Contents
- Preliminary Material
- Contents
- Preface
- List of Authors
- Table of Cases
- I Administrative Tribunal of the Organization of American States
- II Arbitral Awards
- III Eritrea Ethiopia Claims Commission
- IV European Court of Human Rights
- V European Union
- VI Inter-American Court of Human Rights
- VII International Court of Justice
- VIII International Criminal Tribunal for the Former Yugoslavia
- IX International Criminal Tribunal for Rwanda
- X International Labour Organization Administrative Tribunal
- XI International Tribunal for the Law of the Sea
- XII Permanent Court of International Justice
- XIII Special Court for Sierra Leone
- XIV Special Tribunal for Lebanon
- XV United Nations Administrative Tribunal
- XVI United Nations Appeals Tribunal
- XVII United Nations Dispute Tribunal
- XVIII United Nations Human Rights Committee
- XIX WTO
- XX Domestic Cases
- Table of Instruments
- International Instruments
- Instruments pertaining to international Institutions
- African Commission on Human and Peoples’ Rights
- African Union (AU)
- Association of Southeast Asian Nations (ASEAN)
- Committee on Economic, Social and Cultural Rights (CESCR)
- Committee on the Elimination of Racial Discrimination (CERD)
- Common Market for Eastern and Southern Africa
- European Union
- Food and Agriculture Organization (FAO)
- International Atomic Energy Agency (IAEA)
- International Bank for Reconstruction and Development (IBRD) (World Bank)
- International Civil Aviation Organization (ICAO)
- International Civil Service Commission (ICSC)
- International Centre for the Settlement of Investment Disputes (ICSID)
- International Court of Justice
- International Criminal Court
- International Criminal Tribunal for Rwanda (ICTR)
- International Criminal Tribunal for Yugoslavia (ICTY)
- International Development Association (IDA)
- International Finance Corporation (IFC)
- International Fund for Agricultural Development (IFAD)
- International Labor Organization (ILO)
- International Law Commission
- International Maritime Organization (IMO)
- International Monetary Fund (IMF)
- International Narcotics Control Board (INCB)
- International Refugee Organization
- International Telecommunication Union (ITU)
- International Trade Organization (ITO)
- International Tribunal on the Law of the Sea (ITLOS)
- League of Arab States
- League of Nations
- North Atlantic Treaty Organization
- Organization of American States (OAS)
- Organization of African Unity (OAU)
- Permanent Court of International Justice (PCIJ)
- Special Tribunal for Lebanon
- United Nations
- Agreements
- Charters
- Covenants
- Declarations
- Institutions
- Resolutions
- Commission on Human Rights
- Economic and Social Council
- ESCWA (Economic and Social Commission for Western Asia)
- General Assembly
- Human Rights Council
- Security Council
- Trusteeship Council
- Rules
- Universal Postal Union (UPU)
- World Health Organization
- World Intellectual Property Organization (WIPO)
- World Meteorological Organization (WMO)
- World Tourist Organization (UNWTO)
- World Trade Organization
- National Instruments
- List of Abbreviations
- The Charter of the United Nations
- Statute of the International Court of Justice
- Main Text
- Drafting History
- Preliminary Material
- Main Text
- A The Genesis of the Charter: An Overview
- B Stages in the Creation of the New World Organization
- C Transition from League of Nations to United Nations
- Reform
- Preliminary Material
- Main Text
- A Notion of Reform
- B Reform and the Charter
- C Phases of Reform
- I Collective Security and Cold War
- II Decolonization and the Shift to Development
- 1 From War-Time Alliance to Universal Membership: Reform of the Admissions Procedure
- 2 Self-determination and Human Rights: The Constitutional Underpinnings of Decolonization
- 3 Equitable Representation of the Newly Independent Member States in the SC and ECOSOC
- 4 Shift of the Reform Agenda to Development
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- (a) Original Design: Functional Decentralization and Economic Liberalism
