Oppenheim's International Law: United Nations 0198808313, 9780198808312

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Preface Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

In 1992, Sir Robert Jennings and Sir Arthur Watts, to great acclaim, published the 9th edition of Oppenheim’s International Law: Peace. It had taken them long years to prepare. The 8th edition, prepared by Sir Hersch Lauterpacht, had been published in 1955. In 1994, I received an unexpected letter from Sir Robert Jennings and Sir Arthur Watts. In it they informed me that in the Preface to the 8th edition of Oppenheim, it had been envisaged that one day a volume of that great work would need to address the new phenomenon of international organizations. A new volume would be required for this work, which they invited me to undertake. I was, of course, hugely honoured by this invitation, though I realized from the outset that the amount of work it would involve would be enormous. I was at that time Professor of International Law at the London School of Economics and Political Science, in practice at the Bar as a silk, and a member of the UN Human Rights Committee under the International Covenant on Civil and Political Rights. There seemed not a spare moment, and I was increasingly wondering how I could continue both as an academic and at the Bar, and whether one of these strands to my life should go. But this suggestion that I should prepare a new Oppenheim was too great an honour to decline. Apart from pressures of work and time, there was another aspect that worried me greatly. By the early 1990s there were already some wonderful books on legal aspects of international organizations. In particular, Henry G Schermers’ International Institutional Law seemed to me to have fully covered the ground, in a scholarly and comprehensive way. Jennings and Watts had a short reply to that anxiety: ‘This is not to be a book about constitutions, statutes and rules’, they said. ‘It is to be about how things really are.’ Legal reality, they explained, is what is required for a practitioners’ book—and what has

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distinguished Oppenheim from other legal texts is that it is a practitioners’ book (albeit of interest to academics). During the next weeks, I worked on an extensive and detailed outline for a new Oppenheim on International Organizations. Jennings and Watts had some small suggestions to make, but seemed entirely content with my efforts. My anxieties about how on earth this project could be added to an already overfull work life, and whether the ground had not already been sufficiently covered, continued to weigh heavily. (p. vi) And then I learned that Sir Robert Jennings was to retire from the Bench of the International Court of Justice (ICJ) and that I had been nominated by the United Kingdom National Group to this seat. Everything had changed. And although I now left behind my academic life, the Bar, and the Human Rights Committee, there followed fourteen-and-a-half years so absorbing, so very busy, so focused on the expanding docket of the Court and all the issues facing the UN’s principal judicial organ, that there was simply no time at all to think about the new Oppenheim. Sadly, Sir Robert Jennings died in 2004. And by the time I retired from the Court in February 2009, the world of international organizations had simply exploded. There was no way—even leaving aside my concern about the Schermers book, now in its 5th edition under the co-authorship of Niels Blokker—that this seemed a feasible Oppenheim-style undertaking. I shared this view with Sir Arthur Watts. I told him that all that might be feasible would rather be an Oppenheim on UN law—and, given all that had happened in the last 20 years, this project would still be a vast undertaking for one person. Sir Arthur was sympathetic, and the matter was left open. Going to the Preface of the 8th edition (having hitherto relied on Jennings’ and Watts’ resumé to believe that it was there expressed that there would soon be needed an Oppenheim on the law of international organizations), I discovered a rather different version of events—and one that was much closer to the only option that I now regarded as remotely realistic. Hersch Lauterpacht had there written, ‘the present volume includes a chapter in the form of an Appendix covering over fifty pages and entitled “Specialised Agencies of International Co-operation and Administration” ’. The Appendix gives an analysis, supplemented by bibliographies, of the constitutions of specialized agencies of the United Nations and an account of the basic aspects of their activity. The great assistance of Dr CW Jenks was there acknowledged. In Chapter I, on the Foundation of the Law of Nations, Lauterpacht again referred to all the international activity now being undertaken by the various ‘permanent organs and institutions of the League of Nations, of the United Nations, and of the International Labour Organization’ (p 12). The explosion of international organizations quite outside the United Nations, which has so characterized the last 60 years, had yet to happen. I now began to work on a comprehensive new Outline, which would address the law of the UN ‘as a reality’, rather than the entire vast field of international organizations. But this field, too, had grown hugely, with the new membership that came with decolonization, the rejuvenation of the UN at the end of the Cold War, and myriad institutional and practical changes as the UN developed and evolved beyond all recognition. So there remained the deeply troubling question of how all this could realistically be prepared, without help, by one person. Even though I had over the years written on various aspects of the UN, and regularly visited UN Headquarters, and knew the changing staff of

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the UK Mission and of other Missions, and had (p. vii) always received support from within the Secretariat, the expansion of the UN was such that the task looked impossibly daunting. I was also acutely aware that there was by the 2000s a world of research methodology entirely different from that which I had myself employed over the years. So it was still not possible to see a way forward. And then something remarkable occurred. I learned that I had been awarded the 2007 Balzan Prize for ‘International Law since 1945’. This generous prize carried with it the instruction that half of its funds were to be used for the advancement of a research project involving young scholars in the field. It began to feel as if my retirement from the Court was meant to lead to the preparation of an Oppenheim’s International Law: United Nations rather than the half-longed-for life of cocktails and golf. I shared the news with Arthur Watts over breakfast at the Hotel des Indes in The Hague. The idea of bringing a handful of young scholars into this project met with his warm approval. I was relieved that we had managed to have this conversation. His unexpected death followed in late 2007, and has been so keenly felt in the world of international law. The next task was to choose my team of young scholars. I wanted a small team of the ‘brightest and the best’ young international lawyers, each of whom I knew well and who would be excited to participate in this collaborative work. Philippa Webb, who had been my Special Assistant and Legal Officer when I was President of the International Court of Justice (ICJ) in 2006 to 2009, was an obvious choice. I had known her since 2004, when she was at Yale Law School and came to the ICJ for a year as a University Trainee, working for Judge Owada and myself. She then took up a post as Associate Legal Adviser to the International Criminal Court (ICC) Prosecutor (from where I persuaded her to return to the ICJ, where she was to play an invaluable role in the President’s Office). In the years that followed, she was first a Visiting Assistant Professor at Leiden University and a Legal Consultant, and then came in 2012, as a Lecturer in Public International Law, to King’s College London. In 2015, she was made a Reader (Associate Professor) in Public International Law. Dr Webb is also a barrister at 20 Essex Street Chambers. As well as being—like all of the young colleagues—an active collaborator in this book, she took on the role of Project Manager. This has involved a substantial amount of extra work, such as organizing work schedules, liaising with the British Academy (who have been responsible for disbursement of the Balzan Funds), and writing to third parties. Her contribution to this project has been both invaluable and essential. Dapo Akande, now Professor at the University of Oxford, had been a student of mine when studying for the LLM at the London School of Economics in 1993–4. His exceptional abilities were apparent to me already then. He assisted me with some research and, after staying on to teach some classes at the LSE, became Lecturer at the University of Nottingham in 1998. Two years later he moved, as a Lecturer, to the (p. viii) University of Durham. In 2004 (after some persuasion on my part), Dapo Akande applied for a University Lectureship at Oxford and moved there, holding also a fellowship at St Peter’s College. He is Co-Director of the Oxford Institute for Ethics, Law and Armed Conflict, and of the Oxford Martin Programme on Human Rights for Future Generations. In September 2014, he was promoted to a professorship, where his interests in all aspects of international law (including blogging) are pursued. I first met Sandesh (Sandy) Sivakumaran when he was my University Trainee from New York University at the ICJ in 2003–4. At that time the General Assembly had not yet granted clerks to the judges. Our University Trainees performed much the same role for us (though as they were not staff members, certain matters were restricted for them). Sandy Sivakumaran then spent a year working at the International Criminal Tribunal for the Former Yugoslavia (ICTY), and then a year at the Lauterpacht Centre for International Law

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at Cambridge. In 2006 he took up a Lectureship at the University of Nottingham, and was in this post when our collaborative work began on this project. I had been impressed by his calm, systematic, and careful work when a university trainee at the ICJ, and had remained in touch with him when he left. In 2014, he was appointed Professor of Public International Law at Nottingham. James Sloan was another obvious choice. He too had been my student on the LSE LLM in 1993–4. He made a favourable impression during his time there, and I valued his assistance in some research work. Upon leaving the LSE, he did an internship at the Office of the United Nations High Commissioner for Human Rights (OHCHR), and then became the First Law Clerk to Antonio Cassese at a formative time at the ICTY. After a period in human rights postings in Geneva, James Sloan was appointed to a post of extraordinary responsibility for one so early in his career, as Political Adviser to the UN Mission in Bougainville. When the Head of Mission fell ill and left the country for two months, he was Acting Head of Mission. His duties as Political Adviser included advice about a final peace agreement, preservation of the ceasefire, and arms disposal issues. He went to the University of Glasgow Law School, being a Lecturer when he joined the School. In June 2015, he was appointed to a Chair. There was initially one more member of our team, Ralph Wilde, a Reader at University College London Law School, as we embarked on our venture. He had been a very accomplished student while I was at the LSE. To my regret, he felt it necessary, for personal and professional reasons, to leave the project in 2012. All of the work on this project—explained in more detail in the Introduction—has been done while my colleagues have been in full-time employment in their respective universities. They have each had their teaching duties, their administrative tasks, and their own individual research. It has been important to all of us that their major commitment of time and effort in this project should not be to the detriment of their universities or their students. Following the example of Jennings and Watts in the 9th edition of Oppenheim’s International Law: Peace, I have seen this new Oppenheim as a collaborative endeav(p. ix) our and not as a series of essays attributed to different authors. At the same time, universities in the UK have to demonstrate high-quality research outputs attributable to individual academics as part of the periodic Research Excellence Framework, which determines the allocation of government research funding. There has obviously been a difficult line to draw, and I am grateful to all concerned for being willing to walk this tightrope. The Introduction gives some sense of where each member of the team has made his/her major input. But it has been a collaborative endeavour. Our drafts have been circulated among the team members, and we have met once or twice a year, for a couple of days at a time, to discuss them, to hear comments and suggestions (and offers of assistance for finding this or that). Every chapter in this volume is the result of particular efforts and collaborative improvement and refining. Every chapter has been through at least two revisions. The ultimate responsibility remains mine. I have been full of admiration not only for all the hard work of my younger colleagues, but also for their remarkable knowledge and their impressive research skills. We have also managed to have fun, if not in the preparation of our work then at our periodic meetings. My hope that I would find a team who enjoyed working together has been fully realized. There are very many people and institutions to whom thanks are due.

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This project, in almost its entirety, became a realistic possibility (rather than a source of anxiety) because of the far-sightedness of the International Balzan Prize Foundation in determining that much of the prize money should be used for the fortunate prize-winner to lead a team of young scholars in new research. I did warn the Balzan Foundation that this project could not be done quickly and would take some years. The young scholars in what I will term the ‘Balzan-Oppenheim’ team have become older—as have I—and their careers have progressed along the way. I am deeply grateful for the funding provided by the Prize, and also for Balzan finding that difficult line between continuous interest and support on the one hand, and patience on the other. I also know that I owe a special debt of gratitude to Luzius Wildhaber, who advised the Foundation in the selection of the prize-winner. My thanks go also to the British Academy, which did me the great honour of proposing me for the Balzan Prize and then took on the task of administering their prize monies dedicated to this project. Robin Jackson and Ken Emond have provided helpful support throughout this journey. My considerable efforts could not rearrange the notes and papers and documents on the ICJ that I had accumulated over the years into files that systematically reflected what I had in mind for Chapter 29. I thank Katarzyna Lasinska and Maria Isabel Cubides Sanchez for their efficient help with this unenviable task. As explained, this work has been done over a period of time. Oxford University Press has provided us with the financial possibility, just before going to press, to have our (p. x) footnotes checked and updated by researchers Anna Begemann, Talita de Souza Dias, Terrence Flyte, Rishi Gulati, Neza Hren, Eleni Methymaki, Matthew Nelson, and Pem Chhoden Tshering. We thank them all. Certain experts from the UN, governments, and academic life have generously read one or more chapters as the volume neared completion. I am deeply grateful for their time and their comments and suggestions, from which this work has greatly benefited. Some of them have asked to remain anonymous. But they must know how deeply appreciative we are. We are able to express our profound thanks publicly to Niels Blokker, Pascal Chenivesse, Jane Connors, Matteo Crippa, Alice Edwards, Madeline Garlick, Emanuela-Chiara Gillard, Mona Khalil, Steve Kostas, Francesco Mancini, Adrian Morrice, Marco Divac Oberg, Francesco Presutti, Ken Roberts, Sangeeta Shah, and David Tolbert. Our thanks are also due to Sir Michael Wood.I would like to thank all those in the Hague Academy who have been so welcoming when I took an office in 2009 to work on this book—and particularly Niels van Tol of the Peace Palace Library for his ready help. I take this opportunity to thank the Registrar of the ICJ, HE Philippe Couvreur, for the prompt, ready and generous way in which he has responded, in some considerable detail, to my many requests. Documents and records missing from my own collection have been provided, false memories of legal arguments corrected, puzzles resolved. His assistance has been invaluable and I express my great gratitude. My thanks also go to HE Judge Peter Tomka, who of his own volition has on several occasions sent documents to keep me abreast of certain things, and then further responded to my queries that inevitably followed. I am deeply appreciative of his time, support, and our long friendship. The project was first discussed with John Louth of Oxford University Press, shortly after it had acquired the rights to the Oppenheim series. His counsel and support have been greatly appreciated at every stage. Merel Alstein has served as our main point of contact on the project, and has been a source of advice and encouragement. We express our gratitude

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to her exceptional team, including Natasha Flemming and Matthew Humphrys as well as Fiona Barry, Penny Dickman, Kim Harris, and Catherine Minahan. We each thank our families for all they have had to put up with during the years of preparation of Oppenheim’s International Law: United Nations. And having thought that with the publication of Themes and Theories in 2009 my expression of thanks to Terence, my husband, was complete, I now find that once again I am thanking him for his endless patience and support in yet another endeavour. Rosalyn Higgins London, 2017 Professor of International Law, London University, 1981–95;Bencher of the Inner Temple, 1981–;Member of the International Court of Justice, 1995–2009; President 2006–9

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Contents Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

VOLUME I Table of Cases xxxiii Table of International Instruments lii Table of Domestic Legislation lxxx Table of UN Documents lxxxii List of Abbreviations cv Part 1  Introduction 1.  Introduction 3 1.  The purposes of the volume 3 2.  The methods employed and typologies selected 4 3.  The League of Nations 4 4.  The Charter of the United Nations 6 5.  Structure of the volume 8 Part 2  The United Nations: What it is 2.  The General Assembly 13 1.  Introduction 14

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2.  Membership and procedure 16 2.1  Composition 16 2.2  Delegations 16 2.3  Procedure 17 3.  Meetings 17 3.1  Generally 17 3.2  Regular sessions 18 3.3  Special sessions 19 3.4  Emergency special sessions 20 4.  Subordinate organs 21 4.1  Generally 21 4.2  General Committee 22 4.3  Main Committees 22 (p. xii) 5.  Voting 23 5.1  Generally 23 5.2  Voting on matters of election or appointment 24 5.3  Voting on draft resolutions 36 6.  Role of the President 44 6.1  Generally 44 6.2  Procedural powers 45 6.3  Other functions 47 6.4  Office of the President 48 7.  Functions 49 7.1  Generally 49 7.2  Organization-related functions 49 7.3  Functions relating to the purposes of the United Nations 54 8.  Limitations on the functioning of the General Assembly 56 8.1  Article 2(7) 56 8.2  Article 12(1) 57 8.3  Article 11(2) 61 3.  The Security Council 62 1.  Introduction 63 2.  Membership 64 2.1  Generally 64 2.2  Expansion 65

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3.  Procedure 69 4.  Meetings 70 4.1  Ordinary meetings 70 4.2  Periodic meetings 71 4.3  High-Level and Summit Meetings 72 4.4  Public nature 73 4.5  Open debates and open briefings 73 4.6  Meeting formats 74 4.7  Private meetings 76 4.8  Informal consultations of the whole 77 4.9  Informal dialogues 79 4.10  ‘Arria-formula’ meetings 79 4.11  Missions 80 5.  Participation 81 5.1  UN member states that are not members of the Security Council 81 5.2  Non-member states of the UN 82 5.3  Secretariat 82 5.4  Non-state entities 83 5.5  Others 84 6.  Voting 85 6.1  Generally 85 (p. xiii) 6.2  ‘Procedural’ versus ‘non-procedural’ 85 6.3  Obligation to abstain 87 6.4  Consensus voting 87 6.5  Exercise of the veto 88 7.  Presidency 91 7.1  Generally 91 7.2  Role in meetings 92 7.3  Representative functions 93 7.4  Other functions 94 8.  Functions 95 8.1  Organization-related 95 8.2  Peace and security 96 4.  The Trusteeship Council 100 1.  Introduction 100

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2.  Membership 101 2.1  Generally 101 2.2  Representation of China 103 3.  Procedure and meetings 104 4.  Functions 105 5.  Objectives 105 6.  Trust territories 106 6.1  Categories 106 6.2  Territories supervised 106 6.3  Entities that did not become trust territories 107 6.4  Administering authority 108 7.  Non-self-governing territories 109 8.  Relations with other principal organs 111 9.  Reform 111 5.  The Economic and Social Council 113 1.  Introduction 114 2.  Membership, procedure, and voting 116 2.1  Size 116 2.2  Election of members 117 2.3  Subsidiary organs 118 2.4  Rules of procedure 119 2.5  Voting 119 2.6  Bureau 121 2.7  President 122 3.  Functions 123 3.1  Promotion and recommendation functions 123 (p. xiv) 3.2  Calling international conferences and preparing draft conventions 124 3.3  Coordination and assistance functions 124 3.4  Follow-up 127 4.  Meetings and programme of work 128 4.1  Meetings 128 4.2  Annual programme of work 128 4.3  Annual themes 130 4.4  Special sessions 131

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5.  Participation in meetings 132 5.1  Participation by ECOSOC members 132 5.2  Participation of UN member states that are not ECOSOC members 132 5.3  Participation of states that are not UN members 133 5.4  Nature of participation of non-members 133 5.5  Other participants 135 6.  ECOSOC’s relationships with the other principal organs 138 6.1  General Assembly 138 6.2  International Court of Justice 141 6.3  Trusteeship Council 141 6.4  Secretary-General 142 6.5  Security Council 142 7.  Areas of competence 144 7.1  Generally 144 7.2  Economics 145 7.3  Social, cultural, educational, health, and related matters 145 7.4  Human rights 146 7.5  Peacekeeping 146 8.  Reform 147 8.1  Generally 147 8.2  Reforms in the mid-2000s and beyond 149 6.  Subsidiary Organs 152 1.  Introduction 153 1.1  ‘Subsidiary organs’ and ‘principal organs’ 153 1.2  Essential characteristics of a subsidiary organ 154 1.3  Significance of the characterization ‘subsidiary organ’ 156 1.4  Terminology 157 2.  Powers to establish subsidiary organs 158 2.1  General and particular powers 158 2.2  Limitations on powers of establishment 159 3.  Legal status of subsidiary organs 161 4.  Powers of subsidiary organs 162 4.1  Generally 162 4.2  Limitations on the powers of subsidiary organs 165

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(p. xv) 5.  Nature of the functioning of subsidiary organs 167 5.1  Composition 167 5.2  Participation 168 5.3  Procedure 169 5.4  Capacity in which members act 170 5.5  Timing of meetings 170 5.6  Duration of existence 170 6.  Joint subsidiary bodies 171 7.  Subsidiary organ functioning in a dual capacity 172 8.  Entities similar in nature to subsidiary organs 173 8.1  Treaty bodies 173 8.2  Specialized agencies 174 9.  Subsidiary organs of the General Assembly 175 9.1  Generally 175 9.2  Main Committees 176 9.3  Procedural Committees and Standing Committees 182 9.4  Other entities 185 9.5  Functions of the subsidiary organs of theGeneral Assembly 191 9.6  Subsidiary organs of the General Assembly no longer in existence 194 10.  Subsidiary organs of the Security Council 195 10.1  Generally 195 10.2  Classification 196 11.  Subsidiary organs of ECOSOC 213 11.1  Generally 213 11.2  Classification 215 12.  Subsidiary organs of the Secretary-General 225 12.1  Generally 225 12.2  Some examples 226 7.  United Nations Specialized Agencies 228 1.  Introduction 229 2.  Definition 230 3.  Development 232 4.  Other agencies or organizations 235 4.1  Former specialized agencies 235

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4.2  Agencies of a similar nature 236 4.3  Other organizations 237 5.  Membership 239 5.1  Admission 239 (p. xvi) 5.2  Denial of membership, suspension or expulsion, denial of privileges, and criticism of policies 244 5.3  Withdrawal 247 6.  Legal personality 248 7.  Relationship agreements 249 7.1  Generally 249 7.2  Features of agreements 249 8.  Relationship with principal organs 251 8.1  ECOSOC 251 8.2  General Assembly 255 8.3  Trusteeship Council 255 9.  Overview of mandates 256 9.1  Generally 256 9.2  Economic specialized agencies 256 9.3  Technical specialized agencies 257 9.4  Other specialized agencies 258 10.  Bodies established by specialized agencies 259 8.  Membership 260 1.  Introduction 261 2.  Admission to membership 263 2.1  The procedure for admission 263 2.2  The criteria for admission 268 2.3  Application of the criteria for admission 271 2.4  Divided states 279 2.5  Merger of states 280 3.  Loss of membership and membership rights 281 3.1  Suspension from membership 281 3.2  Expulsion from membership 285 3.3  Withdrawal from membership 287 4.  Readmission to membership 291

