter, should be strengthened. The process of decolonization brought about within the UN framework is probably the best example of peaceful change in history.

47  The United Nations organization is not only essential concerning peace and security, but also to address issues which concern mankind as a whole. Compared with the difficult history of the League of Nations, which never became the recognized forum of all the States in the world, the development of the UN has been much more successful. Its contribution to international law in the second half of the 20th century and in the 21st century can be seen throughout this encyclopedia.

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