- (b) Diversification and Duplication within the UN Development System
- (c) The Challenge of Coordination: Study on the Capacity of the UN Development System
- (d) Reforming Global Economic Governance: the Attempt to Establish a New International Economic Order
- (e) Adapting the Structure of the UN System to the New International Economic Order
- III Reforming For Survival: Focus on Administrative and Budgetary Reform
- IV End of the Cold War and the Revitalization of the Collective Security System
- V New Threats to Collective Security and the 2005 World Summit
- VI World Summit Follow-Up and Future Prospects for Reform
- D Outlook
- Interpretation of the Charter
- Preliminary Material
- Main Text
- A Introduction
- B Rules of Interpretation
- C The Charter in the Practice of Its Interpreters
- D Interpretation and Revision
- E Concluding Remarks
- Preamble
- Ch.I Purposes and Principles
- Article 1
- Article 2
- Article 2 (1)
- Preliminary Material
- A Introduction
- B Historical and Philosophical Background
- C Drafting History
- D Elaboration of the Principle in the Practice of the United Nations
- E The Substance of Sovereign Equality in Present International Law
- F The Untamed Side of Sovereignty
- Article 2 (2)
- Article 2 (3)
- Preliminary Material
- A Historical Background
- B Systematic Context
- C Elaboration of the Principle of the Peaceful Settlement of Disputes in the Practice of the United Nations
- I The Friendly Relations Declaration
- II The Manila Declaration
- III UNGA Resolution 40/9
- IV Declaration on the Prevention and Removal of Disputes and Situations which May Threaten International Peace and Security, and on the Role of the United Nations in this Field
- V United Nations Decade of International Law
- VI Millennium Declaration
- VII World Summit Outcome
- VIII The Rule of Law
- D The Scope of Application ratione personae
- E The Substance of Obligation
- F International Disputes
- G Peaceful Means
- H Settlement
- I Justice
- Article 2 (4)
- Preliminary Material
- A Fundamental Significance
- B History of the Prohibition of the Use of Force
- C Scope and Content of the Prohibition
- D Exceptions to the Prohibition
- E Special Problems
- F Concluding Remarks
- Article 2 (5)
- Article 2 (6)
- Preliminary Material
- A Introduction
- B Historical Background
- C The Addressees of the Obligation
- D The Text of the Provision
- E Article 2 (6) as the Precursor of a Universal System of Collective Security Based upon the UN Charter
- I A Universal System of Collective Security Based upon the UN Charter
- II Indications of a Universal System of Collective Security in the Charter
- III United Nations and State Practice
- IV The ICJ’s Namibia and Kosovo Advisory Opinions
- V Legal Basis of a Universal System of Collective Security
- Article 2 (7)
- Preliminary Material
- A Introduction: Is Article 2 (7) Obsolete or as Relevant as Ever?
- B Article 2 (7) in the Context of the Other Charter Principles
- C The Text and UN Practice
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- I ‘Nothing…Shall Authorize the United Nations’
- II ‘To Intervene’
- III ‘In Matters…Essentially Within the Domestic Jurisdiction’
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- 1 Matters Within the Domestic Jurisdiction
- 2 ‘Essentially’
- 3 UN Practice
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- (a) General Significance of the Domestic Jurisdiction Clause
- (b) Treaties and Domestic Jurisdiction
- (c) Provisions of the UN Charter in General
- (d) Human Rights
- (e) Provisions Regarding Non-Self-Governing Territories
- (f) Self-Determination and Minority Rights
- (g) Maintenance of International Peace and Security
- (h) Trade Relations and Economic Sanctions
- (i) Governmental Systems and Elections
- (j) Internally Displaced Persons
- IV ‘Of Any State’
- V ‘Or Shall Require…to Submit Such Matters…to Settlement …’
- VI ‘But…Shall Not Prejudice the Application of Enforcement Measures’
- D Who Decides?