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5.  State succession and membership: problems of extinction and continuity 294 5.1  Dissolution of member states 297 6.  Representation of members/credentials 305 6.1  The procedure for approval of credentials 306 6.2  Representation and determinations as to which entity is the government of a state 306 6.3  The representation of China and Taiwan at the UN 309 7.  Observers 310 7.1  Observer non-member states 314 7.2  Intergovernmental organizations as observers 317 (p. xvii) 7.3  National liberation movements as observers 318 7.4  Non-governmental organizations as observers 318 9.  Powers 320 1.  Meaning and relationship to legal personality 321 2.  Nature and scope 323 2.1  Different types of powers 323 2.2  Broad doctrine and expansion of powers 325 3.  General considerations 327 3.1  Purposes and principles of the organization 327 3.2  Divisions of competence between principal organs and subsidiary organs 329 4.  Domestic jurisdiction limitation of Article 2(7) 331 4.1  The provision and its origins 331 4.2  Matters that fall ‘essentially’ within the jurisdiction of member states 333 4.3  Matters subject to Security Council determinations 336 5.  Substantive content of powers—on the international plane 337 5.1  Power to enter into treaties 337 5.2  Power to bring international claims 340 6.  Substantive content of powers—in domestic law 341 6.1  International law basis for municipal law capacities 341 6.2  Competence to contract 345 6.3  Competence to acquire and dispose of property 347 6.4  Competence to institute legal proceedings 349

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7.  Consequences of ultra vires acts 351 7.1  Which acts are ultra vires? 351 7.2  Responsibility for ultra vires acts 352 7.3  The validity and legal effect of ultra vires acts 352 7.4  Judicial review of the legality of acts of the organization 355 10.  Voting 357 1.  Introduction 357 2.  General Assembly 358 2.1  Right to vote and equality of votes 358 2.2  Majority required 359 2.3  Methods of taking decisions 362 2.4  Voting conduct 365 2.5  Elections 368 3.  Security Council 370 3.1  Framework 370 3.2  ‘Procedural’ and ‘all other’ matters 370 3.3  Proceedings of the Security Council regarding voting upon the question whether the matter was procedural 372 3.4  Veto 372 (p. xviii) 3.5  Abstention, non-participation, and absence 375 3.6  Statements before or after the vote 377 3.7  Announcement of vote results 377 3.8  Adoption of resolutions and decisions by consensus or without a vote 378 3.9  Elections 378 4.  Economic and Social Council 379 4.1  Right to vote and equality of votes 379 4.2  Majority required 379 4.3  Methods of taking decisions 380 4.4  Decision-making by commissions 382 11.  The Legal Personality of the United Nations 383 1.  Meaning of legal personality and basis for its possession by the United Nations 385 1.1  Creation by states 385 1.2  Status as an international organization—distinct from the member states 385 1.3  Basis for legal personality 388

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2.  Consequences of legal personality 390 2.1  Legal separateness 390 2.2  Benefits 390 2.3  ‘Limited’ or ‘functional’ personality? 391 2.4  Position in relation to states and other international legal persons 392 2.5  Relationship to powers 393 3.  Domestic law 393 3.1  Position in international law—member states and parties to the Privileges and Immunities Convention 394 3.2  Position in international law—state and non-state territorial entities not parties to the Charter and/or 1946 Convention 394 3.3  Position in domestic law 396 3.4  Consequences of possession of legal personality in domestic law 397 4.  Scope of legal personality 398 4.1  General presumption 398 4.2  Distinction between subsidiary organs and other bodies, specialized agencies, joint bodies, and treaty bodies 398 4.3  Subsidiary organs 399 4.4  ‘Independent’ organs, including funds and programmes 400 4.5  Specialized agencies 401 4.6  Joint bodies 404 4.7  Separate bodies including UN ‘treaty bodies’ 405 4.8  Opposability to non-members 406 5.  Independent competence of subsidiary organs to rely on the UN’s legal personality in international law and such personality granted in municipal law 406 5.1  Generally 406 5.2  Lack of competence 406 (p. xix) 5.3  Competence to establish working relationships externally 408 5.4  Competence to act externally and in municipal legal orders engaging the legal personality of the organization 408 5.5  Prohibited external actions 411 12.  The United Nations and International Law 413 1.  Introduction 414

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2.  The development of international law by the UN 414 3.  The interpretation of international law by the UN 417 4.  The application of international law to the UN in particular treaties 419 5.  The obligation of the UN to comply with international law 420 5.1  Peacekeepers and international humanitarian law 423 5.2  Territorial administration and human rights law 425 6.  The effect of the UN Charter on international law: Article 103 427 13.  Responsibility of the United Nations 429 1.  Introduction 430 1.1  Overview 430 1.2  Draft Articles on the Responsibility of International Organizations 431 1.3  Internationally wrongful act 432 2.  Attribution of conduct 433 2.1  Attribution of the conduct of a UN organ or agent 433 2.2  Attribution of conduct of organs of a state or organs or agents of another international organization placed at the disposal of the UN 434 2.3  Attribution of conduct performed ultra vires 434 3.  Allocating responsibility between the UN and member states 435 3.1  Membership does not automatically entail responsibility 435 3.2  Responsibility of a member state in connection with the conduct of the UN 435 3.3  Responsibility of the UN in connection with the act of a state or another international organization through aid and assistance in committing an internationally wrongful act 437 3.4  Responsibility of the UN in connection with the act of a state or another international organization through authorizing an internationally wrongful act or authorizing a mission that commits an internationally unlawful act 438 3.5  Responsibility of member states towards third parties for an internationally wrongful act of the UN 440 4.  Unequal access to dispute settlement mechanisms 440 5.  Immunity of the UN in national proceedings 441 (p. xx) 6.  Circumstances precluding wrongfulness 442 6.1  Consent 442 6.2  Countermeasures 442

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6.3  Self-defence 443 6.4  Necessity 443 7.  Consequences of a finding of responsibility 444 7.1  Obligation of member states to enable the organization to make reparation 444 7.2  Compensation 444 7.3  Ex gratia payments 445 7.4  Arbitration or negotiated settlement 446 7.5  Satisfaction 446 8.  The implementation of the international responsibility of an international organization 447 8.1  Invocation 447 8.2  Nationality of claims and the local remedies rule 447 8.3  Concurrent claims 447 9.  Responsibility of the UN in peacekeeping operations 447 9.1  ‘Effective control’ of peacekeeping operations 447 9.2  Responsibility for the off-duty acts of peacekeepers 451 14.  The Financing of the United Nations 452 1.  Regular budget 452 1.1  Scope and extent 452 1.2  Authorization of programmes 453 1.3  Formulation of estimates: the Secretariat 455 1.4  Examination of estimates: the ACABQ 457 1.5  Approval and appropriation: Fifth Committee 459 1.6  Implementation and the Contingency Fund 464 1.7  Audit 465 1.8  The Working Capital Fund 466 1.9  Reform 467 2.  Financing of peacekeeping 467 2.1  Special accounts for peacekeeping measures 467 2.2  Budget submission and approval 469 3.  International Tribunals 470 3.1  Apportionment of costs for International Tribunals 471 4.  Voluntary contributions 471 4.1  Donors 472

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4.2  Trust funds 473 4.3  Private sector 477 4.4  Gifts 477 5.  Self-support 477 5.1  Income from staff assessment 478 (p. xxi) 5.2  General income 478 5.3  Income from services rendered to the public 479 6.  Apportionment of expenses of the organization 479 6.1  Notion of ‘expenses of the Organization’ 479 6.2  Committee on Contributions 480 6.3  Scale of assessments 480 6.4  Apportionment of costs for peacekeeping operations among member states 482 6.5  Payment of assessed contributions in general 487 6.6  Currency 487 6.7  Arrears 488 6.8  Financial situation of the UN 492 6.9  Capital Master Plan 492 7.  Administrative and budgetary coordination between the UN and specialized agencies 493 15.  The United Nations Secretariat and Secretary-General 495 1.  Structure and functions of the Secretariat 496 1.1  Principal organ of the UN 496 1.2  Relationship between the Secretariat and the SecretaryGeneral 496 1.3  Scope and extent of the Secretariat 497 1.4  Structure of the Secretariat 499 1.5  Functions of the Secretariat 500 1.6  Efforts to reform the Secretariat 503 2.  The International Civil Service 505 2.1  Applicable rules 505 2.2  Common system 506 2.3  Secretariat’s role in the common system 507 2.4  Fifth Committee’s role in the common system 507 2.5  Chief Executive Board’s role in the common system 507 2.6  International Civil Service Commission’s role in the common system 508

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2.7  Joint Inspection Unit’s role in the common system 508 2.8  Appointment and classification 509 2.9  Conditions of service 514 2.10  Duration of appointment 514 2.11  Remuneration and pensions 515 2.12  Personal conduct and disciplinary measures 517 2.13  Internal justice 519 2.14  Safety and security 523 2.15  Staff representative bodies 524 3.  The Secretary-General 525 3.1  Appointment 526 3.2  Term of office 528 3.3  Re-election 528 (p. xxii) 3.4  Termination of office and extension or replacement 529 3.5  Administrative functions 529 3.6  Legal functions 534 3.7  Representational functions 540 3.8  Political functions 540 3.9  Deputy Secretary-General 543 16.  United Nations Privileges and Immunities 544 1.  Sources of privileges and immunities 545 1.1  The United Nations Charter 545 1.2  Treaties conferring privileges and immunities 547 1.3  Customary international law 553 1.4  National law 555 1.5  Relationship between sources of law providing for privileges and immunities 556 2.  Reasons for the conferral of privileges and immunities 558 2.1  The difference between privileges and immunities 558 2.2  Functional necessity as the basis for the conferral of UN privileges and immunities 559 2.3  Privileges and immunities as protection of the independence of the organization 559 2.4  Privileges and immunities as a means of ensuring the equality of member states and preventing the gaining of an undue financial advantage 561

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2.5  Privileges and immunities as a means of facilitating the work of the organization 561 2.6  Similarities in the basis for conferral of privileges and immunities on the UN and on states and state agents 562 2.7  Differences in the basis for conferral of privileges and immunities on the UN and on states and state agents 562 3.  Privileges and immunities of the organization 564 3.1  Immunity from legal process 564 3.2  Inviolability of UN premises 574 3.3  Immunity of UN property and assets from search and other forms of interference 576 3.4  Inviolability of archives and documents 576 3.5  Currency and fiscal privileges and immunities 577 3.6  Privileges and immunities with regard to communication facilities 582 4.  Privileges and immunities of representatives of member states 583 4.1  Purpose of privileges and immunities with regard to representatives 583 4.2  The distinction between resident and temporary representatives 583 4.3  Content of privileges and immunities of temporary representatives 587 4.4  Temporal scope of privileges and immunities of temporary representatives 588 4.5  Rights of transit and access to meetings 589 (p. xxiii) 4.6  Waiver, abuse of privileges, and departure at the request of the host state 590 4.7  Immunities with respect to the property and assets of the mission 590 4.8  The position of observers and other invitees to the UN 591 5.  Privileges and immunities of officials of the organization 592 5.1  Officials entitled to privileges and immunities 592 5.2  The distinction between diplomatic privileges and immunities and functional immunity 595 5.3  Immunity from legal process 597 5.4  Exemptions from taxation and custom duties 598 5.5  Other privileges and immunities 600 5.6  Temporal scope of functional privileges and immunities accorded to officials 600

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5.7  The different position of persons connected with judicial organs 601 6.  Privileges and immunities of experts on mission 603 6.1  The privileges and immunities accorded to experts 603 6.2  Definition of experts 604 7.  Abuse, waiver, and settlement of disputes regarding privileges and immunities 605 7.1  Abuse and waiver 605 7.2  Settlement of disputes 606 8.  Privileges and immunities during peacekeeping operations 607 8.1  Sources of privileges and immunities 607 8.2  The privileges and immunities accorded to the peacekeeping mission 608 8.3  The privileges and immunities accorded to members of the peacekeeping mission 609 8.4  Human rights and immunities in international territorial administrations 614 9.  Immunities of international organizations and the jurisdiction of international criminal tribunals 616 VOLUME II Part 3  The United Nations: What it Does 17.  Improving Social Conditions 623 1.  Introduction 623 1.1  Types of activities for the purpose of improving social conditions 624 1.2  The ‘social’ issues addressed by the UN 625 1.3  Major summits and conferences 628 2.  Social issues in the work of the principal organs of the UN 629 2.1  The General Assembly and social issues 629 2.2  The United Nations Economic and Social Council 631 2.3  Social issues in the work of the Security Council 636 2.4  Social Issues in the work of the Secretary-General 639 (p. xxiv) 3.  UN Departments, Programmes, and Offices involved in social issues 640 3.1  The United Nations Department of Economic and Social Affairs 640 3.2  UN Offices dealing with specific social themes 643

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3.3  Other UN bodies and permanent Programmes with a role in the improvement of social conditions 646 4.  Institutional coordination of UN social action 650 18.  Improving Economic Wellbeing 655 1.  Introduction 655 2.  The Second Committee of the General Assembly 657 3.  The role of ECOSOC in economic wellbeing 659 4.  The role of the UNDP in economic wellbeing 661 5.  The United Nations Conference on Trade and Development 662 6.  The United Nations Industrial Development Organization 664 7.  Certain themes 666 7.1  Financing for development 666 7.2  Sustainable development 666 7.3  Poverty eradication 668 7.4  Groups of countries in special situations 668 8.  Conclusion 670 19.  Democratic Governance 671 1.  Underpinnings of democratic governance 671 2.  Assistance of the United Nations 676 3.  Areas of UN assistance 677 3.1  Political pluralism 678 3.2  Electoral assistance 679 3.3  Strengthening and building institutions 680 3.4  Civic education 681 3.5  Civil society 681 3.6  Free and independent media 682 3.7  Promoting the rule of law 682 3.8  Protection and promotion of human rights 683 20.  Electoral Assistance 686 1.  Chronology 686 2.  Rationale behind the provision of assistance 688 3.  Forms of assistance 689 3.1  Organization and conduct of elections 689 (p. xxv) 3.2  Supervision, verification, certification, and observation of elections 691

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3.3  Coordination of, and support for, observers 693 3.4  Technical assistance and capacity-building 694 4.  Procedure relating to the provision of assistance 695 5.  UN entities involved in the provision of assistance 697 5.1  The Focal Point and the Electoral Assistance Division 697 5.2  Other UN entities 698 21.  Disaster Relief 702 1.  The notion of disaster relief 702 2.  The role of the UN in the elaboration of international law relating to disaster relief 704 3.  The provision and coordination of disaster relief 708 3.1  Provision of disaster relief 708 3.2  Coordination of disaster relief at the global level 711 3.3  Coordination of disaster relief at the country level 719 22.  Promotion and Protection of Human Rights 722 1.  Introduction 724 2.  The Principal Organs 726 2.1  The Economic and Social Council 726 2.2  The General Assembly 732 2.3  The Security Council 737 2.4  The International Court of Justice 754 3.  The Human Rights Council 755 3.1  Establishment 755 3.2  Position within the UN system 757 3.3  Structure and operation 758 3.4  Mandate 761 3.5  Human Rights Council bodies 784 3.6  Other activities 790 4.  Office of the United Nations High Commissioner for Human Rights 791 4.1  Establishment 791 4.2  Position within the UN system 792 4.3  Structure of the Office 793 4.4  Mandate and work 795 4.5  Funding 810

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5.  Human Rights Treaties and Treaty Bodies 812 5.1  Standard-setting 815 5.2  Human rights treaty bodies 829 (p. xxvi) 6.  Human Rights Conferences 873 7.  Geneva–New York relations 877 23.  Office of the United Nations High Commissioner for Refugees 879 1.  Establishment 880 2.  Position within the UN system 881 3.  Structure 883 3.1  Executive Committee of the High Commissioner’s Programme 883 3.2  High Commissioner 885 3.3  Deputy and Assistant High Commissioners 886 3.4  Representatives 886 3.5  Organizational structure and staffing 886 4.  Location 887 5.  Mandate and role 888 5.1  Persons within the UNHCR’s mandate 889 5.2  Functions 895 6.  Funding 905 24.  Protecting the Environment 908 1.  Introduction 908 2.  Work of the principal organs 909 2.1  The General Assembly 909 2.2  The Security Council 912 2.3  The Economic and Social Council 913 2.4  The International Court of Justice 916 3.  Work of the specialized agencies 916 4.  Institutional arrangements of multilateral environmental agreements 918 5.  The United Nations Environment Programme 919 25.  Promotion of International Law 927 1.  Introduction 927 2.  The International Law Commission 929 2.1  Role 929

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2.2  Codification and progressive development 929 2.3  Election of members 931 2.4  Selection of topics 933 2.5  Working methods 934 2.6  Outcomes of ILC work 939 2.7  Relationship with the General Assembly and the Sixth Committee 942 (p. xxvii) 2.8  Role of the Codification Division 943 2.9  Relationship with other bodies 944 2.10  The relationship between the ILC and the ICJ 944 2.11  Relevance of the ILC 945 3.  The Sixth Committee and the promotion of international law 946 4.  The Secretary-General and the promotion of international law 947 5.  United Nations Commission on International Trade Law 947 6.  Law of the Sea 949 7.  Promotion of treaties 950 8.  Other subsidiary bodies 950 9.  Legal resources and training 952 9.1  United Nations Programme of Assistance in the Teaching, Study, Dissemination, and Wider Appreciation of International Law and the Audiovisual Library of International Law 952 9.2  United Nations Institute for Training and Research 952 9.3  United Nations University 953 9.4  International Law Seminar 954 10.  Promotion of certain themes relevant to the UN’s work 955 10.1  UN observances/designated themes for days, weeks, years, or decades 955 10.2  Rule of law 956 26.  Keeping the Peace 958 1.  Introduction 959 1.1  The roles of the General Assembly and the Security Council in keeping the peace 960 2.  The role of the General Assembly 963 2.1  Generally 963 2.2  Power to discuss and recommend 964 2.3  Powers and limitations in particular articles 966

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2.4  Selected General Assembly resolutions impacting on keeping the peace 973 3.  The role of the Security Council 979 3.1  Introduction 979 3.2  Sanctions 981 3.3  Force 999 27.  Peacekeeping and other Peace Operations 1025 1.  Introduction 1027 1.1  Generally 1027 1.2  Fundamental characteristics 1030 1.3  Categories of peacekeeping 1033 2.  Legal basis for peacekeeping 1039 (p. xxviii) 2.1  Legal basis under Chapter VI of the UN Charter 1040 2.2  Legal basis under Chapter VII of the UN Charter 1042 3.  Peacekeeping and consent 1055 3.1  Security Council’s practice of obtaining consent 1056 3.2  Consent and intervention 1059 3.3  Consent and representativeness of the government 1059 3.4  Revocation of consent 1060 3.5  Renewal of consent on changed mandate 1061 4.  Peacekeeping and the use of force 1062 4.1  Generally 1062 4.2  Indications that an operation is robust 1063 4.3  Robust peacekeeping in practice 1065 5.  Peacekeeping and impartiality 1067 6.  Functions of peacekeeping operations 1068 6.1  Generally 1068 6.2  Observation, verification, and reporting 1068 6.3  Interposition 1069 6.4  Governance 1070 6.5  Security functions 1070 6.6  Civilian protection 1071 7.  United Nations Transitional Administrations 1074 7.1  Generally 1074 7.2  Fundamental characteristics 1075

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7.3  Overview of UNTAs 1080 7.4  Legal framework 1086 7.5  Functions 1088 7.6  Evaluation 1089 28.  Peaceful Settlement of Disputes 1093 1.  Principle of peaceful settlement of disputes 1094 1.1  Charter framework 1094 1.2  Meaning of dispute 1094 1.3  Choice of means and proliferation of means 1095 1.4  The law applicable to dispute settlement 1096 2.  Procedures envisaged in the UN Charter 1096 2.1  Member states’ role in the peaceful settlement of disputes 1096 2.2  Security Council’s role in the peaceful settlement of disputes 1097 2.3  General Assembly’s role in the peaceful settlement of disputes 1105 2.4  Secretariat’s role in the peaceful settlement of disputes 1107 2.5  International Court of Justice’s role in the peaceful settlement of disputes 1113 (p. xxix) 3.  Means of settlement 1115 3.1  Negotiation and consultation 1116 3.2  Inquiry and fact-finding 1118 3.3  Mediation and good offices 1120 3.4  Conciliation 1122 3.5  Arbitration 1123 3.6  Judicial settlement 1125 3.7  Resort to regional agencies or arrangements 1126 3.8  Other peaceful means 1129 3.9  Conflict prevention 1130 Part 4  Adjudication Within the United Nations System 29.  The International Court of Justice 1137 1.  The ICJ as a principal organ of the United Nations 1138 2.  The Bench 1138 2.1  Nominations to the Bench 1139 2.2  Election to the Bench 1141

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3.  The Court’s functions 1143 3.1  Introduction 1143 3.2  Judges ad hoc 1143 3.3  Notification of proceedings 1157 3.4  Advisory Opinions 1164 3.5  Registry and the Registrar 1177 3.6  Relations with other principal organs 1181 4.  The ICJ is distinct from other principal organs 1183 4.1  Background 1183 4.2  Administrative independence generally 1184 4.3  The Court’s autonomy over staff matters 1184 4.4  Financial administration of the Court 1188 4.5  United Nations external oversight 1189 4.6  Special arrangements for the Court regarding its protocol, standing, privileges, and immunities 1191 5.  ICJ financing and the UN 1193 5.1  Budget of the ICJ 1193 6.  The ICJ and other international courts and tribunals 1203 6.1  Evidence that courts and tribunals seek to support judicial coherence 1205 6.2  Resolution of fragmentation 1206 6.3  Minimization of fragmentation 1206 7.  Methods of work of the ICJ 1207 7.1  Introduction 1207 7.2  Agents 1207 (p. xxx) 7.3  The Court’s internal judicial practice 1210 7.4  Recusal and other incompatibilities 1212 7.5  Evidence 1219 8.  ICJ efficiency 1242 8.1  Introduction 1242 8.2  Written pleadings 1245 8.3  Practice Directions 1246 8.4  Late documents 1248 8.5  Oral proceedings 1250 8.6  Chambers 1252