- E Conclusion
- Self-Determination
- Preliminary Material
- Main Text
- A The Right of Self-Determination as a Concept of the UN Charter
- B Historical Developments
- C Basic Preconditions and Components of the Right of Self-Determination
- Ch.II Membership
- Article 3
- Article 4
- Preliminary Material
- A The Concept of Membership: Between Conditional and Absolute Universality
- B The Material Criteria and the Procedure for Admission
- C Special Problems
- D Observer Status
- Article 5
- Article 6
- Ch.III Organs
- Article 7
- Preliminary Material
- A Introduction and travaux préparatoires of Article 7
- B Principal Organs, Article 7 (1)
- C Subsidiary Organs, Article 7 (2)
- D Treaty Organs and United Nations Family: Specialized Agencies, Treaty Organs, and Conferences
- E Remedies
- Article 8
- Preliminary Material
- A Introduction
- B Origins
- C Legal Content
- D Problems of Application
- E Perspectives
- Article 7
- Ch.IV The General Assembly
- Composition
- Article 9
- Preliminary Material
- A Significance of the General Assembly
- B Composition of the General Assembly
- C Representation in the General Assembly
- D Right of Representation in the General Assembly
- Article 9
- Functions and Powers
- Article 10
- Article 11
- Article 12
- Article 13
- Preliminary Material
- A Introductory Note
- B The Legislative History
- C Studies and Recommendations for the Purpose of Promoting International Cooperation in the Political Field (Article 13 (1) (a), First Alternative)
- D Studies and Recommendations for the Purpose of Encouraging the Progressive Development of International Law and its Codification (Article 13 (1) (a), Second Alternative)
- I The International Law Commission (ILC)
- II The United Nations Commission on International Trade Law (UNCITRAL)
- III The Sixth Committee and its Special Committees
- IV The Legal Sub-Committee of the Outer Space Committee
- V The Third United Nations Conference on the Law of the Sea (UNCLOS III)
- VI The Creation of an International Criminal Court (ICC)
- VII Other Codification and Progressive Development of International Law Under the Auspices of the General Assembly
- E Article 13 (1) (b) and Article 13 (2)
- Article 14
- Article 15
- Article 16
- Article 17
- Preliminary Material
- A The Context and Origin of Article 17
- B General Assembly Committees Involved in the Budgetary Process and their Working Procedures
- C The Budget of the Organization
- D The Apportionment of Expenses of the Organization
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- I The Scale of Assessments for Apportioning the Expenses
- II The Committee on Contributions
- III The Measurement of the ‘Capacity to Pay’
- IV The Scale of Assessments for Peacekeeping Operations
- V The Resulting Share of Assessed Contributions Among Member States
- VI The Notion of ‘Expenses of the Organization’
- E The Financial Situation of the United Nations
- F Administrative and Budgetary Coordination Between the United Nations and the Specialized Agencies, Article 17 (3)
- G Past Reforms and New Perspectives
- Voting
- Procedure
- Article 20
- Preliminary Material
- A The Origin of the Wording
- B Regular Sessions
- C Special Sessions
- D Meeting Places
- Annex 1: Regular Sessions
- Annex 2: Regular Special Sessions
- Annex 3: Emergency Special Sessions
- Article 21
- Preliminary Material
- A The Rules of Procedure
- I Legal Framework
- II Key Features of the Rules of Procedure as Applied in Practice
- 1 Sessions
- 2 Participants
- 3 The Secretariat
- 4 The Committees
- 5 Conduct of Business
- 6 Decision-making
- 7 Documentation
- B The President of the General Assembly
- Article 22
- Preliminary Material
- A General Overview
- B History
- C Practice
- D Extent and Limits of the General Assembly’s Powers to Establish Subsidiary Organs
- E Procedure for Establishing Subsidiary Organs
- F Legal Status of Subsidiary Organs within the United Nations
- G Trends in the Development of Subsidiary Organs
- Annex: Subsidiary Organs of the General Assembly
- Article 20
- Composition
- Ch.V The Security Council
- Composition
- Functions and Powers
- Article 24
- Preliminary Material
- A Drafting History
- B Practice
- C The Primary Responsibility for the Maintenance of International Peace and Security
- D Responsibility towards Whom? The Principals of the Council
- E In ‘Accordance with the Purposes and Principles of the United Nations’
- F The ‘Powers Granted to the Security Council’
- Article 25
- Preliminary Material
- A Drafting History and Practice
- B ‘Decisions’ of the Council: Binding Legal Acts
- C The Interpretation of Security Council Resolutions
- D The Addressees of Obligations Contained in Security Council Decisions
- E ‘[I]n Accordance with the Present Charter’
- I The Various Readings of the Phrase
- II The Existence of Legal Limits to Security Council Decisions
- III Which Legal Limits?
- IV A Limited Power of the Council to Deviate from International Law when Acting under Chapter VII
- V Conclusion: Modified Application of International Legal Standards to Council Decisions
- VI Who Decides on the Legality of a Council Decision?