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30.  The United Nations Compensation Commission 1254 1.  Introduction 1254 2.  Establishment 1256 3.  Structure 1256 3.1  The Governing Council 1257 3.2  The Commissioners 1259 3.3  The Secretariat 1261 4.  The claims 1262 4.1  Categories of claims 1262 4.2  Filing of claims 1269 4.3  Processing of, and deciding on, claims 1271 4.4  The role of Iraq in the process 1276 5.  Payment to the Fund 1278 6.  Payment of claims 1280 31.  Criminal Tribunals Established by, or in Relationship with, the UN 1284 1.  The International Criminal Tribunal for the Former Yugoslavia 1286 1.1  Establishment 1286 1.2  Location 1288 1.3  Composition 1289 1.4  Jurisdiction 1293 1.5  Powers 1294 1.6  Relationship with other institutions 1298 1.7  Resources 1299 1.8  Completion Strategy 1301 1.9  International Residual Mechanism for Criminal Tribunals 1304 2.  The International Criminal Tribunal for Rwanda 1308 2.1  Establishment 1308 2.2  Location 1309 2.3  Composition 1310 2.4  Jurisdiction 1313 2.5  Powers 1314 (p. xxxi) 2.6  Relationship with other institutions 1316 2.7  Resources 1317 2.8  Completion Strategy 1318 2.9  International Residual Mechanism for International Criminal Tribunals 1319

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3.  The International Criminal Court 1324 3.1  Establishment 1324 3.2  Location 1326 3.3  Relationship of the ICC with the United Nations 1327 3.4  Composition of the ICC 1337 3.5  Assembly of States Parties 1343 3.6  Jurisdiction and admissibility 1346 3.7  Financial and administrative arrangements 1350 3.8  Powers/enforcement 1352 3.9  Review Conference 1353 4.  The Special Court for Sierra Leone 1357 4.1  Establishment 1357 4.2  Nature 1358 4.3  Location 1359 4.4  Composition 1361 4.5  Jurisdiction 1364 4.6  Powers 1367 4.7  Relationship with other bodies 1368 4.8  Resources 1370 4.9  Completion, residual issues, and legacy 1373 5.  The Extraordinary Chambers in the Courts of Cambodia 1377 5.1  Establishment 1377 5.2  Nature 1379 5.3  Composition 1380 5.4  Jurisdiction 1384 5.5  Powers 1387 5.6  Relationship with other bodies 1387 5.7  Resources 1387 5.8  Completion, residual issues, and legacy 1388 6.  The Special Tribunal for Lebanon 1390 6.1  Establishment 1390 6.2  Nature 1393 6.3  Location 1396 6.4  Composition 1396 6.5  Jurisdiction and applicable law 1399 6.6  Powers and relationship with other bodies 1403

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6.7  Resources/financing 1407 6.8  Completion, residual issues, and legacy 1408 7.  Kosovo Regulation 64 Panels 1410 7.1  Establishment and nature 1410 7.2  Composition 1412 7.3  Jurisdiction and applicable law 1413 (p. xxxii) 7.4  Powers 1414 7.5  Relationship with other bodies 1414 7.6  Resources 1415 7.7  Completion, residual issues, and legacy 1416 8.  The East Timor Special Panels for Serious Crimes 1418 8.1  Establishment and nature 1418 8.2  Composition 1419 8.3  Jurisdiction, applicable law, and powers 1421 8.4  Relationship with other bodies 1423 8.5  Resources 1425 8.6  Completion, residual issues, and legacy 1426 9.  Bosnia and Herzegovina War Crimes Chamber 1428 9.1  Establishment and jurisdiction 1428 9.2  Composition 1431 9.3  Relationship with other bodies 1434 9.4  Resources 1435 9.5  Completion, residual issues, and legacy 1436 Index 1437

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Table of Cases Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

International Courts International Court of Justice (ICJ) Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, Order of 17 October 2008, ICJ Rep 2010 29.147, 29.154, 29.156 Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo (Advisory Opinion) ICJ Rep 2010 8.18, 9.67, 15.65, 28.08, 28.36, 29.62, 29.118, 29.119, 29.127, 29.178, 31.162, 31.171 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Request for Advisory Opinion) (Advisory Opinion) ICJ Rep 2010 29.135, 29.142 Aegean Sea Continental Shelf (Greece v Turkey) ICJ Rep 1978 28.34, 28.38 Aerial Herbicide Spraying (Ecuador v Colombia) ICJ Rep 2013 29.89, 29.101, 29.102 Aerial Incident of 3 July 1988 (Islamic Republic of Iran v United States of America) ICJ Rep 1996 28.37 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Preliminary Objections) (Judgment) ICJ Rep 2007 25.49, 29.367 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Judgment) ICJ Rep 2010 22.38, 22.188, 22.194, 29.286, 29.368

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Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) ICJ Rep 2012 29.89 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Compensation) ICJ Rep 2012 29.415 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v Colombia) ICJ Rep 2016 29.32, 29.360 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v Colombia) (Preliminary Objections) ICJ Rep 2016 29.101 Ambatielos (Greece v UK) ICJ Rep 1953 29.411 Appeal relating to the Jurisdiction of the ICAO Council (India v Pakistan) (Judgment) ICJ Rep 1972 7.39, 29.95 Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (Advisory Opinion) (Mazilu) ICJ Rep 1989 5.53, 6.23, 16.26, 16.62, 16.81, 16.82, 16.84, 16.95, 16.108, 22.38, 22.61, 29.110, 29.139 Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Order of 14 June 1989 ICJ Rep 1989 29.147 Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 ICJ Rep 1988 16.15, 16.59, 29.147 Application for Review of Judgment No 158 of the United Nations Administrative Tribunal (Advisory Opinion) ICJ Rep 1973 6.16, 6.17, 6.19, 15.24, 29.111, 29.119, 29.208 Application for Review of Judgment No 273 of the United Nations Administrative Tribunal (Advisory Opinion) ICJ Rep 1981 29.111 Application for Review of Judgment No 273 of the United Nations Administrative Tribunal (Advisory Opinion) ICJ Rep 1982 29.116, 29.148, 29.208 Application for Review of Judgment No 333 of the United Nations Administrative Tribunal (Advisory Opinion) ICJ Rep 1987 29.111, 29.208(p. xxxiv) Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v Libyan Arab Jamahiriya) (Judgment) ICJ Rep 1985 (Continental Shelf Case) 29.26, 29.33 Application for Revision of the Judgment of 11 July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina) v Yugoslavia (Preliminary Objection) ICJ Rep 2003 8.66 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) ICJ Rep 1993 29.33 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) ICJ Rep 1996 29.23

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Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Further Requests for the Indication of Provisional Measures) ICJ Rep 1993 12.19, 12.31 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) ICJ Rep 2007 8.69, 13.50, 15.58, 22.38, 29.95, 29.282, 29.286, 29.298, 29.324, 29.325, 29.358, 29.370, 29.371, 29.378, 29.381, 29.385, 29.412, 29.444, 31.10, 31.63, 31.65 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) ICJ Rep 2007 29.349 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Preliminary Objections) (Judgment) ICJ Rep 1996 8.66, 29.95 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina v Yugoslavia (Serbia & Montenegro)) (Requests for Provisional Measures) ICJ Rep 1993 9.68 Application of the Convention on the Prevention and Punishment of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Provisional Measures, Order of 8 April 1993) ICJ Rep 1993 28.34 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Provisional Measures) Order of 13 September 1993 ICJ Rep 1993 29.25 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) ICJ Rep 2008 29.308 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (Preliminary Objections) (Judgment) ICJ Rep 2008 15.58 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) ICJ Rep 2012 29.290 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (Judgment) ICJ Rep 2015 29.95, 29.372, 29.393, 31.63, 31.64 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) (Request for the Indication of Provisional Measures) ICJ Rep 2008 22.138 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) (Jurisdiction) ICJ Rep 2011 28.39, 28.41, 28.53 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) ICJ Rep 2011 29.95, 29.282

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Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) (Preliminary Objections) (Judgment) ICJ Rep 2011 22.38, 22.191, 29.302, 31.64 Arbitral Award of 31 July 1985 (Guinea-Bissau v Senegal) ICJ Rep 1991 29.387 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda) (Verbatim Record, ICJ Doc CR 2000/1) 29.88 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Burundi) (Verbatim Record, ICJ Doc CR 2000/3) 29.88(p. xxxv) Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda) ICJ Rep 2001 29.32 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) ICJ Rep 2005 12.10, 13.50, 13.65, 22.38, 28.40, 29.57, 29.88, 29.282, 29.375, 29.376, 29.377, 29.378, 29.403, 31.63, 31.64 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda) (Judgment) ICJ Rep 2006 22.207, 29.32, 29.95, 29.429, 31.64 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) ICJ Rep 2002 16.24, 29.24, 29.25, 29.364, 31.64, 31.152 Asylum (Colombia/Peru), ICJ Rep 1951 28.34 Avena and Other Mexican Nationals ICJ Rep 2003 29.57 Avena and Other Mexican Nationals (Mexico v United States of America) ICJ Rep 2004 29.320 Barcelona Traction (New Application) ICJ Rep 1964 29.411 Border and Transborder Armed Actions (Nicaragua v Honduras) (Jurisdiction and Admissibility) ICJ Rep 1988 28.54, 29.95 Cameroon v Nigeria (Equatorial Guinea Intervening) ICJ Rep 2002 29.355 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) ICJ Rep 2016 29.30, 29.32, 29.33, 29.360 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) (Provisional Measures) Order of 8 March 2011, ICJ Rep 2011 29.95 Certain Criminal Proceedings in France (Republic of the Congo v France) ICJ Rep 2010 29.89 Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) ICJ Rep 1962 2.103, 2.105, 3.73, 26.05, 26.08, 26.85, 26.88, 26.89, 26.90, 26.94, 26.102, 27.04, 27.30, 27.42, 27.44, 27.45, 27.46, 28.21 Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) ICJ Rep 1962 6.23, 8.333, 9.09, 9.14, 9.15, 9.16, 9.17, 9.61, 9.64,

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9.67, 12.11, 12.12, 12.14, 12.21, 13.11, 14.02, 14.19, 14.47, 14.52, 14.61, 28.34, 29.126 Certain Phosphate Lands in Nauru (Nauru v Australia) ICJ Rep 1992 29.13 Certain Property (Liechtenstein v Germany) ICJ Rep 2005 29.23, 29.25, 29.32, 29.33, 29.429 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) ICJ Rep 2008 29.436 Competence of the General Assembly for the Admission of a State to the United Nations ICJ Rep 1950 29.147 Competence of the General Assembly for the Admission of a State to the United Nations (Advisory Opinion) ICJ Rep 1950 2.80, 2.81, 8.09, 8.34, 8.39 Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) ICJ Rep 1948 6.99, 29.119, 29.147 Conditions of Admission of a State to Membership in the United Nations (Article 4 of Charter) (Advisory Opinion) ICJ Rep 1948 8.09, 8.11, 8.14, 8.15, 12.18 Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization ICJ Rep 1960 7.39, 29.147 Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica) (Provisional Measures), Order of 22 November 2013, ICJ Rep 2016 29.360 Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica) ICJ Rep 2015 29.32, 29.95 Continental Shelf (Libyan Arab Jamahiriya/Malta) ICJ Rep 1985 29.90, 29.423 Continental Shelf (Tunisia/Libya) ICJ Rep 1982 29.364 Continental Shelf (Tunisia/Libyan Arab Jamahiriya) ICG Rep 1982 29.423 Corfu Channel Case (UK v Albania) ICJ Rep 1949 29.363, 31.61, 31.64 Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania) (Merits) (Judgment) ICJ Rep 1949 29.369, 29.371, 29.387, 29.393, 29.408, 29.412, 29.415, 29.444(p. xxxvi) Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) ICJ Rep 1999 5.53, 6.23, 9.61, 13.08, 13.11, 13.12, 13.39, 15.62, 16.26, 16.81, 16.84, 16.108, 22.38, 22.61, 29.56, 29.147 Dispute between Argentina and Chile concerning the Beagle Channel (1978) 17 ILM 634; (1985) 24 ILM 7 28.44 Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) ICJ Rep 2009 29.38, 29.89, 29.102 East Timor (Portugal v Australia) ICJ Rep 1995 12.11, 13.28

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Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (Advisory Opinion) ICJ Rep 1954 13.35, 14.19, 15.34, 15.56 Effect of Award of Compensation Made by the United Nations Administrative Tribunal ICJ Rep 1954 6.10, 6.16, 6.18, 6.23, 6.35, 29.157, 29.208 Effect of Awards of Compensation Made by the United National Administrative Tribunal (Second Phase) (Advisory Opinion) ICJ Rep 1954 9.06 Elettronica Sicula SpA (ELSI) (United States of America v Italy) ICJ Rep 1989 29.443 Fisheries Case (United Kingdom v Norway) ICJ Rep 1951 29.360 Fisheries Jurisdiction (Federal Republic of Germany v Iceland) (Jurisdiction) ICJ Rep 1973 29.75, 29.76 Fisheries Jurisdiction (Iceland v UK) ICJ Rep 1974 28.40 Fisheries Jurisdiction (Spain v Canada) ICJ Rep 1998 29.88, 29.453 Fisheries Jurisdiction (Spain v Canada) (Jurisdiction of the Court) (Judgment) ICJ Rep 1998 29.100 Fisheries Jurisdiction Case (Spain v Canada) (Jurisdiction and Preliminary Objections) ICJ Rep 1998 29.24 Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v Iceland) ICJ Rep 1973 29.75, 29.76 Fisheries Jurisdiction (United Kingdom v Iceland) (Merits) ICJ Rep 1974 29.76 Frontier Dispute (Benin v Niger) ICJ Rep 2005 29.298, 29.423 Frontier Dispute (Burkina Faso/Niger) ICJ Rep 2013 29.26, 29.30, 29.423, 29.439 Frontier Dispute (Burkina Faso/Republic of Mali) ICJ Rep 1986 29.25, 29.360, 29.367, 29.395, 29.443 Gabčikovo-Nagymaros Project (Hungary v Slovakia) ICJ Rep 1997 24.09, 28.40, 29.40, 29.48, 29.87, 29.352, 29.357, 29.390, 29.395, 29.413, 29.416, 29.418, 29.442, 29.453 Genocide Revision (Bosnia and Herzegovina v Yugoslavia) ICJ Rep 2003 29.364 Gulf of Maine Area (Canada/United States of America) ICJ Rep 1984 29.356, 29.391, 29.416 Haya de la Torre Case (Colombia v Peru) (Judgment of 13 June 1951) ICJ Rep 1951 29.86 Immunity from Legal Process ICJ Rep 1999 29.110 Indonesia/Malaysia ICJ Rep 2002 29.357 International Status of South West Africa ICJ Rep 1950 29.147, 29.157 International Status of South-West Africa (Advisory Opinion) ICJ Rep 1950 2.93, 4.21

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Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt ICJ Rep 1980 7.39 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) ICJ Rep 1980 9.32, 9.65, 11.16, 12.01, 13.32, 16.07, 29.110, 29.119, 29.147 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Advisory Opinion) ICJ Rep 1950 9.22, 28.36 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase (Advisory Opinion) ICJ Rep 1950 29.55, 29.125(p. xxxvii) Judgment No 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development ICJ Rep 2012 22.194, 29.147 Judgment No 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development (Advisory Opinion) ICJ Rep 2012 15.34, 29.113 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against UNESCO ICJ Rep 1956 7.39, 29.113, 29.147 Jurisdictional Immunities of the State (Germany v Italy; Greece intervening) ICJ Rep 2012 25.49 Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) (Judgment) ICJ Rep 2012 16.25 Kasikili/Sedudu Island (Botswana and Namibia) (Judgment) ICJ Rep 1999 12.10, 29.30, 29.90, 29.357, 29.360, 29.366, 29.400, 29.417, 29.443 LaGrand (Germany v United States of America) ICJ Rep 2001 29.320, 29.322, 29.445 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Composition of Chamber, Order of 13 December 1989, ICJ Rep 1989 29.36, 29.61, 29.454 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras, Nicaragua intervening) ICJ Rep 1992 29.90, 29.393, 29.416, 29.423, 29.441, 29.444 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria) ICJ Rep 1998 28.38, 28.54 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) ICJ Rep 2002 29.90, 29.319, 29.423 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) ICJ Rep 1971 3.53, 3.72, 3.76, 4.21, 5.12, 9.11, 12.07, 12.10, 12.12, 22.127, 28.35 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) ICJ Rep 1971 9.67, 10.52, 11.05, 29.53, 29.109, 29.126, 29.148

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Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Order of 29 January 1971, ICJ Rep 1971 29.53 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Order of 19 December 2003 ICJ Rep 2003 29.150 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory ICJ Rep 2004 2.12, 2.103, 2.104, 26.29, 29.147, 29.286, 29.328 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Rep 2004 2.99, 2.100, 8.83, 9.18, 9.67, 15.65, 22.38, 22.188, 28.08, 28.36, 29.55, 29.62, 29.108, 29.118, 29.119, 29.120, 29.121, 29.127, 29.141, 29.178, 29.328 Legality of the Threat or Use of Nuclear Weapons ICJ Rep 1996 24.09, 29.147 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) ICJ Rep 1996 15.65, 22.38, 25.03 Legality of the Use by a State of Nuclear Weapons in an Armed Conflict ICJ Rep 1996 7.39, 29.116, 29.119, 29.147 Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) ICJ Rep 1994 29.140 Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) ICJ Rep 1996 9.02, 9.03, 9.04, 9.67, 13.04, 29.159 Legality of the Use of Force Cases, Order of 2 June 1999, ICJ Rep 1999 29.358 Legality of the Use of Force Cases ICJ Rep 2004 12.11, 29.57, 29.78, 29.79, 29.80, 29.81, 29.84, 29.144(p. xxxviii) Legality of Use of Force (Serbia and Montenegro v Belgium), (Serbia and Montenegro v Canada), (Serbia and Montenegro v France), (Serbia and Montenegro v Germany), (Serbia and Montenegro v Italy), (Serbia and Montenegro v Netherlands), (Serbia and Montenegro v Portugal), (Yugoslavia v Spain), (Serbia and Montenegro v United Kingdom), (Yugoslavia v United States of America) ICJ Rep 2004 29.81, 29.82, 29.83, 29.84 Legality of the Force (Serbia and Montenegro v United Kingdom) (Preliminary Objections) (Judgment, 15 December 2004) ICJ Rep 2004 8.67, 8.68, 8.69 Maritime Boundary in the Black Sea (Romania v Ukraine) ICJ Rep 2009 29.26, 29.32, 29.89, 29.422, 29.423 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Jurisdiction and Admissibility) ICJ Rep 1994 29.363 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) ICJ Rep 2001 29.356, 29.363, 29.365, 29.366, 29.423 Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway), ICJ Rep 1993 28.38, 29.423

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Maritime Delimitation in the Caribbean Sea and Pacific Ocean (Costa Rica v Nicaragua) Order 31 May 2016 29.401 Maritime Delimitation in the Caribbean Sea and Pacific Ocean (Costa Rica v Nicaragua) Order 16 June 2016 29.402 Maritime Delimitation in the Indian Ocean (Somalia v Kenya) 29.33 Maritime Dispute (Peru v Chile) ICJ Rep 2014 29.89, 29.293, 29.423 Maritime Dispute (Peru v Chile) (Judgment) ICJ Rep 2014 29.95, 29.101 Maritime Dispute (Peru v Chile) (Preliminary Objections) ICJ Rep 2016 29.360 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) ICJ Rep 1986 12.10, 12.11, 12.12, 13.50, 29.33, 29.363, 29.387, 29.417 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Declaration of Intervention, Order of 4 October 1984, ICJ Rep 1984 29.86 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Jurisdiction and Admissibility) ICJ Rep 1984 28.34, 28.38, 28.54 Minquiers and Ecrechos (France/UK) ICJ Rep 1953 29.445 Navigational and Related Rights (Costa Rica v Nicaragua) (Judgment) ICJ Rep 2009 29.95 North Sea Continental Shelf (Federal Republic of Germany/Netherlands; Federal Republic of Germany/Denmark) ICJ Rep 1969 28.39, 28.40, 29.77, 29.145, 29.423 Northern Cameroon (Cameroon v United Kingdom) (Jurisdiction) ICJ Rep 1963 28.34 Nottebohm (Liechtenstein v Guatemala), Second Phase, ICJ Rep 1955 29.444 Nuclear Tests (Australia v France) (New Zealand v France) ICJ Rep 1974 28.34 Nuclear Weapons Advisory Opinion ICJ Rep 1996 29.135 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v United Kingdom) ICJ Rep 2016 29.95, 29.302 Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v United Kingdom) (Preliminary Objections), 5 October 2016 10.56 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v Chile) (Preliminary Objections) ICJ Rep 2015 29.95, 29.101 Oil Platforms (Islamic Republic of Iran v United States of America) ICJ Rep 2003 12.11, 29.288, 29.369

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Pulp Mills on the River Uruguay (Argentina v Uruguay), ICJ Rep 2010, 24.09, 28.39, 28.41, 29.178, 29.397, 29.417, 29.418, 29.419, 29.453(p. xxxix) Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v Colombia) 29.33 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America) (Provisional Measures, Order of 14 April 1992) ICJ Rep 1992 12.31, 28.34 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the aerial incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom) (Preliminary Objections) ICJ Rep 1998 9.68, 29.60, 29.64, 29.75 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America) ICJ Rep 1998 29.73, 29.75, 29.429, 29.443 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America) ICJ Rep 2003 29.73, 29.75 Reparation for Injuries suffered in the Service of the United Nations (Advisory Opinion) ICJ Rep 1949 9.02, 9.06, 9.08, 9.35, 11.09, 11.11, 11.12, 11.15, 11.16, 11.17, 11.18, 11.19, 11.22, 12.01, 12.24, 13.46, 13.47, 15.34, 15.63, 16.07, 16.25, 29.147 Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) ICJ Rep 1995 29.25, 29.49, 29.58, 29.86 Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v Peru) ICJ Rep 1950 29.59 Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v Thailand) ICJ Rep 2013 29.59 Request for Interpretation of the Judgment of 31 March 2004 (Mexico v United States of America) ICJ Rep 2008 29.324 Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v United States of America) (Mexico v United States of America) ICJ Rep 2009 29.322 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide ICJ Rep 1950 29.147 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) ICJ Rep 1951 15.58, 22.198 South West Africa (Ethiopia v South Africa; Liberia v South Africa) (Jurisdiction) ICJ Rep 1962 28.41 South West Africa, Order of 18 March 1965, ICJ Rep 1965 29.326

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South West Africa (Ethiopia v South Africa; Liberia v South Africa), Second Phase ICJ Rep 1966 22.127, 29.254, 29.413 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) ICJ Rep 2008 29.32, 29.321 Sovereignty over Pulau Ligitan and Palau Sipadan (Indonesia/Malaysia) ICJ Rep 2002 29.25, 29.32, 29.90 Territorial Dispute (Libya/Chad) ICJ Rep 1994 28.35, 28.54, 29.366 Territorial Dispute (Libyan Arab Jamahiriya/Chad) ICJ Rep 1994 29.423, 29.439, 29.443 Territorial and Maritime Dispute (Nicaragua v Colombia) ICJ Rep 2012 29.90, 29.360, 29.383, 29.423 Territorial and Maritime Dispute (Nicaragua v Colombia) (Jurisdiction) ICJ Rep 2007 28.54 Territorial and Maritime Dispute (Nicaragua v Colombia) (Preliminary Objections) (Judgment) ICJ Rep 2007 29.95 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras) ICJ Rep 2007 29.90, 29.346, 29.347, 29.351, 29.366, 29.422, 29.423(p. xl) Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras) (Judgment) ICJ Rep 2007 28.40, 29.90, 29.95, 29.101 United States Diplomatic and Consular Staff in Tehran (United States v Iran) ICJ Rep 1980 13.07, 16.33, 28.34 Vienna Convention on Consular Relations ICJ Rep 1998 29.57 Western Sahara (Advisory Opinion) ICJ Rep 1975 12.07, 28.36, 29.54, 29.105, 29.119, 29.123, 29.125, 29.126, 29.137, 29.138, 29.158 Whaling in the Antarctic (Australia v Japan), Declaration of Intervention of New Zealand, Order of 6 February 2013, ICJ Rep 2013 29.86 Whaling in the Antarctic (Australia v Japan; New Zealand intervening) (Judgment) ICJ Rep 2014 24.09, 29.95, 29.368, 29.373, 29.393, 29.397, 29.398, 29.399, 29.400, 29.417, 29.436

International Criminal Court Abu Garda (ICC-02/05-02/09), Decision on the Prosecutor’s Application under Article 58, 7 May 2009 31.72 Prosecutor v Bashir, Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-139, Pre-Trial Chamber I, 12 December 2011 31.152

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Prosecutor v Jean Pierre Bemba Gombo Judgment on the appeal of the Prosecutor against Pre-Trial Chamber II’s Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic, and the Republic of South Africa, Case No ICC-01/05-01/08, Appeals Chamber, 2 December 2009 31.89 Prosecutor v Uhuru Muigai Kenyatta, Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute, ICC-01/09-02/11, 3 December 2014 31.90 Situation in Georgia, ICC-01/15, Decision on the Prosecutor’s Request for Authorization of an Investigation (27 January 2016) 29.282

Permanent Court of International Justice (PCIJ) Chorzów Factory, re Indemnities, PCIJ, Series A, No 18, 1929 29.415 Customs Regime between Germany and Austria (Advisory Opinion) PCIJ, Series A/B, No 41, 287, 1931 29.69, 29.75 Factory at Chorzów, PCIJ, Series A, No 17, 1928 29.408 Free City of Danzig and the ILO, PCIJ, Series B, No 18, 1930 7.20 Free Zones of Upper Savoy and the District of Gex, PCIJ Order of 19 April 1929, Series A, No 22 28.38 Jurisdiction of the European Commission of the Danube between Galatz and Braila (Advisory Opinion), PCIJ, Series B, No 14, 1926 9.06 Mavromattis Palestine Concessions, PCIJ, Series A, No 2, 1924 28.02, 28.38, 28.39 Nationality Decrees in Tunisia and Morocco (Advisory Opinion) PCIJ, Series B, No 4, 1923 9.25 Railway Traffic between Lithuania and Poland, PCIJ, Series A/B, No 41, 1931 28.38 Status of Eastern Carelia, PCIJ, Series B, No 5, 1923 29.123

International Military Courts and Tribunals Bosnia and Herzegovina War Crimes Chamber Abduladhim Maktouf Case, AP-1785/06 (30 March 2007) 31.189

(p. xli) East Timor Special Panels for Serious Crimes Prosecutor v Sarmento & Mendonca, Decision on the defense (Domingos Mendonca) motion for the Court to order the Public Prosecutor to amend the indictment, Case No 18a/2001 31.180

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Extraordinary Chambers in the Courts of Cambodia Case 001 Judgment, Case File/Dossier No 001/18-07-2007/ECCC/TC, Document No E188, 26 July 2010, Trial Chamber 31.137 Case 002/01 Judgment, Case File No 002/19-09-2007/ECCC/TC, Document No E313, 07 August 2014, Trial Chamber 31.135, 31.137 Closing Order (Indictment), Case 002/02, Case No 002/19-09-2007-ECCC-OCIJ, Office of the Co-investigating Judges, 15 September 2010 31.132 Considerations of the Pre-Trial Chamber Regarding the Disagreement Between the Co-Prosecutors Pursuant to Internal Rule 71, Disagreement No 001/18-11-2008ECCC/PTC (18 August 2009, Public Redacted Version) 31.130 Decision on Additional Severance of Case 002 and Scope of Case 002/02, Case No 002/19-09-2007-ECCCITC, Trial Chamber, 4 April 2014 31.132 Notice of Conclusion of Judicial Investigation against Meas Muth, Case File No 003/07-09-2009-ECCC-OCIJ, Document No D225, The Co-investigating Judges, 10 January 2017 31.135 Order for severance of IM Chaem for case 004, Case File No 004/07-09-2009-ECCCOCIJ, Document No D 286/7, The Co-investigating Judges, 05 February 2016 31.135 Order for Severance of Ao An from Case 004, Case File No 004/07-09-2009-ECCCOCIJ, Document No D334/1, The Co-investigating Judges, 16 December 2016 31.135

International Criminal Tribunal for Rwanda Barayagwiza v The Prosecutor, Decision on Prosecutor’s Request for Review or Reconsideration, ICTR-97-19-AR72, 31 March 2000 31.33 Prosecutor v Akayesu, Jean-Paul, ICTR update (1998), ICTR/UPD/005 16.93 Prosecutor v Bagaragaza, ICTR-2005-86-R11bis, Decision on the Prosecution Motion for Referral to the Kingdom of Norway (19 May 2006) 31.37 Prosecutor v Bagaragaza, ICTR-2005-86-AR11bis, Decision on Rule 11bis Appeal (30 August 2006) 31.37 Prosecutor v Bagaragaza, ICTR-2005-86-11bis, Decision on Prosecutor’s Extremely Urgent Motion for Revocation of the Referral to the Kingdom of the Netherlands pursuant to Rule 11bis(F)&(G) (17 August 2007) 31.37 Prosecutor v Bucyibaruta, Laurent, ICTR-2005-85-I, Decision on Prosecutor’s Request for Referral of Laurent Bucyibaruta’s Indictment to France, 20 November 2007 31.38 Prosecutor v Gatete, ICTR-2000-61-R11bis, Decision on Prosecutor’s Request for Referral to the Republic of Rwanda (17 November 2008) 31.37 Prosecutor v Hategekimana, ICTR-00-55B-R11bis, Decision on the Prosecution’s Appeal Against Decision on Referral under Rule 11bis (4 December 2008) 31.37

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Prosecutor v Kanyabashi, ICTR-96-15-T, Decision on the Defence Motion on Jurisdiction (18 June 1997) 31.25 Prosecutor v Kanyarukiga, ICTR-2002-78-R11bis, Decision on the Prosecution’s Appeal against Decision on Referral under Rule 11bis (30 October 2008) 31.37 Prosecutor v Karemara, ICTR-98-44-AR15bis.2, Decision on Interlocutory Appeals regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material (28 September 2004 and 22 October 2004) 31.28 Prosecutor v Kayishema and Ruzindana, ICTR-95-1-A, Judgment, 1 June 2001 31.27 Prosecutor v Lubanga Dyilo, Thomas, Case No ICC-01/04-01/06, Decision on the Confirmation of Charges (29 January 2007) 31.65 Prosecutor v Munyagishari, Bernard, ICTR-2005-89-R11bis, Decision on the Prosecutor’s Request for Referral of the Case to the Republic of Rwanda 31.37 Prosecutor v Munyakazi, ICTR-97-36-R11bis, Decision on the Prosecution’s Appeal against Decision on Referral under Rule 11bis (8 October 2008) 31.37(p. xlii) Prosecutor v Nahimana et al, ICTR-99-52-T, Judgment (3 December 2003) 31.32 Prosecutor v Ngeze et al, ICTR-96-11-AR72, Separate Opinion of Judge Shahabuddeen (5 September 2000) 31.32 Prosecutor v Nyiramasuhuko, ICTR-98-42-T, Decision in the Matter of Proceedings under Rule 15bis(D) (15 July 2003) 31.28 Prosecutor v Nyiramasuhuko, ICTR-98-42-T, Decision in the Matter of Proceedings under Rule 15bis(D), ICTR-98-42-A15bis (24 September 2003) 31.28 Prosecutor v Nyiramasuhuko et al, ICTR-98-42-A15bis, Decision in the Matter of Proceedings Under Rule 15bis(D), Dissenting Opinion of Judge David Hunt (24 September 2003) 31.40 Prosecutor v Wenceslas Munyeshyaka, ICTR-2005-87-I, Decision on Prosecutor’s Request for the Referral of Wenceslas Munyeshyaka’s Indictment to France, 20 November 2007 31.37 Zigiranyirazo v The Prosecutor, ICTR-2001-01-073, Decision on Protais Zigiranyirazo’s Motion for Damages, 18 June 2012 31.32

International Criminal Tribunal of the Former Yugoslavia Décision relative à la requite de l’accusation aux fins de communication à l’avance de l’identité des témoins à décharge, Delalić et al (ICTY TC: IT-96-31-T, 4 February 1998) 31.156 Hartmann, In the Case against Florence IT-02-54-R77.5, Judgment on Allegations of Contempt (14 September 2009) 31.13 Hartmann, In the Case against Florence IT-02-54-R77.5-A, Judgment (19 July 2011) 31.13

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Hartmann, In the Case against Florence IT-02-54-R77.5-A, Second Order on Payment of Fine Pursuant to Rule 77bis and Warrant of Arrest (16 November 2011) 31.13 Prosecutor v Blaškić, IT-95-14A, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997 (29 October 1997) 31.10 Prosecutor v Boskoski et al, IT-04-82-PT, Decision on Johan Tarculovksi’s Motion Challenging Jurisdiction (1 June 2005) 31.09 Prosecutor v Milosević, Dissenting Opinion of Judge David Hunt on Admissibility of Evidence in Chief in the Form of Written Statement, IT-02-54-AR73.4 (21 October 2003; majority decision of 30 September 2003) 31.19, 31.40 Prosecutor v Milosević, Separate Opinion of Judge Shahabuddeen Appended to Appeals Chamber’s Decision Dated 30 September 2003 on Admissibility of Evidencein-Chief in the Form of Witness Statements, IT-02-54-AR73.4 (31 October 2003; majority decision of 30 September 2003) 31.19, 31.40 Prosecutor v Milutinović and others (Jurisdiction) ICTY-99-37-PT (6 May 2003) 26.66 Prosecutor v Seselj, IT-03-67-T, Decision on Defence Motion for Disqualification of Judge Frederic Harhoff and Report to the Vice-President, 28 August 2013 31.08 Prosecutor v Stanišić and Simatović, IT-03-69-A, Appeal Judgment, 9 December 2015 31.20 Prosecutor v Stanišić and Simatović, MICT-15-96-PT, Order Assigning Judges to a Case before a Trial Chamber, 17 December 2015 31.20 Prosecutor v Tadić, 10 August 1995, Trial Chamber II, para 42 and Appeals Chamber, 2 October 1995 31.49 Prosecutor v Tadić, Case No IT-94-1-AR72, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, (1996) 35 ILM 32 9.03, 9.06, 9.15, 12.18, 13.50, 26.57, 26.61, 26.63, 26.66, 26.68, 26.71, 26.91, 27.23, 27.33, 27.35, 27.36, 31.02, 31.09 Tadić Case (Prosecutor v Tadić), Case No IT-94-1-A, Appeals Chamber, ICTY, Judgment of 15 July 1999 13.50, 29.283, 29.287 Prosecutor v Tadić, IT-94-1-A-R77, Judgment on Allegations of Contempt against Prior Counsel, Milan Vujin (31 January 2000) 31.13

Special Court for Sierra Leone (SCSL) Independent Counsel v Brima Samura, Case No SCSL-2005-01, Judgment in Contempt Proceedings, 26 October 2005 31.112 Prosecutor v Brima, Kamara and Kanu, SCSL-2004-16-T, Judgment (20 June 2007) 31.109, 31.112(p. xliii) Prosecutor v Brima, Kamara and Kanu, SCSL-2004-16-A, Judgment (22 February 2008) 31.109, 31.112

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Prosecutor v Brima, Kamara and Kanu, SCSL-2004-16-T, Sentencing Judgment (19 July 2007) 31.112 Prosecutor v Fofana, SCSL-04-14-PT, Decision on the Preliminary Defence Motion on the lack of Personal Jurisdiction on behalf of Accused Fofana (3 March 2004) 31.109 Prosecutor v Fofana and Kondewa, SCSL-04-14-T, Judgment (2 August 2007) 31.112 Prosecutor v Fofana and Kondewa, SCSL-04-14-T, Judgment on the Sentencing of Moinina Fofana and Allieu Kondewa (9 October 2007) 31.112 Prosecutor v Fofana and Kondewa, SCSL-04-14-A, Judgment (28 May 2008) 31.109, 31.112 Prosecutor v Fofana and Kondewa, SCSL-04-14-ES-836, Decision of the President on Application for Conditional Early Release, 11 August 2014 31.123 Prosecutor v Gbao, SCSL-2003-09-PT, Decision on the Request by the Truth and Reconciliation Commission of Sierra Leone to Conduct a Public Hearing with Augustine Gbao (3 November 2003) 31.115 Prosecutor v Gbao, SCSL-04-15-PT, Decision on Appeal by the Truth and Reconciliation Commission (‘TRC’) and Accused against the Decision of Judge Bankole Thompson delivered on 3 November 2003 to Deny the TRC’s Request to hold a Public Hearing with Augustine Gbao (7 May 2004) 31.115 Prosecutor v Kallon and Kamara, SCSL-04-15-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty (13 March 2004) 31.110 Prosecutor v Kallon, Norman and Kamara, SCSL-2004-15-AR72(E), SCSL-2004-14AR72(E), and SCSL-2004-15-AR72(E), Decision on Constitutionality and Lack of Jurisdiction (13 March 2004) 31.98 Proescutor v Kondewa, SCSL-04-14-AR72(E), Decision on Lack of Jurisdiction/Abuse of Process: Amnesty Provided by the Lomé Accord 31.110 Prosecutor v Norman, SCSL-2003-08-PT, Decision on the Request by the Truth and Reconciliation Commission of Sierra Leone to Conduct a Public Hearing with Samuel Hinga Norman (29 October 2003) 31.115 Prosecutor v Norman, SCSL-2003-08-PT, Decision on Appeal by the Truth and Reconciliation Commission for Sierra Leone (‘TRC’ or ‘the Commission’) and Chief Samuel Hinga Norman JP against the Decision of His Lordship, Mr Justice Bankole Thompson delivered on 30 October 2003 to Deny the TRC’s Request to Hold a Public Hearing with Chief Samuel Hinga Norman JP (28 November 2003) 31.115 Prosecutor v Norman, SCSL-2004-14-AR72(E), Decision on Preliminary Motion based on Lack of Jurisdiction (Judicial Independence) (13 March 2004) 31.117 Prosecutor v Norman, SCSL-2004-14, Decision on the Motion to Recuse Judge Winter from the Deliberation in the Preliminary Motion on the Recruitment of Child Soldiers (28 May 2004) 31.105

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Prosecutor v Sesay, SCSL-2004-15-AR15, Decision on Defence Motion Seeking the Disqualification of Justice Robertson from the Appeals Chamber (13 March 2004) 31.105 Prosecutor v Sesay, Kallon and Gbao, SCSL-04-15-T, Decision on Sesay and Gbao Motion for Voluntary Withdrawal or Disqualification of Hon Justice Bankole Thompson from the RUF Case (6 December 2007) 31.105 Prosecutor v Sesay, Kallon and Gbao, Judgment, SCSL-04-15-T (2 March 2009) 31.104, 31.112 Prosecutor v Sesay, Kallon and Gbao, SCSL-04-15-T, Sentencing Judgment (8 April 2009) 31.112, 31.116 Prosecutor v Sesay, Kallon and Gbao, SCSL-04-15-A, Judgment (26 October 2009) 31.112 Prosecutor v Taylor, SCSL-2003-01-I, Decision on Immunity from Jurisdiction (31 May 2004) 31.99, 31.110 Prosecutor v Taylor, SCSL-2003-01-R72, Decision on Urgent Defence Motion against Change of Venue (29 May 2006) 31.103 Prosecutor v Taylor, SCSL-03-01-PT, Endorsement Pursuant to Rule 64 (19 June 2006) 31.103 Prosecutor v Taylor, SCSL-03-01-PT, Order Changing Venue of Proceedings (19 June 2006) 31.103(p. xliv) Prosecutor v Taylor, SCSL-2003-01-PT (Decision of the President on Defence Motion for Reconsideration of Order Changing Venue of Proceedings) 12 March 2007 31.103 Prosecutor v Taylor, SCSL-03-1-PT, Order Designating Alternate Judge (18 May 2007) 31.105 Prosecutor v Taylor, SCSL-03-01-T, Subpoena ad Testificandum, 1 July 2010 31.114 Prosecutor v Taylor, SCSL-03-01-T, Judgment (18 May 2012) 31.112 Prosecutor v Taylor, SCSL-03-01-T, Sentencing Judgment (30 May 2012) 31.112, 31.116 Prosecutor v Taylor, SCSL-03-01-A, Decision on Charles Ghankay Taylor’s Motion for Partial Voluntary Withdrawal or Disqualification of Appeals Chamber Judges (13 September 2012) 31.105 Prosecutor v Taylor, SCSL-03-01-A, Judgment (26 September 2013) 31.112 Taylor, In the matter of Charles Ghankay SCSL-03-10-ES, Decision on Public with Public and Confidential Annexes Charles Ghankay Taylor’s Motion for Termination of Enforcement of Sentence in the United Kingdom and for Transfer to Rwanda, 30 January 2015 31.123

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Special Tribunal for Lebanon Case No STL-11-02/CCS/PTJ, Pre-Trial Judge, 5 August 2011 31.150 Case No STL-11-02, Pre-Trial Judge, 19 August 2011 31.150 Case against New TV SAL Karma Mohamed Tahsin Al Khayat, ‘Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings’, Case No STL-14-05/PT/AP/ARI26.1, Appeals Panel, 2 October 2014 31.151 Connected cases, Hamadeh, Hawi and El-Murr (STL-11-02) 31.159 Decision on Appeal of Pre-Trial Judge’s Order Regarding Jurisdiction and Standing, CH/AC.2010/02, 10 November 2010 31.151 Decision on the Prosecutor’s Connected Case Submission of 30 June 2011, Case No STL-11-02/CCS/PTJ, Pre-Trial Judge, 5 August 2011 31.159 Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Case No STL-11-01/I/AC/R176bis, Appeals Chamber, 16 February 2011 31.140, 31.142, 31.153 Order Directing the Lebanese Judicial Authority Seized with the Case Concerning the Attack Perpetrated against Mr George Hawi on 21 June 2005 to Defer to the Special Tribunal for Lebanon, Case No STL-11-02, Pre-Trial Judge, 19 August 2011 31.155 Prosecutor v Ayyash et al, ‘Decision Relating to the Examination of the Indictment of 10 June 2011 Issued against Mr Salim Jamil Ayyash, Mr Mustafa Amine Badreddine, Mr Hussein Hassan Oneissi & Mr Assad Hassan Sabra’, Case No STL-11-01/PTJ, PreTrial Judge, 28 June 2011 31.159 Prosecutor v Ayyash et al, ‘Decision to hold trial in absentia’, Case No STL-11-01/I/TC, Trial Chamber, 1 February 2012 31.157 Prosecutor v Ayyash et al, Case No STL-11-01/PT/TC, Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal, 27 July 2012 31.141, 31.142 Prosecutor v Ayyash et al, Case No STL-11-01/PT/AC/AR90.1, Decision on the Defence Appeals Against the Trial Chamber’s ‘Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal’, Appeals Chamber, 24 October 2012 31.142 Prosecutor v Salim Jamil Ayyash et al, Case No. STL-11-01/PT lTC, ‘Corrected Version of “Orders Relating to Five Defence Motions for Orders to Lebanon on State Cooperation” of 16 December 2013’, Trial Chamber, 24 December 2013 31.149 Prosecutor v Ayyash et al, Case No STL-11-01/T/TC, Directions on the Conduct of the Proceedings, Trial Chamber, 16 January 2014 31.156 Prosecutor v Ayyash et al, ‘Decision on Trial Management and Reasons for Decision on Joinder’, Case No STL-11-01/T/TC, Trial Chamber, 25 February 2014 31.159 Prosecutor v Ayyash et al, Case No STL-11-01/AC/AR126.11, ‘Decision on Badreddine Defence Interlocutory Appeal of the “Interim Decision on the Death of Mr Mustafa