- VII Consequences for the Security Council Decision Itself
- VIII Consequences for the Members’ Obligation to Carry out Impugned Council Decisions
- IX Consequences of an Illegal Council Decision for the UN: International Legal Responsibility
- F The Significance of Article 103 for Council Decisions
- Article 26
- Preliminary Material
- A Introduction
- B Analytical Interpretation
- I The Functions and Powers of the Security Council
- II Goals and Standards of the Work of the Security Council
- III Assistance of the Security Council by the Military Staff Committee and Other Organs
- C Practice
- Article 24
- Voting
- Article 27
- Preliminary Material
- A Development of the Voting System in the Security Council
- I League of Nations
- II Drafting History of the Charter
- 1 Article 27
- (a) General Majority Requirements
- (b) ‘Veto’ System
- (c) Notion of ‘Decisions’
- (d) Majority Requirements concerning ‘Matters of Procedure’
- (e) Procedural versus Non-Procedural Matters
- (f) Voting by Council Members, Parties to a Dispute
- (g) Absent and Abstaining Members of the Security Council
- (h) Excursus: Legal Relevance of the San Francisco Declaration
- 2 Articles 108 and 109 (2) and (3)
- 3 Article 10 ICJ Statute
- 1 Article 27
- III Subsequent Amendments to Articles 27 and 109 (1)
- B Article 27 (1)
- C Article 27 (2)
- I Decisions of the Security Council …’
- II ‘Decisions of the Security Council …’
- III ‘… on procedural matters …’
- 1 General Questions
- 2 Wording
- 3 Object and Purpose
- 4 Contextual Interpretation
- 5 Drafting History
- 6 Proposals to Distinguish Procedural from Substantive Matters
- 7 Categories of Matters and Subsequent Security Council Practice
- (a) General Considerations
- (b) Agenda/Conduct of Business
- (c) Invitations to Participate in the Proceedings of the Security Council
- (d) Establishment of Subsidiary Organs
- (e) Decisions under Chapter II
- (f) Decisions Related to Chapter IV
- (g) Decisions under Chapter VI
- (h) Decisions under Chapter VII
- (i) Decisions under Chapter VIII
- (j) Decisions under Chapter XIV
- (k) Decisions under Article 97, 2nd sentence
- 8 Decisions Consisting of Procedural and Substantive Elements
- 9 Determination of the Procedural or Non-Procedural Character of a Matter
- IV ‘… shall be made by an affirmative vote …’
- V ‘… shall be made by an affirmative vote …’
- VI ‘… of nine members’
- D Article 27 para 3
- I ‘Decisions of the Security Council on all other matters …’
- II ‘… shall be made by an affirmative vote of nine members …’
- III ‘… including the concurring votes of the permanent members …’
- IV ‘… provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.’
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- 205
- 206
- 1 ‘… in decisions under Chapter VI …’
- 2 ‘… and under paragraph 3 of Article 52 …’
- 3 ‘… a party to a dispute …’
- 4 ‘… a party to a dispute’
- 5 Determination of the Procedural or Non-procedural Character of a Matter in the Context of Article 27 (3) cl 2
- 6 ‘… shall abstain from voting.’
- E Exercise of the Veto as ‘abus de droit’?
- F Possible Reform of Article 27
- G Evaluation of Article 27
- Annex San Francisco Declaration of 7 June 1945
- Article 27
- Procedure
- Article 28
- Preliminary Material
- A Historical Background
- B The Structure of Article 28
- C The Provisional Rules of Procedure of the SC
- D Article 28 (1): Ordinary Meetings of the SC
- E Article 28 (2): Extraordinary (‘Periodic’) Meetings of the SC
- F Article 28 (3): SC Meetings away from the Seat of the Organization
- Article 29
- Preliminary Material
- A Overview and History
- B Textual and Systematic Interpretation
- C Procedures for the Establishment and Dissolution of Subsidiary Organs
- D Powers and Functioning of Subsidiary Organs
- E SC Practice
- I Introduction
- II Permanent Subsidiary Organs or Standing Committees
- III Temporary Subsidiary Organs or Ad Hoc Committees
- IV Peacekeeping and Territorial Administration
- V International Criminal Tribunals
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- 1 Legal Basis
- 2 The International Criminal Tribunal for the Former Yugoslavia
- 3 The International Criminal Tribunal for Rwanda
- 4 The Future of Ad Hoc Tribunals
- Article 30
- Preliminary Material
- A Origins
- B Legal Contents
- C The Provisional Rules of Procedure of the SC (S/96/Rev. 7)
- D Perspectives for Future Development
- Article 31
- Preliminary Material
- A Genesis
- B Article 31 in the System of Participation Rights of Non-Members of the Security Council
- C Article 31 as a Compensatory Rule in Favour of Non-Members of the Security Council
- D Pre-conditions to Participation: ‘Specially Affected Interests’
- E The Right to Participation
- F Procedure
- G The Relevance of Article 31
- H The Liberal Participation Practice of the Security Council
- Article 32
- Article 28
- Ch.VI Pacific Settlement of Disputes
- Article 33
- Preliminary Material
- A Chapter VI
- B Article 33: Issues of Principle
- C The Obligations of Parties to a Dispute According to Article 33 (1)
- D The Powers of the Security Council
- Article 34
- Preliminary Material
- A Drafting History
- B The Investigation under Article 34 within the System of the UN Charter
- C Article 34 and Conflict Prevention
- D Applications of Article 34 and other SC Investigation Practices
- E The Powers of the Security Council under Article 34
- F Procedural Questions
- I Discretionary Decision
- II Adoption of the Agenda Including an Item under Article 34
- III The Legal Nature of a Decision to Investigate: Procedural (Article 27 (2)) or Other Matters (Article 27 (3)): Relationship between Articles 34 and 29
- IV Binding Effect of the Decision to Investigate on the States Concerned: the Relationship between Article 34 and Article 25
- V ‘Determination’ of the Endangering of Peace and Security
- VI Continuation of the Investigation after a ‘Determination’?
- G Conclusion
- Article 35
- Preliminary Material
- A Drafting History
- B Article 35 within the UN Charter System of Powers of Initiative
- C Article 35 and Obligations within Regional Arrangements
- D The Addressee of the Power of Initiative
- E The Power of Initiative of Member States, Article 35 (1)
- F The Power of Initiative of Non-Member States, Article 35 (2)
- G The Procedure in Matters that are Brought to the Attention of the Security Council or the General Assembly under Article 35
- Article 36
- Article 37
- Preliminary Material
- A The Purpose of Article 37 and the Role of the Security Council
- B Article 37 (1): Reference of Dispute to the Security Council by the Parties
- C Article 37 (2): Security Council Recommendations
- Article 38
- Preliminary Material
- A Drafting History, Purpose, and Relevance of Article 38
- B The Existence of ‘any Dispute’
- C Joint Request by All the Parties to such a Dispute
- D The Powers of the Security Council
- E Potential Addressees of Recommendations
- F Legal and Political Effects of Recommendations
- G Limitation or Extension of the Security Council’s Powers by the Parties
- Article 33
- Peacekeeping
- Preliminary Material
- Main Text
- A Introduction—the Concept of Peacekeeping and its Development
- B Historical Development and Practice
- I The League of Nations
- II The United Nations—Period of Trial and Error (1949–1964)
- III The Consolidation of the Concept—The Middle East after 1973
- IV Multidimensional Peacekeeping Operations (1990 Onward)
- V Peacekeeping in Crisis—Former Yugoslavia (1992 Onward)
- VI The Double Track Approach—Peacekeeping and Mandated Military Enforcement Action
- VII In Search of a Division of Tasks—UN Peacekeeping and Regional Organizations
- VIII Current Peacekeeping—A Complex Scene
- C The Functions of Peacekeeping Operations
- D The Formation and Structure of Peacekeeping Operations
- E The Legal Basis for Peacekeeping Operations in the UN Charter
- F The Rights and Duties of UN Peacekeeping Forces in the Host State
- G The Relation between the UN and the Participating States
- H ‘Permanent’ Forces and Stand-By Arrangements
- I Peacekeeping and other Military Action by Regional Organizations and Ad Hoc Groups of States
- J Mandated Forces
- K National Legal Problems of Participation
- L List of Operations
- Responsibility to Protect
- Preliminary Material
- Main Text
- A Introduction
- B Evolution of the Concept
- I The Origin of the Responsibility to Protect: The System of Collective Security and its Crisis
- II The Report of the International Commission on Intervention and State Sovereignty (2001)
- III The Report of the High-level Panel on Threats, Challenges and Change (2004)
- IV The Report of the Secretary General ‘In Larger Freedom’ (2005)
- V The World Summit Outcome Document (2005)
- VI Subsequent Practice (2005–09)
- VII The Report of the Secretary-General on Implementing the Responsibility to Protect (2009)
- VIII Conclusions
- C Instances of Application of the Responsibility to Protect: Political Agenda and/or Normative Tool?
- D Legal Analysis of the Responsibility to Protect Concept
- E The Impact of R2P on the System of Collective Security
- I Enhancing the Role and Legitimacy of the Security Council Action?
- II Limiting the Veto Power of the SC Permanent Members?
- III The Role of the General Assembly
- IV The Role of Regional Organizations
- V The Issue of Unilateral/Collective Intervention Outside the System of Collective Security of the UN
- VI Conclusions
- Drafting History