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Amine Badreddine and Possible Termination of Proceedings”’, Appeals Chamber, 11 July 2016 31.159(p. xlv) Prosecutor v Ayyash et al, ‘Agreements as to Evidence Between the Prosecution and Defence of Hassan Habib Merhi and Correction to Tables of Decision of 16 September 2016’, Case No STL-11-01, Trial Chamber, 6 October 2016 31.157 Prosecutor v Hassan Habib Merhi, ‘Public Redacted Version of the Decision Relating to the Examination of the Indictment of 5 June 2013 against Mr Hassan Habib Merhi’, Case No STL-13-04/I/PTJ, Pre-Trial Judge, 11 October 2013 31.159

Regional Courts European Court of Human Rights Al-Adsani v the United Kingdom, App no 35763/97 (ECHR, 21 November 2001) 16.28 Al-Dulimi and Montana Management Inc v Switzerland, App no 5809/08 (ECHR (Grand Chamber), 21 June 2016) 9.69, 12.33 Al-Dulimi and Montana Management Inc v Switzerland, App no 5809/08 (ECHR (Grand Chamber), July 2016) 9.16 Al-Jedda v United Kingdom [2009] ECHR 408 13.50 Al-Jedda v United Kingdom, App no 27021/08 (ECHR, 7 July 2011) 6.21, 9.16, 9.69, 12.19, 12.20, 12.33 Beer and Regan v Germany and Waite and Kennedy v Germany App nos 26083/94 and 28934/95 (ECHR 18 February 1999) 16.32 Behrami and Behrami v France; Saramati v France, Germany and Norway App nos 71412 and 78166/01 (ECHR, 2 May 2007) 6.21, 13.23, 13.51, 16.27 Belilos v Switzerland [1988] ECHR 4 (29 April 1988) 22.203 Beric v Bosnia and Herzegovina App no 36357/04 (ECHR, 16 October 2007) 13.23, 13.51 Bosphorus Hava Yollary Turizm ve Ticaret Anonim Sirketi v Ireland ECHR 2005-VI, [2005] ECHR 440 13.17 Case of Maktouf and Damjanović v Bosnia And Herzegovina, App nos 2312/08 and 34179/08 (ECtHR, 18 July 2013) 31.189 Gajic v Germany App no 31446/02 (ECHR, 28 August 2008) 13.23, 13.51 Gasparini v Italy and Belgium App no 10750/03 (ECHR, 12 May 2009) 31.17 Georgia v Russia (No II) App no 38263/08 29.283 Golder Case, ECHR, Series A, No 18, 1975 16.31 Iglesias Gil and AUI v Spain, App no 56673/00 (ECHR, 29 April 2003) 29.286

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Kasumaj v Greece App no 6974/05 (As to the admissibility of App no 6974/05) (ECHR, 5 July 2007) 13.51, 16.91 Loizidou v Turkey [1995] ECHR 10 (23 March 1995) 22.203 Lopez Cifuentes v Spain App no 18754/06 (ECHR, 7 July 2009) 16.32 Nada v Switzerland, App no 10593/08 (ECHR (Grand Chamber), 12 September 2012) 9.69, 9.70, 12.20, 12.33, 13.20 Stichting Mothers of Srebrenica and Others v The Netherlands App no 65542/12 (ECHR, 11 June 2013) 16.27, 16.32 Streletz, Kessler, and Krenz v Germany App nos 34044/96, 44801/98 (ECHR, 22 March 2001) 29.286 Waite and Kennedy v Germany ECHR 1999-I 13.17

European Court of Justice Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351 (Kadi I, ECJ) 12.33, 13.20, 26.75, 29.285 Case C-399/06 P Hassan v Council and Commission [2009] ECR I-11393 29.285 Case C-403/06 P Ayadi v Council [2009] ECR I-11393 29.285 Joined Cases C 584/10 P, C 593/10 P, and C 595/10 P Commission and Others v Kadi (Kadi II) (CJEU, 18 July 2013) 9.69, 9.70, 12.33, 13.20, 22.37, 26.75 Case T-315/01 Yassin Abdullah Kadi v Council of the EU and Commission of the European Communities [2005] ECR II-3649 (CFI, 21 September 2005) (Kadi I, CFI) 12.19, 26.75(p. xlvi) Case T-318/01 Othaman v Council and Commission [2009] ECR II-162 29.285 Case T-85/09 Kadi v Commission [2010] ECR II-5177 (Kadi II GCEU) 26.75, 29.285 Case T-512/12 Frente Polisario v Council (2015), nyr 29.285

Inter-American Court of Human Rights (IACtHR) Series A, Judgments and Opinions, No 3, Advisory Opinion OC-3/83, 8 September 1983 22.203

International Arbitral Awards Air Transport Agreement of 27 March 1946 (US v France) 1963 XVI RIAA 81 28.51 Alabama Claims, The (US v UK) (1898) XXXIX RIAA 125 28.51 Arbitration between the Republic of Croatia and the Republic of Slovenia, PCA, Case No 2012–04, Partial Award of 30 June 2016 28.51

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Arbitration for the Brčko Area (Federation of Bosnia and Herzegovina v Republika Srpska), Award of 14 February 1997, UN Doc S/1997/126, and Final Award of 5 March 1999, (1999) 38 ILM 539 28.51 Award in the Arbitration regarding the Delimitation of the Maritime Boundary between Guyana and Suriname, Award of 17 September 2007 (2008) 37 ILM 164, (2007) XXX RIAA 1 28.51 Case concerning the Location of Boundary Markers in Taba between Egypt and Israel (1988) 80 ILR 224, (2006) XX RIAA 45 28.51 Dispute between Argentina and Chile concerning the Beagle Channel (1978) 17 ILM 634; (1985) 24 ILM 7 28.45 European Molecular Laboratory Arbitration (EMBL v Germany) (1990) 105 ILR 1 16.22, 16.45 Eritrea Ethiopia Claims Commission (2009) XXVI RIAA 631 28.51 Eritrea v Yemen, Award on Territorial Sovereignty and Scope of the Dispute (2001) 40 ILM 900 28.51 German External Debts (Greece v Germany) (1972) XIX UNRIAA 27 28.39 Government of Sudan/The Sudan People’s Liberation Movement/Army (Abyei Arbitration) (2009) 48 ILM 1254, (2012) XXX RIAA 145 28.51 Iron Rhine Railway case (Belgium v Netherlands) (2005) XXVII RIAA 35 28.51 Island of Palmas, The (1928) II IRAA 830 28.49 Kuwait v American Independent Oil Company (1982) 21 ILM 976 18.03 Lake Lanoux Arbitration (France v Spain) XII RIAA 281; 24 ILR 101 28.39, 28.51 OSPAR (Article 9) case (Ireland v UK) (2003) XXIII RIAA 59 28.51 Rainbow Warrior case (1986) XIX RIAA 199 and (1990) XX RIAA 215 28.51, 28.77 Texaco Overseas Petroleum Company/California Asiatic Oil Company v Government of Libyan Arab Republic (1978) 17 ILM 1 18.03 Trail Smelter Arbitration (US v Canada) III RIAA 1907 28.51

Permanent Court of Arbitration Arbitration Between the Republic of Croatia and the Republic of Slovenia, PCA, Case No 2012–04 25.51 Railway Traffic between Lithuania and Poland, PCIJ, Series A/B, No 41, 1931 28.39 Republic of Mauritius, The v The United Kingdom of Great Britain and Northern Ireland (Reasoned Decision on Challenge) 30 November 2011 29.334

International Tribunals

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International Tribunal on the Law of the Sea Advisory Opinion on the Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area, ITLOS Rep 2011 28.52(p. xlvii) Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore) (Provisional Measures) ITLOS, Order of 8 October 2003 28.39 Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), ITLOS Rep 2012 28.52 Dispute concerning Delimitation in the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), ITLOS Rep 2017 28.52 Dispute concerning Delimitation in the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), ITLOS Rep 2017 28.52 MV Saiga (No 2) (Merits) Judgment, ITLOS Rep 1999 29.286 Sea-Bed Disputes Chamber Advisory Opinion on the Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area, ITLOS Rep 2011 28.51

United Nations Human Rights Committee Kennedy v Trinidad and Tobago, Comm No 845/1999 (HRC, 2 November 1999) 22.202

United Nations Administrative Tribunal Rangel v Registrar of the International Court of Justice, Judgment No 2015-UNAT-535 29.214

United Nations Mechanism for International Criminal Tribunals Hartmann, In the Case against Florence MICT-15-87-ES, Registry Notification of Arrest, 29 March 2016 31.13 Hartmann, In the Case against Florence MICT-15-87-ES, Decision of the President on the Early Release of Florence Hartmann, 29 March 2016 31.13 Munyarugarama v Prosecutor, MICT-12-09-AR14, Decision on Appeal Against the Referral of Phénéas Munyarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012 31.22, 31.43 Prosecutor v Ngirabatware, ‘Order to the Government of the Republic of Turkey For the Release of Judge Aydin Sefa Akay’, MICT-12-29-R, 31 January 2017 16.78

United Nations Mission in Kosovo Human Rights Advisory Panel Case no 308/09, Milorad Rajovic v UNMIK, Human Rights Advisory Panel (2013) 16.91

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NM and Others v UNMIK, Case No 26/08, 26 February 2016 13.01

United Nations Secretary General Ruling Rainbow Warrior (New Zealand v France) (1986) 74 ILR 241 28.24

United Nations Working Group on Arbitrary Detention Arredondo Guevara v Peru, E/CN.4/2001/14/Add.1 (2000) 22.64

National Courts Argentina Bergaveche v United Nations Information Centre (Camara Nacional de Apelaciones del Trabajo de la Capital Federal, Argentina, 1958) 16.27

Austria Company Baumeister Ing Richard L v O, Final appeal/cassation, 10 Ob 53/04y, ILDC 362 (AT 2004) H2 16.27

(p. xlviii) Belgium League of Arab States, Re, League of Arab States v TM (Appeal Judgment) ILDC 42 (BE 2001) 16.13 M v UN and Belgium (1969) 69 ILR 139 (Court of Appeal, Brussels), Belgium 1969 16.20, 16.27, 16.32 Makeshimana-Ngulinzira and others v Belgian State and others (Unreported) 13.52 Manderlier v United Nations and Belgian State [1966] UN Juridical YB 283; [1969] UN Juridical YB 236–7 16.18 United Nations v B Tribunal Civil of Brussels, 27 March 1952, 19 ILR 490 9.57

Brazil Espólio de Rogério Tristão Rodrigues v União (PGU) and Organização das Nações Unidas (ONU) / Programa das Nações Unidas para o Desenvolvimento (PNUD), TSTRR-94200-84.2003.5.10.0003, 27 October 2010 16.27

Canada Amaratunga v Northwest Atlantic Fisheries Organization (2013) SCC 66 16.13 Reference re Secession of Quebec (1998) 115 ILR 536 19.02 Trempe v Staff Association of the International Civil Aviation Authority and ors, Judgment on jurisdiction, 2003 CanLII 44121, ILDC 1748 (CA 2003), H10 16.27

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Denmark Investment & Finance Company of 11 January 1984 Limited (Investerings- & Finansieringsselskabet af 11/1 1984 ApS) v UNICEF [United Nations Children’s Fund], First Instance, Case No U 2000 478 Ø, ILDC 64 (DK, High Court for Eastern Denmark, 1999), 26 August 1999 16.27

East Timor Armando dos Santos, Case No 16/2001, Court of Appeal 15 July 2003 31.180

Egypt Awad Iskandar Guirgis v UNRWA Representative (Cairo Court of First Instance, Dept 23—Labour Tribunal) 11.37, 16.27

France ECOWAS v BCCI (1993) 113 ILR 473 (Court of Appeal of Paris, France) 16.13 Judgment by the Tribunal Correctionnel de la Seine from 18 February 1954 9.57

Germany ESOC Official Immunity Case (1973) 73 ILR 683 (Federal Labour Court, FR Germany) 16.13 X et al v European School Munich II (Bavarian Administrative Court, Germany, 1995) 16.13

Israel Mahalwas v United Nations Truce Supervision Organization and Attorney General (intervening), Appeal Decision, PLA 3093/07, ILDC 1070 (IL, District Court, 2007) 16.27

Italy Branno v Ministry of War (1954) 22 ILR 756 (Court of Cassation, Italy) 16.13 Drago v International Plant Genetic Resources Institute (IPGRI) ILDC 827 (IT 2007) (Supreme Court of Cassation) 16.13 Drago v International Plant Genetic Resources Institute (IPGRI), Final Appeal Judgment, Case No 3718 16.27(p. xlix) FAO v Colagrossi, (1992) 101 ILR 386 16.27 Giustizia Civile Massimario, 2007, 2, ILDC 827 (IT 2007), H1-H5 16.27 ICEM v Chiti [1976] Italian YIL 350 16.27 ICEM v Di Banella Schirone (1978) 77 ILR 575 16.27

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International Institute of Agriculture v Profili (1930) 5 ILR 413 (Court of Appeal, Italy) 16.13

Kenya Killeen v International Centre of Insect Physiology and Ecology, First instance, Civil Case 1737 of 2002, ILDC 77 (KE, High Court, 2005) H1-2 16.27 Tononoka Steels Limited v Eastern and Southern Africa Trade and Development Bank, Appeal judgment, Civil Appeal No 255 of 1998, ILDC 1283 (KE 1999) H4-H5 16.27

Malaysia Bank Bumiputra Malaysia BHD v International Tin Council (1987) 80 ILR 24 (High Court, Malaysia) 16.13

Netherlands EPO case, X v European Patent Organization, Final appeal judgment, Case No 08/00118, LJ BI9632, ILDC 1464 (NL, Supreme Court, 2009) 16.27 Euratom Case, Greenpeace Nederland and Procurator General at the Supreme Court of the Netherlands (intervening) v Euratom, Judgment on Appeal in Cassation, Decision No LJN: BA9173, RvdW (2007) No 992, NJ 2008, 147, ILDC 838 (NL, Supreme Court, 2007), H1-H2 16.27 Foundation Mothers of Srebrenica et al v the Netherlands and the United Nations, District Court The Hague, Case no 295247, judgment of 10 July 2008 15.63 Iran-United States Claims Tribunal v AS (1985) 96 ILR 321, 329 (Dutch Supreme Court 16.13 Mothers of Srebrenica v The Netherlands and the United Nations, 295247/HA ZA 07-2973 (District Court of the Hague, 2008) 16.20, 16.27 Netherlands v Hasan Nuhanovic, Supreme Court, First Chamber, 6 September 2013, 12/03324 13.52 Restaurant De La Tour v EPO, 356198/KG ZA 10–11 (2010) (District Court of the Hague) 16.27 Stichting Mothers of Srebrenica v The Netherlands and the United Nations, Appeal Court of The Hague, 30 March 2010 13.29, 16.07, 16.20, 16.27 Stichting Mothers of Srebrenica et al v State of The Netherlands and the United Nations, Supreme Court of The Netherlands, Case no 10/04437, 13 April 2012 13.29, 16.05, 16.07, 16.18, 16.20, 16.27

Sierra Leone Sesay, Kondewa and Fofana v The President of the Special Court, The Registrar of the Special Court, The Prosecutor of the Special Court and The Attorney General and Minister of Justice, Supreme Court of Sierra Leone, SC No 1/2003 (Judgment of 14 October 2005) 31.99

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South Africa Government of the Republic of South Africa et al v Grootboom et al, Case CCT 11/00, 4 October 2000 (Constitutional Court of South Africa) 22.194

Switzerland B v M, Switzerland, Federal Tribunal, 2 July 1959 16.52 Case 130 III 430, Swiss Federal Tribunal, 2004 16.57 Nada, Youssef v State Secretariat for Economic Affairs and Federal Department of Economic Affairs, Administrative Appeal Judgment, Case No 1A 45/2007, Switzerland, Federal Tribunal, 14 November 2007, 133 BGE II 450; ILDC 461 (CH2007) 26.75(p. l) NML Capital Ltd and EM Limited v Bank for International Settlements and Debt Enforcement Office Basel-Stadt, Final appeal judgment, No 5A 360/2010, BGE 136 III 379 (partial), ILDC 1547 (CH, Swiss Federal Tribunal, 2010) 16.27 Poncet, In re (Federal Tribunal, Switzerland, 1948) 16.27 ZM v Permanent Delegation of the League of Arab States to the UN (1993) 116 ILR 643 (Labour Court of Geneva, Switzerland) 16.13

United Kingdom A-G v Nissan [1960] 1 All ER 649 11.11 Arab Banking Corporation v International Tin Council (1986) 77 ILR 1 (HC) 16.29 Arab Monetary Fund v Hashim (No 3) [1991] 2 AC 114, [1990] 2 All ER 769, [1990] 3 WLR 139 16.14 Arab Monetary Fund v Hashim (No 3) [1991] 1 All ER 871 (HL) 16.14 Arab Monetary Fund v Hashim and Other (No 3) [1990] 2 WLR 729 11.29 Her Majesty’s Treasury v Ahmed [2010] UKSC 2 13.20 Australia & New Zealand Banking Group Ltd and Others v Commonwealth of Australia and 23 Others; Amalgamated Metal Trading Ltd and Others v Department of Trade and Industry and Others; Maclaine Watson & Co Ltd v Department of Trade and Industry; Maclaine Watson & Co Ltd v International Tin Council (1990) 29 ILM 675 13.27 International Tin Council (The Receivership Action) [1988] All ER 257, (1988) 80 ILR 191 (CA) 16.14 JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry, Maclaine Watson v Department of Trade and Industry, Maclaine Watson v International Tin Council [1989] 3 WLR 969 (HL), [1989] 2 AC 418 11.29 Maclaine Watson & Co Ltd v Department of Trade and Industry; JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry and Others (1990) 81 ILR 670 (27 April 1988) 13.27

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R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union and associated references, hearings before the UK Supreme Court in December 2016 29.451 R (on the application of Ullah) v Special Adjudicator [2004] UKHL 26 22.188 Shearson Lehman Brothers v International Tin Council (intervener) (No 2) (1987) 77 ILR 107 (HL) 16.37, 16.38 Standard Chartered Bank v International Tin Council (1986) 77 ILR 16 16.29

United States 767 Third Avenue Associates v Permanent Mission of the Republic of Zaire to the UN, 99 ILR 194 (US 1992) 16.58 Anti-Defamation League of B’nai B’rith v Kissinger, Civil Action no 74 C 1545 (EDNY, 1 November 1974) 16.60 Askir v Boutros Boutros Ghali et al, 933 F Supp 368 (SDNY, 1996) 16.27 Balfour, Guthrie & Co Ltd, et al v United States et al, United States District Court for the Northern District of California, 5 May 1950; 90 F Supp 831 9.57, 9.58 Boimah v UN General Assembly (1987) 113 ILR 499, 664 F Supp 69 (SDNY, 1987) 16.27 Broadbent et al v Organization of American States: Decision of 8 January 1980 (US Court of Appeals for the District of Colombia Circuit) 15.63 Broadbent v Organization of American States (1980) 63 ILR 163 (DC Cir, US) 16.21 Brzak v United Nations 597 F.3d 107 CA2 (NY), 2010 16.27, 16.69 Curran v City of New York, 77 NYS 2d 266 (Supreme Court, New York, 1947) 16.27 De Luca v United Nations, 841 F Supp 531 (SDNY, 1994) 16.27 Georges, Delama et al v the United Nations et al (2015) 84 F Supp 3d 246 (US District Court SDNY) 13.29, 16.27, 16.31, 16.92 Georges, Delama et al v the United Nations et al (2016) 834 F Supp 3d 88 (US Court of Appeals, 2nd Circuit) 13.39, 16.27, 16.31, 16.92, 21.09(p. li) IBRD and IMF v All America Cable and Radio, Inc (1953) 22 ILR 705 (US Fed Communications Commission) 16.46 International Tin Council v Amalgamet (1988) 80 ILR 31 (New York Supreme Court) 16.13 Keeney v United States, 218 F 3d 843 (DC Cir, US, 1954) 16.37 Matter of Menon (Supreme Court, New York, 1973), [1973] UN Juridical YB 198 (Menon case) 16.27, 16.36 Means v Means, [1969] UN Juridical YB 243 16.27

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Mendaro v World Bank, 717 F.2d 610,615 (DC Cir, United States, 1983) 16.13 Ntakirutimana, In Re 998 F Supp 1038 31.36 Ntakirutimana, 184 F.3d 419 31.36 Papas v Francini, 119 NYS 2d 69 (Supreme Court, New York, 1953) 16.60 Santiesteban Casanova v Fitzpatrick 214 F Supp p 425 (US District Court SDNY, 1963) 16.52 Tachiona v Mugabe, 386 F3d 205 (2nd Cir US, 2004) 16.54 USA v PLO 695 F Supp 1456 (SDNY, US, 1988) 16.59 Westchester County v Ranollo, 67 NYS 2d 31 (1946) 16.69

Zimbabwe International Committee of the Red Cross v Sibanda and Another 2007 (1) SA 476 (ZS), 480D 16.27

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Table of International Instruments Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Aarhus Convention 1998 24.07, 28.46, 28.47 Additional Rules of Procedure for Defence Advocates Appearing Before Section I for War Crimes and Section II for Organised Crime, Economic Crime and Corruption of the Court of Bosnia and Herzegovina Art 1.1 31.193 Art 2.1 31.193 African Charter on Human and Peoples’ Rights, 1520 UNTS 217 28.54, 29.95 Agreement among the Governments of the Participating States of the Black Sea Economic Cooperation (BSEC) on Collaboration in Emergency Assistance and Emergency Response to Natural and Man-Made Disasters 1998 Art 2 21.01, 21.03 Agreement between Austria and Federal Republic of Germany concerning Mutual Assistance in the Event of Disasters or Serious Accidents 1988 21.04 Agreement between Canada and France on their Mutual Fishing Relations, 27 March 1972, 862 UNTS 209 Art 10 28.57

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Agreement between the Government of the Kingdom of Thailand and the Government of the United Kingdom on Air Services between and beyond their Respective Territories, 10 November 1950, 96 UNTS 77 Art 9 28.57 Agreement between the Government of the United States of America and the Government of the United Kingdom relating to Air Services between their Respective Territories, 11 February 1946, 3 UNTS 253 Art 9 28.57 Agreement between the High Representative for Bosnia and Herzegovina and Bosnia and Herzegovina on the Establishment of the Registry for Section I for War Crimes and Section II for Organised Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina and the Special Department for War Crimes and the Special Department for Organised Crime, Economic Crime and Corruption of the Prosecutor’s Office of Bosnia and Herzegovina (Original Registry Agreement), 1 December 2004 31.191, 31.193 Art 1(2) 31.193 Art 2 31.191, 31.192 Agreement between the High Representative for Bosnia and Herzegovina and Bosnia and Herzegovina on the Registry for Section I for War Crimes and Section II for Organised Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina and for the Special Department for War Crimes and the Special Department for Organised Crime, Economic Crime and Corruption of the Prosecutor’s office of Bosnia and Herzegovina as well as on the Creation of the Transition Council, Replacing the Registry Agreement of 1 December 2004 and the Annex, 26 September 2006 (New Registry Agreement) 31.191, 31.193 Art 8 31.191, 31.192 Agreement between the International Atomic Energy Agency and the Government of Mexico for assistance by the Agency to Mexico in establishing a Research Reactor Project (Article VII of the Agreement, signed at Vienna, on 18 December 1963) 9.49(p. liii) Agreement between the International Monetary Fund and the World Trade Organization, 9 December 1996 7.56 Agreement between Member States and Associate Members of the Association of Caribbean States for Regional Cooperation on Natural Disasters 1999 Art 1(1) 21.01 Agreement between the Office of the United Nations High Commissioner for Refugees and the Government of the Federal Republic of Germany concerning the Office of the United Nations High Commissioner for Refugees in Germany, Berlin, 1 July 2005 9.42 Agreement between the Republic of Indonesia and the Kingdom of The Netherlands concerning West New Guinea (West Irian), 437 UNTS 273 14.27

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Agreement between the Socialist Federal Republic of Yugoslavia and the Government of the Republic of Austria concerning their Common Border Art 38 28.50 Agreement between the Swiss Federal Council and the Government of the Republic of the Philippines on Cooperation in the Event of Natural Disaster or Major Emergencies 2001 21.04 Agreement between the United Nations and Austria regarding the Headquarters of United Nations Industrial Development Organization (UNIDO), 600 UNTS 93 s 7(b) 16.34 s 8 16.34 Agreement between the United Nations and Eritrea 9.40, 11.52, 11.55 Agreement between the United Nations and the Food and Agriculture Organization of the United Nations (FAO), GA Res 50 (I), 14 December 1946, 1946–47 UNTS 207 9.32 Art IX(2) 7.38 Art IX(3) 7.39 Art IX(4) 7.39 Agreement between the United Nations and Georgia 9.40, 11.52, 11.55 Agreement between the United Nations and the Government of Egypt relating to the Continuation and Further Extension of the Interregional Centre for Demographic Research and Training, established at Cairo, 22 December 1987, 1488 UNTS 111 11.42 Agreement between the United Nations and the Government of Haiti concerning the Status of the United Nations Operation in Haiti 2004 Art 22 16.98 Agreement between the United Nations and the Government of Lebanon concerning the Headquarters of the United Nations Economic and Social Commission for Western Asia, 1997 UNTS 321 16.12 Agreement between the United Nations and the Government of The Netherlands concerning the Headquarters of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, signed at New York on 29 July 1994 9.42, 11.35 Agreement between the United Nations and the Government of Thailand relating to the Headquarters of the Economic Commission for Asia and the Far East in Thailand, 6 February 1957, 1957 UNTS 35 11.37 Agreement between the United Nations and the Government of the United Republic of Tanzania concerning the Headquarters of the International Criminal Tribunal for Rwanda, signed at New York on 31 August 1995 9.42, 11.35

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Agreement between the United Nations and the Inter-governmental Maritime Consultative Organization (BCO), GA Res 204(III), 18 November 1948, 1949 UNTS 299 9.32 Agreement between the United Nations and the International Bank for Reconstruction and Development, GA Res 124 (II), 15 November 1947, 1948 UNTS 341 9.32, 11.40(p. liv) Agreement between the United Nations and the International Civil Aviation Organization (ICAO), GA Res 50 (I), 14 December 1946; 1947 UNTS 315 9.32 Agreement between the United Nations and the International Labour Organisation (ILO) (ILO Relationship Agreement), GA Res 50 (I), 14 December 1946, 1946–47 UNTS 183 9.32 Art I 7.36 Art II 7.37 Art II(5) 7.50 Art IV (2) 7.42 Art VII 7.50 Art XIV 7.37 Agreement between the United Nations and the International Monetary Fund (IMF), GA Res 124 (II), 15 November 1947, 1948 UNTS 325 9.32, 11.40 Agreement between the United Nations and the International Refugee Organization (IRO), GA Res 205(III), 18 November 1948, 1949 UNTS 299 9.32 Agreement between the United Nations and the International Telecommunication Union (ITU), GA Res 124 (II), 15 November 1947, 1949 UNTS 316 9.32 Agreement between the United Nations and Japan on Privileges and Immunities of the United Nations 1952 9.40 Agreement between the UN and Kenya regarding the Headquarters of UNEP, 962 UNTS 89 Art 7(b) 16.34 Art 8 16.34 Agreement between the United Nations and the Kingdom of The Netherlands concerning the Headquarters of the Special Tribunal for Lebanon 2007, 2007 UNTS 273 9.43 Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon 2007, 2007 UNTS 257 (STL Agreement) 9.43, 31.141 Art 1 31.140 Art 2(1) 31.144

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Art 2(2) 31.145 Art 2(3) 31.145 Art 2(5) 31.145 Art 3 31.146 Art 3(1) 31.146 Art 5(2) 31.158 Art 8(1) 31.143 Arts 9–12 31.154 Art 12(1) 31.147 Art 12(3) 31.147 Art 12(4) 31.147 Art 15 31.154 Art 19(1) 31.141 Agreement between the United Nations and the Republic of Korea regarding the Headquarters of the Asian Pacific Training Centre for Information and Communication Technology for Development 2363 UNTS 301 Art XXI(1) 16.17 Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchia (ECCC Agreement) 31.125 Art 2(1) 31.126 Art 2(2) 31.126 Art 2(3) 31.126 Art 4 31.128 Art 5 31.129 Art 5(3) 31.129 Art 5(4) 31.129 Art 6 31.130 Art 6(3) 31.130 Art 7 31.128, 31.129, 31.130 Art 8 31.131

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Art 9 31.132 Art 11 31.133 Art 12 31.135 Art 16 31.130 Art 17 31.138 Art 27(5) 31.128 Art 28 31.127 Art 31 31.126 Agreement between the United Nations and the Russian Federation 9.40, 11.52, 11.55 Agreement between the United Nations and the Supreme National Council of Cambodia on the Status of the United Nations Transitional Authority in Cambodia 1992 16.94(p. lv) Agreement between the United Nations and United Nations Industrial Development Organization (UNIDO) 11.39 Agreement between the United Nations and the United Nations Educational, Scientific and Cultural Organization (UNESCO), GA Res 50 (I), 14 December 1946, 1946–47 UNTS 233 9.32 Agreement between the United Nations and the United States regarding the Headquarters of the United Nations signed 26 June 1947 (Headquarters Agreement between the United Nations and United States) (US/UN Headquarters Agreement), 1947, 2 UNTS 11 15.13, 16.05, 16.10, 16.27, 16.50, 16.57, 16.61 Annex 1 16.10 Art 1 16.10 Arts I–VII 16.10 Art IV 16.10 Art V, s 15 16.10, 16.16, 16.17 s 4(a) 16.46 s 7 16.19 s 7(d) 16.34 s 8 16.34 s 9 16.33 s 9(b) 16.34 ss 11–13 16.60

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s 11 16.56, 16.60 s 13 16.57 s 15 16.49, 16.51, 16.52, 16.57, 16.58 s 15(2) 16.52 s 16 16.21, 16.35, 16.48, 16.50 s 17 16.42 s 21 16.59 s 26 16.16 Agreement between the United Nations and the Universal Postal Union (UPU), GA Res 124 (II), 15 November 1947, 1948 UNTS 219 9.32 Agreement between the United Nations and the World Health Organization (WHO), GA Res 124 (II), 15 November 1947, 1948 UNTS 193 (WHO Relationship Agreement) 9.04, 9.32, 11.40, 14.66 Art II(5) 7.50 Art VIII 7.50 Art X 9.04 Agreement between the United Nations and the World Meteorological Organization, GA Res 531 (VI), 20 December 1951, 1952 UNTS 245 7.08, 9.32 Agreement between the United Nations and the World Tourism Organization Art 10 7.38 Agreement between World Intellectual Property Organization and World Trade Organization, 22 December 1995 11.40 Agreement concerning the Legal Status, Privileges and Immunities of the United Nations Observer Mission and its Personnel in South Africa 1993, 1993 UNTS 212 9.40 Agreement concerning the Relationship between the United Nations and the International Seabed Authority, 14 March 1997, 1967 UNTS 255 Art 15 7.17 Agreement concerning the Relationship between the United Nations and the Organization for the Prohibition of Chemical Weapons, GA Res 55/283, 2160 UNTS 208, (2001) 11.43, 31.62 Agreement establishing the Caribbean Disaster Emergency Response Agency 1991 Art 1(d) 21.01

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Agreement establishing the World Trade Organization, 15 April 1994, 1867 UNTS 3, 1868 UNTS 3 (continued), 1869 UNTS 3 (continued) 7.13, 7.14, 11.43 Art II(1) 7.14 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 24.10 Agreement governing the Activities of States on the Moon and other Celestial Bodies, 5 December 1979, 1363 UNTS 21 26.35 Art XV(1) 28.39 Agreement governing the Relationship between the General Assembly and the IAEA 31.62 Art I(2) 31.62 Art VII(1) 31.62 Agreement on the Comprehensive Political Settlement of the Cambodian Conflict, signed in Paris on 23 October 1991, UN Doc S/23177-A/46/609, 30 October 1991 27.102(p. lvi) Agreement on Cooperation and Relationship between the United Nations and the International Tribunal for the Law of the Sea, GA Res 52/251 (1998); 2000 UNTS 467 11.43 Art 9 7.17 Agreement on the Establishment of a Residual Special Court for Sierra Leone 2010 31.121 Art 1(3) 31.121 Art 2 31.122 Art 3 31.122 Art 6 31.121 Agreement on the Establishment of the Republic of Yemen, 1990, (1991) 30 ILM 820 Art 1 8.28 Agreement on the Interrelationship for the Settlement of the Situation Relating to Afghanistan (between Pakistan and Afghanistan) and the related Memorandum of Understanding 27.81 Agreement on the Privileges and Immunities of the International Atomic Energy Agency, 1 July 1959, 374 UNTS 147 7.15 Agreement on the Privileges and Immunities of the International Tribunal for the Law of Sea 1997, 2167 UNTS 271 11.43 Agreement on Privileges and Immunities of the United Nations Concluded between the Secretary-General of the United Nations and the Swiss Federal Council, signed at

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Bern, 11 June/1 July 1946, 1 UNTS 164 (UN/Switzerland Agreement) 16.11, 16.46, 16.48, 16.52 Art 1 16.13 Art 16 16.65 s 1 16.27 s 2 16.33 s 5 16.42 s 9 16.56 s 15(a) 16.68 Agreement on the Relationship between the United Nations and the International Development Association, GA Res 1594 (XV), 27 March 1961, 1961 UNTS 221 6.40, 7.09, 9.32 Art 11 7.55 Agreement on the Relationship between the United Nations and the International Finance Corporation, GA Res 1116 (XI), 20 February 1957, 1957 UNTS 312 7.09, 9.32 Agreement regarding Economic Commission for Africa 16.49 s 4(a) 16.35 Agreement regarding Economic Commission for Asia and the Far East s 5(a) 16.35 Agreement relating to the Headquarters of the UN Economic and Social Commission for Western Asia (ESCWA) Art 7(3) 16.65 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, UNTS (1994) 42 11.43 Agreement with Chile concerning the UN Economic Commission for Latin America and the Caribbean, 314 UNTS 49 s 20(b) 16.17 American Convention on Human Rights (Pact of San José), 1969, 1144 UNTS 123 28.54 American Treaty on Pacific Settlement (Pact of Bogota) 1948, 30 UNTS 55 28.54, 29.89, 29.95 Art III 28.04 Arts IX–XIV 28.44 Art XXIII 29.102 Art XXXI 29.102

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Art XXXVIII 28.49 Antarctic Treaty 1959 28.45 Art VIII(2) 28.39 Appointment of Inspecting Authority for the Detention Unit (28 April 1995) 31.06 Articles of Agreement of the International Bank for Reconstruction and Development, 1945, 2 UNTS 134 (as amended effective 27 June 2012) Art VII 16.04 Art VII, s 3 16.27 Articles of Agreement of the International Finance Corporation (as amended effective 27 June 2012) 7.09 Art VI, s 3 16.27(p. lvii) Articles of Agreement of the International Monetary Fund, 1945, 2 UNTS 40 Art VI, s 3 16.27 Art IX 16.04 Art IX(3) 16.29 ASP (Assembly of States Parties) Rules of Procedure 31.72 r 35(1) 31.74 r 35(2) 31.74 r 36 31.74 Association of South East Asian Nations Agreement on Disaster Management and Emergency Response 2005 21.04 Art 3(2) 21.09 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal Art 15(5)(b) 24.15 Art 15(5)(d) 24.15 Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium, UN Doc A/50/757-S/1997/951, 15 November 1995 27.103 Cartegena Declaration on Refugees (1984) Recommendation II(e) 23.17, 23.29 Charter of Bogota, 30 April 1948, 119 UNTS 3 28.54 Charter of the Organization of African Unity 29.88

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Charter of the United Nations, 24 October 1945, 1 UTS XVI (UN Charter) 1.02, 1.03, 1.14, 1.19–1.26, 1.27, 1.28, 1.30, 1.35, 2.01, 2.30, 2.68, 3.55, 5.59, 5.60, 7.02, 8.19, 8.23, 8.44, 8.45, 8.46, 8.47, 8.83, 8.84, 8.94, 9.10, 9.60, 9.70, 11.04, 11.10, 12.02, 12.10, 12.13, 13.08, 14.49, 15.03, 16.01, 16.06, 16.20, 16.62, 16.86, 16.108, 22.01, 22.68, 25.01, 26.03, 26.04, 26.07, 26.64, 27.01, 27.05, 29.189 Preamble 11.01, 17.01 Ch II 10.37 Ch IV 26.11 Ch V 26.41 Ch VI 3.73, 3.76, 9.31, 10.37, 10.55, 12.18, 22.20, 26.41, 26.42, 27.15, 27.17, 27.24, 27.25, 27.26, 27.27, 27.29, 27.33, 27.34, 27.55, 27.56, 27.65, 27.78, 28.01, 28.02, 28.09, 28.55 Ch VII 2.105, 3.55, 3.76, 6.19, 8.21, 8.22, 8.33, 9.03, 9.12, 9.24, 9.30, 9.31, 10.06, 10.37, 11.04, 11.25, 11.26, 11.29, 12.18, 12.19, 16.87, 16.104, 20.07, 22.20, 22.31, 26.41, 26.42, 26.43, 26.52, 26.57, 26.59, 26.60, 26.69, 26.70, 26.86, 26.87, 26.88, 26.89, 26.91, 26.97, 26.98, 26.100, 26.102, 26.105, 26.107, 26.109, 26.114, 26.115, 26.117, 26.119, 26.120, 27.02, 27.07, 27.09, 27.12, 27.15, 27.19, 27.24, 27.28, 27.29, 27.30, 27.32, 27.34, 27.35, 27.36, 27.38, 27.41, 27.48, 27.53, 27.55, 27.56, 27.57, 27.58, 27.59, 27.64, 27.65, 27.69, 27.71, 27.74, 27.75, 27.78, 27.104, 27.108, 27.112, 27.114, 28.02, 28.03, 28.09, 28.55, 31.01, 31.10, 31.22, 31.25, 31.44, 31.57, 31.103, 31.114, 31.140, 31.142, 31.154, 31.173, 31.182 Ch VIII 3.73, 3.77, 8.33, 26.41, 28.53 Ch IX 2.96, 5.49, 5.50, 17.01, 26.10 Ch X 2.96, 5.49, 5.50, 26.10 Ch XI 4.23, 4.24, 8.53, 27.111 Ch XII 3.73, 4.02, 4.21, 4.25, 4.29, 8.53, 9.17, 27.96 Ch XIII 4.02, 4.25, 4.29, 27.96, 27.111, 27.119 Ch XIV 29.195 Ch XIX 11.01 Art 1 2.93, 8.37, 9.13, 9.16, 12.18, 12.31, 17.01, 22.125 Art 1(1) 12.18, 28.01, 28.05 Art 1(2) 19.02, 28.01 Art 1(3) 12.07, 12.18, 12.22, 17.01, 18.01, 22.01, 24.01 Art 2 8.37, 9.13, 12.18, 12.31 Art 2(1) 8.03, 8.24, 10.02, 10.61, 28.01

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Art 2(2) 8.37, 28.01 Art 2(3) 27.26, 28.01, 28.03, 28.06 Art 2(4) 9.25, 11.12, 26.81, 27.38, 28.01 Art 2(5) 8.22, 8.33, 26.66 Art 2(6) 26.66 Art 2(7) 2.98, 9.12, 9.21, 9.22, 9.25, 9.26, 9.27, 9.28, 9.29, 9.30, 9.31, 10.55, 12.18, 19.08, 22.03, 26.14, 26.21, 27.33, 27.35, 27.38, 27.41, 27.48, 27.55, 28.01, 28.02 Art 3 2.80, 8.01, 8.04, 8.51 Art 4 3.72, 8.01, 8.04, 8.05, 8.08, 8.09, 8.10, 8.15, 8.16, 8.27, 8.28, 8.34, 8.47, 8.49, 8.53, 8.57 Art 4(1) 6.99, 8.14, 8.15, 8.19, 8.51 Art 4(2) 2.80, 8.06, 8.09, 8.51(p. lviii) Art 5 2.75, 2.81, 2.83, 3.72, 8.30, 8.31, 8.32, 8.33, 8.34, 8.73, 14.61, 26.46 Art 6 2.83, 3.72, 8.40, 8.47, 8.51, 26.46 Art 7 6.02, 6.21, 29.194 Art 7(1) 5.03, 5.48, 6.02, 15.01 Art 7(2) 5.09, 6.02, 6.05, 6.06, 6.14, 6.15, 6.16, 6.17, 6.18, 6.48, 6.65, 6.88, 6.119, 6.122, 6.140, 11.35 Art 8 6.30, 15.13, 15.22 Art 9(1) 2.04 Art 9(2) 2.05, 8.71, 12.12, 16.48 Art 10 2.87, 2.93, 2.99, 9.60, 26.06, 26.11, 26.14, 26.15, 26.16, 26.17, 26.18, 26.20, 26.21, 26.24, 26.27, 26.29, 28.18 Art 11 2.105, 9.17, 25.66, 26.06, 26.11, 26.16, 26.23, 26.89, 28.18, 28.20, 28.21 Art 11(1) 2.93, 2.94, 26.11, 26.14, 26.23, 26.24 Art 11(2) 2.93, 2.94, 2.99, 2.105, 8.33, 14.52, 26.04, 26.05, 26.06, 26.11, 26.14, 26.21, 26.23, 26.25, 26.26, 26.27, 26.28, 26.29, 26.31 Art 11(3) 2.94, 15.64, 26.06 Art 11(4) 2.94, 26.06 Art 12 2.87, 2.99, 2.100, 2.102, 9.17, 26.04, 26.06, 26.11, 26.15, 28.08, 28.18, 28.22

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Art 12(1) 2.99, 2.100, 2.101, 2.102, 6.26, 9.17, 10.37, 26.05, 26.29, 28.08, 28.18, 29.118 Art 12(2) 15.52 Art 13 25.05, 28.18 Art 13(b) 17.03 Art 13(1) 2.93, 26.11 Art 13(1)(a) 2.96, 12.02, 25.02, 25.03, 25.64, 25.66, 26.23, 26.34 Art 13(1)(b) 2.96, 22.01 Art 13(2) 2.96 Art 14 2.93, 2.94, 2.99, 14.52, 26.11, 26.14, 26.16, 26.18, 26.21, 26.23, 26.27, 26.29, 26.30, 26.31, 27.113, 28.18, 28.21 Art 14(b) 17.13 Art 15 26.10 Art 15(1) 2.88 Art 15(2) 2.88 Art 16 4.27 Art 17 10.10, 14.19, 14.60, 15.56, 26.10, 29.243, 31.16, 31.24, 31.46 Art 17(1) 2.84, 5.52, 14.02, 14.19 Art 17(2) 2.84, 14.19, 14.47, 14.52, 29.243, 31.39 Art 17(3) 7.48, 14.66, 14.67 Art 18 2.01, 2.83, 10.58, 12.12, 14.15 Art 18(1) 2.23, 10.02, 10.61 Art 18(2) 2.23, 2.35, 2.39, 2.80, 2.83, 2.84, 5.07, 8.10, 10.05, 10.06, 10.35, 10.50, 11.06, 14.19, 26.12, 26.13 Art 18(3) 2.23, 10.07, 10.35, 11.06 Art 19 2.32, 2.69, 2.75, 2.82, 8.31, 8.32, 8.33, 8.34, 10.04, 10.14, 14.48, 14.60, 14.61, 14.62, 14.63, 31.85 Art 20 2.08, 2.13, 3.72 Art 21 2.07, 2.12, 2.32, 2.71, 5.10, 6.06, 6.65, 10.31 Art 22 1.31, 6.06, 6.14, 6.16, 6.17, 6.18, 6.48, 6.65, 6.119, 6.122, 6.140, 11.35, 12.12, 14.61, 15.02, 15.34, 22.17

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Art 23 1.22, 2.43, 3.05, 15.57, 23.437 Art 23(1) 2.36, 3.04, 3.08, 3.09, 12.12 Art 23(2) 8.71 Art 23(3) 16.48 Art 24 2.102, 14.52, 27.26, 28.08, 28.25 Art 24(1) 2.102, 3.01, 3.73, 6.81, 17.03, 24.06, 26.04, 26.41, 28.10 Art 24(2) 3.73, 12.18, 12.22, 13.06, 26.72 Art 24(3) 2.88, 3.72 Art 25 3.01, 12.22, 12.31, 16.87, 26.08, 26.66, 26.72, 26.73, 27.30 Art 27 1.22, 3.53, 10.33, 10.38, 10.50, 10.51, 15.57, 26.22, 29.437 Art 27(1) 3.52, 5.11, 10.61 Art 27(2) 2.13, 3.52, 10.37, 10.58, 12.12 Art 27(3) 2.102, 3.53, 3.57, 5.12, 8.06, 10.37, 10.38, 10.39, 10.40, 10.48, 10.51, 10.52, 10.53, 10.55, 10.58, 15.41, 28.03, 28.10, 29.05, 29.107 Art 28(1) 3.15 Art 28(2) 3.15, 3.17 Art 28(3) 3.16 Art 29 1.20, 1.31, 6.06, 6.14, 6.16, 6.17, 6.18, 6.88, 6.119, 6.140, 11.35, 27.33, 27.111 Art 30 3.14, 5.10, 6.06, 26.22 Art 31 3.34, 3.43, 10.38 Art 32 3.43, 3.46, 29.257 Art 32(2) 29.257 Art 32(5) 29.258, 29.265 Art 32(8) 29.257 Arts 33–38 28.01 Art 33 3.76, 10.37, 10.55, 28.01, 28.02, 28.03, 28.09, 28.35, 28.47, 28.48, 28.54, 28.57 Art 33(1) 28.04, 28.06, 28.37, 28.43 Art 33(2) 27.26, 28.02 Art 34 3.76, 10.37, 10.55, 26.21, 27.25, 27.27, 28.07, 28.09, 28.11

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Art 35 3.76, 14.52, 26.21, 26.23, 26.27, 26.31, 28.07, 28.10(p. lix) Art 35(1) 2.94, 3.43, 15.64, 26.06, 26.10, 28.07, 28.10, 28.18 Art 35(2) 2.94, 8.81, 8.86, 26.27, 28.07, 28.10 Art 36 8.33, 10.55 Art 36(1) 3.76, 10.35, 27.26, 28.09, 28.14 Art 36(2) 10.35 Art 36(3) 3.76, 10.55, 28.10, 28.35, 29.281 Art 37 8.33 Art 37(1) 28.09, 28.10 Art 37(2) 3.76, 28.09, 28.14 Art 38 2.105, 3.76, 9.03, 10.55, 28.09 Art 39 3.77, 5.57, 8.33, 9.12, 9.30, 22.19, 26.06, 26.43, 26.47, 26.50, 26.51, 26.57, 26.58, 26.59, 26.60, 26.71, 26.87, 26.88, 26.91, 26.100, 26.107, 27.30, 27.32, 27.33, 27.34, 27.36, 27.46, 27.48, 27.55, 29.45 Art 40 26.44, 27.18, 27.19, 27.30, 27.33, 27.34, 27.35, 27.36, 27.37, 27.38, 27.39, 27.48, 27.55, 27.78 Art 41 26.57, 26.91, 27.17, 30.01,

3.77, 5.57, 9.06, 22.19, 26.44, 26.47, 26.49, 26.50, 26.51, 26.54, 26.56, 26.58, 26.59, 26.60, 26.62, 26.63, 26.64, 26.65, 26.69, 26.70, 26.71, 26.92, 26.97, 26.102, 26.103, 26.104, 26.105, 26.107, 26.108, 26.114, 27.30, 27.31, 27.32, 27.33, 27.38, 27.40, 27.41, 27.42, 27.44, 27.55, 31.02

Art 41(2) 28.35 Art 42 26.85, 26.98, 27.32, 27.50,

3.77, 6.19, 22.19, 26.44, 26.46, 26.49, 26.69, 26.70, 26.81, 26.83, 26.84, 26.86, 26.87, 26.88, 26.89, 26.91, 26.92, 26.93, 26.94, 26.95, 26.97, 26.100, 26.103, 26.105, 26.107, 26.110, 26.114, 27.17, 27.30, 27.31, 27.33, 27.35, 27.37, 27.38, 27.41, 27.43, 27.44, 27.46, 27.48, 27.49, 27.51, 27.53, 27.55, 27.69, 27.72, 27.112

Art 43 3.74, 6.94, 8.23, 9.32, 26.49, 26.84, 26.85, 26.86, 26.96, 26.103, 26.120, 27.44 Art 47 3.75, 6.05, 8.23 Art 47(1) 6.93 Art 47(2) 6.93 Art 47(4) 6.93 Art 48 8.23, 12.31, 26.66

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Art 48(2) 11.40 Art 49 26.66, 27.30 Art 50 8.35 Art 51 13.33, 26.69, 26.81, 26.100, 26.102, 27.65 Art 52(2) 28.09, 28.54 Art 52(3) 3.76, 10.55, 28.03, 28.54 Art 53 3.77, 26.115 Art 55 5.15, 7.37, 17.06, 18.01, 18.13, 18.16, 22.01, 22.125, 26.20, 26.21, 28.59 Art 55(a) 5.22, 17.01, 17.06 Art 55(b) 5.22, 17.01, 17.06 Art 55(c) 5.22, 12.18, 12.22, 22.01, 22.125, 25.66 Art 56 5.49, 12.22, 22.125, 26.20 Art 57 5.25, 5.49, 7.03, 7.35, 7.41, 7.51, 11.38, 15.02, 15.13, 15.14, 18.25 Art 57(1) 6.46, 7.07 Art 57(2) 7.07 Art 58 7.37, 7.41 Art 59 7.41 Art 60 2.86, 5.49, 5.50, 6.02, 6.120, 7.41, 15.53, 17.64, 18.13 Art 61 1.22, 5.08, 15.57, 29.437 Art 61(1) 5.07, 5.51 Art 61(2) 2.48, 5.07 Art 61(3) 2.49, 5.07 Art 61(4) 5.37, 8.71 Art 62 7.37, 13.04 Art 62(1) 2.88, 5.22, 5.50, 5.59, 7.41, 17.03, 22.03 Art 62(2) 5.22, 5.50, 5.59, 22.01, 22.03 Art 62(3) 5.23, 5.50, 22.03 Art 62(4) 5.23, 5.50, 22.03 Art 63 7.03, 7.04, 7.35, 7.37, 9.32, 11.38, 15.13, 15.14, 15.53, 18.25

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Art 63(1) 5.25, 5.50 Art 63(2) 5.25, 5.50, 7.43, 22.03 Art 64 5.28 Art 64(1) 5.25, 7.46 Art 64(2) 2.88, 5.25, 7.46 Art 65 5.28, 5.57, 5.58 Art 66(1) 2.86, 5.28 Art 66(2) 5.28, 5.50, 18.13 Art 66(3) 5.25, 5.50 Art 67 5.14, 10.05, 10.67 Art 67(1) 5.12, 10.61 Art 67(2) 5.12, 5.14, 10.50, 10.62, 10.63, 10.67 Arts 68–72 5.10 Art 68 5.09, 5.40, 6.06, 6.14, 6.16, 6.17, 6.18, 6.119, 6.122, 6.140, 10.67, 11.35, 22.01, 22.05 Art 69 5.38, 5.39, 5.40, 5.43, 10.61, 29.437 Art 70 5.41, 5.43, 8.81 Art 71 5.27, 5.43, 8.93, 22.03 Art 72 6.06, 6.122 Art 72(1) 6.06, 10.63 Art 73 26.21, 27.96 Art 73(b) 26.21 Art 73(e) 15.52 Art 74 4.23 Art 76 4.12 Art 76(c) 22.01 Art 77 9.11 Art 77(1) 4.13, 27.96 Art 78 4.28, 27.119 Art 81 9.11, 27.96

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Arts 82–85 9.17 Art 82 3.79(p. lx) Art 82(5) 2.86 Art 83(1) 3.79, 4.27 Art 83(3) 4.11, 4.27 Art 85(1) 4.11, 4.27 Art 85(2) 4.27, 6.02 Art 86 2.51, 4.03 Art 86(1)(c) 2.51 Art 86(2) 8.71 Art 87 8.81 Art 87 2.85, 6.02 Art 87(a) 4.11 Art 87(b) 4.11 Art 87(c) 4.11 Art 88 2.88, 4.11 Art 89 5.14 Art 89(1) 4.09, 10.61 Art 89(2) 4.09 Art 90 6.06 Art 90(1) 4.08, 5.10 Art 91 5.54, 7.50 Art 91(1) 29.117 Arts 92–96 29.195 Art 92 6.02, 8.32, 28.52, 29.195 Art 93 8.32 Art 93(2) 2.80, 3.72, 8.81 Art 94 8.33 Art 94(2) 3.78, 28.34, 28.53

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Art 95 29.281 Art 96 29.104, 31.62, 31.64 Art 96(1) 3.72, 7.04, 29.118 Art 96(2) 2.90, 5.53, 7.38, 7.48, 9.04, 15.34, 29.104, 29.110, 29.113 Art 97 2.91, 3.72, 9.53, 10.30, 10.60, 14.08, 15.02, 15.05, 15.13, 15.38, 15.40, 18.17, 28.23, 29.196 Art 98 2.88, 15.38, 15.48, 15.55, 15.64, 28.23, 29.196 Art 99 15.38, 15.64, 22.25, 26.06, 28.23, 28.25 Art 100 11.07, 15.12, 15.13, 15.14 Art 100(1) 15.38, 15.56, 16.61 Art 100(2) 15.38 Art 101 15.05, 15.13, 15.14, 15.26, 15.56 Art 101(1) 2.89, 6.24, 9.06, 15.02, 15.20 Art 101(3) 15.20, 15.21, 15.24, 15.29, 15.30 Art 102(1) 12.14, 15.06, 15.09 Art 103 8.22, 12.01, 12.30–12.33, 16.05, 16.16, 16.17, 16.18, 16.32 Art 104 9.36, 9.37, 9.39, 9.40, 9.41, 9.42, 9.52, 9.53, 11.12, 11.22, 11.24, 11.26, 16.12, 16.57 Art 105 9.39, 9.40, 15.13, 16.02, 16.05, 16.07, 16.12, 16.13, 16.16, 16.17, 16.18, 16.27, 16.48, 16.56, 16.57, 16.58, 16.61, 16.75, 16.77, 16.79, 16.85, 16.88 Art 105(1) 16.04, 16.20, 16.77 Art 105(2) 16.02, 16.04, 16.20, 16.47, 16.61, 16.77, 16.93, 16.99 Art 105(3) 2.92, 16.04, 16.07, 16.77 Art 108 1.21, 2.92, 3.07, 3.72, 10.08, 29.437 Art 109 1.23, 10.09, 10.33, 29.437 Art 109(1) 1.23, 2.92, 3.72, 10.33 Art 109(3) 1.23, 3.72, 10.33 Art 110 8.01, 8.02, 8.07 Art 326 9.40 Chicago Convention on International Civil Aviation 29.95

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Code of Conduct for Special Procedures Mandate Holders of the Human Rights Council 22.67 Art 1 22.61 Art 3(a) 22.61 Art 9 22.64 Art 11 22.63 Art 12(b) 22.61 Code of Professional Conduct for Defence Counsel appearing before the International Tribunal (revised, 2009) 31.07 Code of Professional Conduct for Defence Counsel and Legal Representatives of Victims appearing before the Special Tribunal for Lebanon Art 8(C) 31.157 Art 8(D) 31.157 Art 8(E) 31.157 Consolidated Treaty on European Union (post-Lisbon) (European Union [EU]) [2008] OJ C115/13, [2012] OJ C326/1 11.10, 28.55 Constitution of the Food and Agricultural Organization, 16 October 1945 Art I(2) 24.10 Art XVI 9.04 Constitution of the International Labour Organization 11.40 Art I (5) 7.33 Constitution of United Nations Industrial Development Organization Art 18 18.25 Art 25 18.25 Constitution of the World Health Organization 1946, 1948 UNTS 185 Art 1 9.04 Art 2(d) 21.10 Art 6 7.21 Art 76 9.04 Constitutive Act of the African Union, concluded on 11 July 2000 28.54(p. lxi)

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Convention Against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment, 17 December 1984 (CAT) 12.29, 22.11, 22.143–22.146, 22.195, 22.196, 29.88, 29.89, 29.95, 31.179 Art 3 22.192 Art 17(1) 22.162, 22.164, 22.165, 22.167 Art 17(2) 22.165 Art 17(5) 22.168 Art 18(3) 22.172 Art 18(4) 22.170 Art 19(1) 22.174, 22.175 Art 19(3) 22.176, 22.192 Art 20 22.195 Art 20(1)–(5) 22.195 Art 21(1) 22.190 Art 22 22.184, 22.192 Art 24 22.214 Art 28(1) 22.196 Optional Protocol to the Convention Against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment (OP-CAT) 22.146, 22.212 Art 1 22.146, 22.212 Art 2 22.146 Art 3 22.146 Art 4 22.212 Art 5(1) 22.163 Art 5(2) 22.165 Art 5(4) 22.166 Art 7(1)(c) 22.164 Art 9 22.168 Art 11(1)(a)–(c) 22.212 Art 13(1) 22.212 Art 13(3) 22.212

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Art 13(4) 22.212 Art 14 22.212 Art 16(1) 22.212 Art 16(2) 22.212 Art 16(4) 22.212 Art 24 22.212 Art 25(2) 22.172 Convention concerning the Protection of the World Cultural and Natural Heritage 1972 24.10 Convention establishing an International Relief Union 1927 21.06 Art 1 21.06 Convention for the Pacific Settlement of International Disputes 1907 Art 44 29.08 Convention for the Protection of the Ozone Layer, 22 March 1985, 1513 UNTS 323 Art 11(5) 28.57 Convention for the Suppression of Acts of Nuclear Terrorism 2005 25.54 Convention for the Suppression of Unlawful Seizure of Aircraft, 16 December 1970 (entered into force on 14 October 1971), 860 UNTS 105 1.25, 12.03 Convention governing the Specific Aspects of Refugee Problems in Africa (1969) (OAU) Art VIII 23.17, 23.29 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters 1998 (Aarhus Convention) 24.07, 28.46, 28.47 Convention on Action against Trafficking in Human Beings Art 42(1) 12.14 Convention on the Assignment of Receivables in International Trade 2001 25.62 Convention on Assistance in the Case of a Nuclear Accident of Radiological Emergency 1986 21.04 Convention on Biological Diversity 1992 28.47 Art 23(4)(c) 24.15 Art 23(4)(d) 24.15 Convention on the Consent to Marriage, Minimum Age for Marriage and Registration of Marriages 1962 17.20, 22.140

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Convention on the Elimination of All Forms of Discrimination Against Women, 17 December 1979 (CEDAW) 12.29, 17.20, 22.11, 22.139–22.142, 22.195, 25.67 Arts 1–16 22.141(p. lxii) Arts 17–22 22.141 Art 17(1) 6.43, 22.163, 22.165, 22.167, 22.173 Art 17(4) 22.164 Art 17(5) 22.168 Art 17(8) 22.169 Art 17(9) 22.172 Art 18 22.174 Art 18(1) 22.174, 22.175 Art 18(2) 22.174 Art 20(1) 22.170 Art 20(2) 22.171 Art 21(2) 22.214 Art 22 22.175 Arts 23–30 22.141 Pts I–IV 22.141 Pt V 22.141 Pt VI 22.141 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (OP-CEDAW) 22.142, 22.196 Art 2 22.184 Art 7(3) 22.187 Art 7(4) 22.187 Art 8 22.195 Art 8(1) 22.195 Art 8(2) 22.195 Art 8(3) 22.195 Art 8(4) 22.195

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Art 9(1) 22.195 Art 10 22.196 Convention on Environmental Impact Assessment in a Transboundary Context 1991 (Espoo Convention) 24.07 Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries 1978 29.88, 29.100 Convention on Independent Guarantees and Stand-by Letters of Credit 1995 25.62 Convention on International Bills of Exchange and International Promissory Notes 1988 25.62 Convention on International Civil Aviation, 15 UNTS 296 29.95 Art 47 11.40 Art 93bis(2) 8.38 Convention on International Liability for Damage caused by Space Objects, 29 March 1972, 961 UNTS 187 13.01 Art XIX (2) 28.57 Convention on the International Maritime Organization Art 10 8.38 Convention on International Trade in Endangered Species Art XV 24.15 Art XVII 24.15 Convention on the Law of the Non-Navigational Uses of International Watercourses, 21 May 1997, No 52106 24.03, 25.44, 26.35 Convention on the Liability of Operators of Transport Terminals in International Trade 1991 25.62 Convention on Long-Range Transboundary Air Pollution 1979 24.07 Convention on the Nationality of Married Women 1957 17.20, 22.140 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, 26 November 1968, 754 UNTS 73 26.35 Convention on Offences and Certain Other Acts Committed on Board Aircraft 1963 1.25 Convention on the Political Rights of Women 1952 22.07, 22.140 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 278 8.66, 12.03, 15.58, 22.11, 22.160, 25.54, 25.67, 26.35, 29.93, 29.95, 31.132

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Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 14 December 1973, 1035 UNTS 167 25.44, 26.35 Convention on the Privileges and Immunities on the Specialized Agencies, 21 November 1947 15.13, 16.07 Art II 11.38, 11.40 s 26 7.40 Convention on Privileges and Immunities of the United Nations, 13 February 1946, 1 UNTS 15 (General Convention) 9.39, 9.40, 9.41, 9.42, 9.49, 9.53, 11.21, 11.22, 11.23, 11.24, 11.27, 11.29, 13.08, 15.13, 16.04, 16.05, 16.07, 16.09, 16.11, 16.17, 16.18, 16.20, 16.27, 16.49, 16.63, 16.64, 16.67, 16.72, 16.73, 16.86, 16.88, 16.94, 16.98, 16.100, 16.108, 25.54, 29.229, 29.257, 31.03 Art 1 9.38, 11.23, 11.24 Art II, s 2 16.16, 16.28 Art 2, s 5 16.40 Art IV 16.77, 16.80, 16.81(p. lxiii) Art IV, s 11 16.16 Art IV, s 14 16.108 Art V 14.09, 16.62, 16.78 Art V, s 17 15.62 Art V, s 20 15.62, 16.108 Art VI 16.62, 16.77 Art VI, s 22 5.53 Art VI, s 23 15.62, 16.108 Art VII 14.09, 16.78 Art XIX 16.65 Art 29(a) 16.92 s 2 16.27, 16.29, 16.31 s 3 16.33, 16.36, 16.45 s 4 16.37, 16.38, 31.20, 31.42 s 5 16.23 s 7 16.22 s 7(a) 16.42, 16.43

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s 7(b) 16.23, 16.45 s 7(c) 16.23, 16.45 s 8 16.22, 16.44 s 9 16.23, 16.46 s 10 16.23, 16.46 s 11 6.23, 16.23, 16.52, 16.55, 16.56 s 11(a)–(f) 16.54 s 11(a) 16.53 s 11(b) 16.53 s 11(c) 16.23, 16.53 s 11(d) 16.53, 16.56 s 11(e) 16.23, 16.53 s 11(f) 16.53 s 11(g) 16.53, 16.54, 16.58 s 12 16.55, 16.75 s 13 16.58 s 14 16.31, 16.57 s 15 16.51, 16.62, 16.67 s 16 16.48 s 17 16.62 s 18 16.64, 16.76 s 18(a) 16.68 s 18(b) 16.22, 16.66, 16.70, 16.71 s 18(c) 16.74 s 18(d) 16.74 s 18(e) 16.23 s 18(g) 16.66, 16.70 s 19 16.64, 16.67 s 20 16.28, 16.31, 16.70, 16.83, 16.93, 16.95

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s 21 16.83 s 22 16.79, 16.82 s 22(a) 16.95 s 22(b) 16.80 s 22(c) 16.79 s 22(d) 16.79 s 22(e) 16.79 s 22(f) 16.79 s 23 16.28, 16.31, 16.83, 16.95 s 26 16.80 s 29 21.09 s 29(b) 16.83 s 30 16.07 s 31 16.07 s 35 16.07 s 36 16.17 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, GA Res 2826 (XXVI) (1971) 26.35 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, 10 December 1976, 1108 UNTS 151 1.25, 26.35 Convention on the Protection and Use of Transboundary Watercourses and International Lakes 1992 24.07 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) 25.62 Convention on the Reduction of Statelessness Art 11 23.17, 23.22 Convention on the Rights of the Child, 20 December 1989 (CRC) 12.29, 22.11, 22.147–22.149, 25.67 Arts 1–41 22.148 Arts 42–45 22.148 Art 42 22.119

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Art 43(1) 22.170, 22.173 Art 43(2) 22.164, 22.165 Art 43(6) 22.168 Art 43(11) 22.172 Art 43(12) 22.169 Art 44(1) 22.174, 22.175 Art 44(2) 22.174 Art 44(5) 22.214 Arts 46–54 22.148 Pt I 22.148 Pt II 22.148 Pt III 22.148 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict 25 May 2000, 2173 UNTS 222 22.149, 26.35 Art 13(7) 22.197 Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography 22.149(p. lxiv) Optional Protocol to the Convention on the Rights of the Child on a communications procedure (OP3-CRC) 22.195, 22.196 Art 5 22.184 Art 13 22.195 Art 13(1) 22.195 Art 13(2) 22.195 Art 13(4) 22.195 Art 13(5) 22.195 Art 13(6) 22.195 Art 14 22.195 Convention on the Rights of Persons with Disabilities (CRPD) 22.11, 22.153–22.156, 22.195, 25.67 Art 1 22.155 Art 4(3) 22.166

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Art 8 22.155 Arts 10–30 22.155 Art 28 22.55 Arts 34–39 22.155 Art 34(1) 22.173 Art 34(2) 22.163 Art 34(3) 22.165, 22.166 Art 34(4) 22.166, 22.167 Art 34(5) 22.164 Art 34(7) 22.168 Art 34(11) 22.172 Art 34(12) 22.169 Art 35(1) 22.175 Art 35(2) 22.175 Art 35(5) 22.174 Art 36(1) 22.176 Art 36(2) 22.182 Art 38 22.175, 22.211 Art 39 22.214 Arts 40–50 22.155 Art 44 12.14 Optional Protocol to the Convention on the Rights of Persons with Disabilities (OP-CRPD) 22.153, 22.156, 22.196 Art 1(1) 22.173, 22.184 Art 6 22.195 Art 6(1) 22.195 Art 6(2) 22.195 Art 6(3) 22.195 Art 6(4) 22.195 Art 7(1) 22.195

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Art 7(2) 22.195 Art 8 22.196 Convention on the Safety of United Nations and Associated Personnel, 9 December 1994, 2051 UNTS 363 (entered into force 15 January 1999) 12.26, 15.36, 26.35 Art 1(c) 15.36 Art 2(2) 12.26, 15.36, 27.78 Art 7 15.36 Art 8 15.36 Art 8(2)(b)(iii) 12.27 Art 8(2)(e)(iii) 12.27 Art 9 15.36 Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel, 8 December 2005, 2689 UNTS 59 26.35 Optional Protocol adopted 2005, in force 10 August 2010 15.36 Convention on Special Missions and the Optional Protocol concerning the Compulsory Settlement of Disputes relating thereto 1969 25.44 Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation 2010 1.25 Convention on the Transboundary Effects of Industrial Accidents 1992 24.07 Convention on the Use of Electronic Communications in International Contracts 2005 25.62 Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties 1969 Art XIII 4.22 Convention Relating to the Status of Refugees 1951 (Refugee Convention) 22.160, 23.01, 23.05, 23.20, 23.30 Art 1A(1) 23.20 Art 1A(2) 23.20, 23.21, 23.22 Art 1B 23.20 Art 1D 23.19 Art 1E 23.19 Art 1F 23.19, 23.20 Art 35 23.17, 23.29

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Art 35(2) 23.29 Art 36 23.29 1967 Protocol Relating to the Status of Refugees 23.01, 23.05, 23.20, 23.21, 23.30 Art 1 23.18 Art 2 23.18 Art II 23.17, 23.29 Covenant of the League of Nations, 28 June 1919 Art 1 8.04 Art 1(2) 8.18 Art 1(3) 8.41 Art 2 15.01 Art 3 26.04 Art 4 26.04 Art 6 8.36, 14.49 Art 6(2) 10.30, 15.40 Art 15(4) 28.09 Art 15(8) 9.25 Art 16(4) 8.36 Art 22 3.79 Art 23 5.02 Art 26(2) 8.41 Dayton Peace Agreement 1995 Annex 10 27.96, 31.188(p. lxv) Dayton Peace Agreements Annex 2, Art 5 28.51 Declaration and Programme of Action on a Culture of Peace, GA Res 53/243 (1999) 26.35, 28.01 Declaration in the Inadmissibility of Intervention and Interference in the Internal Affairs of States, GA Res 36/103 (1981) 26.35 Declaration of the 1980s as the Second Disarmament Decade, GA Res 35/46 (1980) 26.35

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Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, GA Res 1962 (XVIII) (1963) 26.35 Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction, GA Res 2749 (XXV) (1970) 26.35 Declaration of Principles for International Election Observation 2005 20.09 Declaration of the Rights of the Child 1924 22.147 Declaration of the Rights of the Child, GA Res 1386 (XIV) (1959) 22.147 Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, HCR/MMSP/2001/09, 13 December 2001 23.29 Declaration on the 1990s as the Third Disarmament Decade, GA Res 45/62 Α (1990) 26.35 Declaration on Apartheid and its Destructive Consequences in Southern Africa, GA Res S-16/1 (1989) 26.35 Declaration on the Enhancement of Cooperation between the United Nations and Regional Arrangements or Agencies in the Maintenance of International Peace and Security, GA Res 49/57 (1994) 25.69, 26.35 Declaration on the Enhancement of the Effectiveness of the Principles of Refraining from the Threat or Use of Force in International Relations, GA Res 42/22 (1987) 26.35 Declaration on the Deepening and Consolidation of International Détente, GA Res 32/155 (1977) 26.35 Declaration on the Elimination of Discrimination against Women 17.20 Declaration on the Elimination of Violence against Women 22.160 Declaration on the Enhancement of Cooperation between the United Nations and Regional Arrangements or Agencies in the Maintenance of International Peace and Security, GA Res 49/57 (1994) 25.69, 26.35 Declaration on Fact-finding by the United Nations in the Field of the Maintenance of International Peace and Security, GA Res 46/59 (1991) 13.30, 25.69, 28.01, 28.25, 28.42, 28.43 Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res 1514 (XV) 4.25, 6.29, 19.02, 22.11, 22.184, 26.24, 26.35 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty, GA Res 2131 (XX) (1965) 26.35 Declaration on International Cooperation for Disarmament, GA Res 34/88 (1979) 26.35 Declaration on International Economic Cooperation, GA Res S-18/3 (1990) 18.01 Declaration on the Maritime Zone and Agreement relating to a Special Maritime Frontier Zone 29.95

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Declaration on Measures to Eliminate International Terrorism, GA Res 49/60 (1994) 26.35 Declaration on Namibia and Programme of Action in Support of Self-Determination and National Independence for Namibia, GA Res S-9/2 (1978) 26.35 Declaration on the Preparation of Societies for Life in Peace, GA Res 33/73 (1978) 26.35 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, GA Res 43/51 (1988) 26.35, 28.01, 28.06, 28.25, 28.43, 28.58 Declaration on the Prevention of Nuclear Catastrophe, GA Res 36/100 (1981) 26.35(p. lxvi) Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, GA Res 2625 (XXV) (1970) 19.02, 25.03, 26.35, 28.47 Declaration on the Protection of All Persons from Enforced Disappearances, GA Res 47/133 (1992) 22.11, 22.158 Declaration on the Protection of Women and Children in Emergency and Armed Conflict, GA Res 3318 (XXIX) (1974) 26.35 Declaration on the Rights of Disabled Persons, GA Res 3447/XXX (1975) 22.11, 22.154 Declaration on the Rights of Indigenous People, GA Res 61/295 (2007) 22.160, 26.35 Declaration on the Rights of Mentally Retarded Persons, GA Res 2856/26 (1971) 22.154 Declaration on the Strengthening of International Security, GA Res 2734 (XXV) (1970) 26.35 Declaration on the Use of Scientific and Technological Progress in the Interests of Peace and for the Benefit of Mankind, GA Res 3384 (XXX) (1975) 26.35 Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism, GA Res 51/210 (1996) 26.35 Directive on the Assignment of Defence Counsel; Code of Professional Conduct for Defence Counsel 31.30 Directive on the Assignment of Defence Counsel, Directive No 1/94 (as amended, 11 July 2006) 31.07 Draft Articles on diplomatic protection 2006 Art 1 25.49 Art 11(b) 25.49 Draft Articles on the effect of armed conflict of treaties 16.33

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Draft Articles on the jurisdictional immunities of States and their property 25.04, 25.35 Draft Articles on the law of the non-navigational uses of international watercourses (1994) 24.05 Draft Articles on the law of transboundary aquifers (2008) 24.05 Draft Articles on the law of treaties between States and international organizations or between international organizations Art 6 9.32 Draft Articles on most-favoured-nation status (1978) 25.08 Draft Articles on nationality of natural persons in relation to the succession of States 1999 Art 20 25.08 Draft Articles on prevention of transboundary harm from hazardous activities (2001) 24.05 Draft Articles on the protection of persons in the event of disasters 21.01, 21.08 Art 10(1) 21.09 Art 10(2) 21.09 Art 12(1) 21.09 Art 13(1) 21.09 Art 13(2) 21.09 Draft Articles on the responsibility of international organizations 2011 (DARIO) 6.21, 9.61, 13.01, 13.04, 13.05, 25.08 Art 2(b) 13.05 Art 5 13.04 Art 6 13.04, 13.08 Art 7 13.09, 16.99 Art 8 9.61 Art 14 13.18 Art 17 13.04, 13.21 Art 17(1) 13.20 Art 17(2) 13.21 Art 20 13.30 Art 21 13.04, 13.33

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Art 32 13.05 Art 33(2) 13.45 Art 40 13.35 Art 45 13.36 Art 47 13.47 Art 50 13.45 Art 58 13.16 Art 59 13.16 Art 61 13.04, 13.16 Art 62 13.15 Art 64 13.05 Draft Articles on the responsibility of States for internationally wrongful acts (ARSIWA) 13.04, 25.35, 25.38, 25.49 Art 3 16.40 Art 4 13.50 Art 5 13.50(p. lxvii) Art 8 13.50 Art 13 25.49 Art 25 13.34 Art 32 8.22 Art 36 25.09 Art 44 25.09 Draft Articles on the succession of States in respect of state property, archives and debts 1981 Art 63 25.08 Draft Articles on succession of States in respect of treaties 1974 25.08 Draft Principles on the allocation of loss in the case of transboundary Harm arising out of hazardous activities 2006 24.05 ECCC Agreement and the Law establishing the Extraordinary Chambers (ECCC Law) Art 2 new 31.132, 31.133 Art 4 31.131

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Art 5 31.132 Art 6 31.132 Art 8 31.132 Art 9 new 31.128 Art 11 new 31.128 Art 13 31.131 Art 14 new 31.128 Art 16 31.130 Art 18 new 31.130 Art 19 31.130 Art 20 new 31.128, 31.130, 31.135 Art 22 new 31.130 Art 23 31.128 Art 23 new 31.129, 31.135 Art 25 31.129, 31.136 Art 26 31.129 Art 29 31.132 Art 30 31.131 Art 33 new 31.135 Art 40 new 31.133 Art 47bis 31.127 European Convention for the Peaceful Settlement of Disputes, 320 UNTS 243 28.54 European Convention for the Prevention of Torture 12.29 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221 12.29, 28.54 Art 6 16.32 Art 6(1) 12.33, 16.32, 31.189 Art 7 31.189 Art 59(2) 12.14 European Convention on Nationality 1997 23.30

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European Energy Charter 28.51 Framework Convention on Civil Defence Assistance 2000 21.04 Framework Convention for the Protection of National Minorities 12.29 Geneva Agreement in connection with the Frontier Controversy between Guyana and Venezuela 1966 28.23 Geneva Conventions 12.24, 29.88 Art 3 31.32 Additional Protocol I 12.24 Additional Protocol II 26.104, 31.32 Additional Protocols 29.88, 31.132 Geneva General Act for the Pacific Settlement of International Disputes 1928 28.21, 28.46, 28.47 Hague Convention 1899 28.44, 29.08 Arts 9–14 28.42 Art 15 28.49 ch II 28.50 Hague Convention 1907 28.44, 29.08 Arts 9–36 28.42 Art 35 28.50 Art 37 28.49 Art 43 28.50 Hague Convention for Protection of Cultural Property in the Event of Armed Conflict 1954 31.132 Art 7 31.132 House Rules for Detainees (June 1995) 31.06 ICC Regulations 31.47 reg 1(1) 31.47 ICC Regulation of the Office of the Prosecutor (OTP) reg 1(2) 31.47 ICC Regulations of the Registry reg 1(1) 31.47 ICC Staff Rules and Regulations 31.47

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ICJ Practice Direction I 29.438, 29.441 ICJ Practice Direction II 29.432 ICJ Practice Direction III 29.432 ICJ Practice Direction IV 29.448 ICJ Practice Direction VII 29.439 ICJ Practice Direction IX 29.404, 29.435, 29.438, 29.445 ICJ Practice Direction IXbis 29.360, 29.438, 29.445 ICJ Practice Direction IXter 29.438, 29.445(p. lxviii) ICJ Practice Direction IXquater (adopted April 2013) 29.355, 29.438, 29.445 ICJ Practice Direction XI 29.358, 29.448 ICTR Rules of Procedure and Evidence 31.116 r 11bis 31.37, 31.40 r 15bis 31.28 r 28 31.40 ICTY Rules of Procedure and Evidence 31.03, 31.10 r 27(A) 31.04 r 4 31.03 rr 8–11 31.14 r 11bis 31.14, 31.19, 31.188 r 15bis 31.04 r 15ter 31.04 r 18(1) 31.04 r 23 31.19 r 28 31.19 r 34 31.06 r 56 31.10 r 58 31.10 r 59 31.10 r 61D 31.10 r 91 31.13

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r 103 31.12 r 104 31.12 Inter-American Convention to Facilitate Disaster Assistance 1991 21.01, 21.04 Inter-American Democratic Charter 28.55 Internal Rules of the Extraordinary Chambers of the Courts of Cambodia (ECCC Rules) 31.128 r 6(4) 31.131 r 11 31.131 r 11(5) 31.128 r 12 31.131 r 12bis 31.131 r 12ter 31.131 rr 23 et seq 31.131 r 23quarter (4) 31.128 r 31 31.128 r 35(6) 31.128 r 50 31.130 r 55 31.129 r 63(4) 31.128 r 72 31.129 r 72(4)(d) 31.129 r 74 31.128 r 98(4) 31.128 International Atomic Energy Agency (IAEA) Safeguards Agreement 12.04 International Chamber of Commerce Rules of Optional Conciliation, 1998 28.47 International Convention against the Recruitment, Use, Financing and Training of Mercenaries, 4 December 1989, 2163 UNTS 75 26.35 International Convention against the Taking of Hostages, 17 December 1979 (entered into force on 3 June 1983), 1316 UNTS 205 1.25, 12.03, 26.35 International Convention for the Prevention of Pollution of the Sea by Oil 1954 24.10 International Convention for the Prevention of Pollution from Ships 1973 24.10

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International Convention for the Protection of All Persons from Enforced Disappearance 2006, 2716 UNTS 3 (CPED) 22.11, 22.47, 22.157–22.159, 22.195, 26.35 Arts 1–25 22.159 Arts 26–36 22.159 Art 26(1) 22.162, 22.165, 22.166, 22.167, 22.173 Art 26(2) 22.164 Art 26(4) 22.168 Art 26(7) 22.172 Art 27 22.159 Art 29(1) 22.174, 22.175 Art 29(3) 22.176 Art 30(1) 22.213 Art 30(2) 22.213 Art 30(4) 22.213 Art 31 22.184 Art 31(1) 22.184 Art 33 22.195, 22.196 Art 33(1) 22.195 Art 34 22.213 Art 36(2) 22.195 Arts 37–45 22.159 Pt I 22.159 Pt II 22.159 Pt III 22.159 International Convention for the Regulation of Whaling 29.95 Art VII 29.368 International Convention for the Suppression of Acts of Nuclear Terrorism, 13 April 2005 (entered into force on 7 July 2007) 1.25, 12.03 International Convention for the Suppression of the Financing of Terrorism, 9 December 1999 (entered into force on 10 April 2002), 2178 UNTS 229 1.25, 12.03, 25.54, 25.67(p. lxix)

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International Convention for the Suppression of Terrorist Bombings, 15 December 1997 (entered into force on 23 May 2001), 2149 UNTS 256 12.03, 25.54, 26.35 International Convention for the Suppression of the Traffic in Women and Children 1921 22.147 International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965 (CERD)(ICERD) 12.29, 22.85, 22.136–22.138, 22.142, 25.67, 29.95 Arts 1–7 22.138 Art 6(4) 22.164 Arts 8–16 22.138 Art 8(1) 22.162, 22.165, 22.167 Art 8(5)(a) 22.168 Art 9(1) 22.174, 22.175, 22.176 Art 9(2) 22.214 Arts 11–13 22.190 Art 11 22.190 Art 14(1) 22.184 Art 14(7)(b) 22.197 Art 15 22.184 Arts 17–25 22.138 Art 20(2) 22.207 Art 22 28.39, 22.138 Pt I 22.138 Pt II 22.138 Pt III 22.138 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW) 22.11, 22.150–22.152 Arts 1–6 22.152 Art 7 22.152 Arts 8–35 22.152 Art 33 22.119 Arts 36–56 22.152

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Arts 57–63 22.152 Arts 72–78 22.152 Art 72(1)(a) 22.173 Art 72(1)(b) 22.163, 22.165 Art 72(2)(a) 22.164, 22.167 Art 72(2)(b) 22.165 Art 72(5)(b) 22.168 Art 72(7) 22.172 Art 72(8) 22.169 Art 73(1) 22.174, 22.175, 22.176 Art 73(2) 22.174 Art 74(8) 22.214 Art 75 22.171 Art 76 22.190 Art 76(1) 22.190 Art 77 22.184 Art 77(1) 22.184 Arts 79–84 22.152 Arts 85–93 22.152 Pt I 22.152 Pt II 22.152 Pt III 22.152 Pt IV 22.152 Pt V 22.152 Pt VI 22.152 Pt VII 22.152 Pt VIII 22.152 Pt IX 22.152 International Convention on the Simplification and Harmonization of Customs Procedures (as amended) 21.04

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International Convention on the Suppression and Punishment of the Crime of Apartheid, 30 November 1973, 1015 UNTS 243 22.11, 26.35 International Court of Justice, Rules of the Court, 14 April 1978 (Rules of Court) 29.387, 29.437 Art 1.1 29.05 Art 3(1) 29.269 Art 3(2) 29.274 Art 3(4) 29.274 Art 4(1) 29.04 Art 4(2) 29.04 Art 4(3) 29.274 Art 7(2) 29.28, 29.271, 29.318 Art 8 29.04 Art 17 29.446 Art 17(1) 29.454 Art 17(2) 29.454 Art 18(2) 22.198 Art 19 16.03 Art 21 31.65 Art 22 29.199 Art 22(1)–(3) 29.166 Art 22(1) 29.167 Art 22(4) 29.166 Art 26 29.168 Art 26(1)(j) 29.217 Art 26(3) 29.217 Art 28(4) 29.198 Art 31 29.217, 29.298, 29.446 rr 32–36 10.33 Art 32(5) 2.85

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Art 32(6) 2.85(p. lxx) Art 32(7) 2.85 Art 34 29.326 Art 34(1) 29.327 Art 34(2) 29.327 Art 35 29.52, 29.217, 29.446 Art 35(1) 29.31 Art 35(3) 29.35 Art 35(4) 29.34 Art 35(5) 29.36 Art 36 29.446 r 38 10.33 Art 38(5) 29.293 Art 40(1) 29.293 Art 40(2) 29.297 Art 40(3) 29.297 Art 42(3) 16.03 Art 43 29.85, 29.88, 29.98, 29.99, 29.100, 29.438 Art 43(1) 29.99 Art 43(2) 29.99 Art 44 29.446 Art 44(4) 29.402 Art 45 29.436, 29.446 Art 46 29.446 Art 51 29.446 Art 52 29.438 Art 53 29.446 Art 53(1) 29.90 Art 56 29.445

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Art 56(1) 29.352, 29.354, 29.442 Art 56(2) 29.442, 29.443 Art 56(3) 29.442 Art 56(4) 29.359, 29.381, 29.383 Art 57 29.346, 29.385, 29.389 Art 58 29.446 Art 59 29.446 Art 60(1) 29.448 Art 61(1) 29.307 Art 62(1) 29.410 Art 62(2) 29.406, 29.407 Art 63 29.389, 29.446 Art 64 29.388 Art 65 29.388 Art 67 29.402, 29.408, 29.415 Art 69 2.92, 29.437 Art 71(4) 29.131 Art 74(4) 29.402 Art 76(1) 29.185 Art 77 29.184 Art 79 29.438, 29.446 Art 79(1) 29.431 Art 79(2) 29.431 Art 80 29.438, 29.446 Art 81(2) 29.297 Art 88 29.446 Art 89 29.446 Art 91 29.446 Art 92 29.446

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Art 102 29.148 Art 102(2) 29.112, 29.144 Art 102(3) 29.112 Art 103 29.131, 29.144 Art 104 29.128 Preamble 29.438 International Covenant on Civil and Political Rights 1966 (ICCPR) 12.05, 12.29, 19.08, 22.11, 22.129, 22.130, 22.131, 22.135, 22.188, 22.198, 25.67, 29.88, 29.93, 29.95 Art 1 12.07, 19.02, 22.131 Arts 2–5 22.131 Art 2(1) 22.132 Arts 6–27 22.131 Art 14 16.32 Art 19 20.03 Art 21 20.03 Art 22 20.03 Art 25 19.03, 19.04, 20.03 Arts 28–45 22.131 Art 28 22.173 Art 28(1) 22.162 Art 28(2) 22.165 Art 29(3) 22.165 Art 30(4) 22.164 Art 31(2) 22.167 Art 32(1) 22.168 Art 35 22.169 Art 36 22.172 Art 37(2) 22.170 Art 37(3) 22.171 Art 40(1) 22.174, 22.175

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Art 40(2) 22.176 Art 40(4) 22.175, 22.179, 22.192 Arts 41–43 22.190 Art 41 22.190 Art 41(1) 22.190 Art 45 22.214 Arts 46–47 22.131 Arts 48–53 22.131 Pt I 22.131 Pt II 22.131 Pt III 22.131 Pt IV 22.131 Pt V 22.131 Pt VI 22.131 Optional Protocols 22.129 First Optional Protocol to the International Covenant on Civil and Political Rights (OP1-ICCPR) 22.185, 22.188 Art 1 22.184, 22.185(p. lxxi) Art 5(4) 22.187 Art 10(1) 22.190 Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty 22.132, 22.185 Art 1(1) 22.132 Art 1(2) 22.132 International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) 12.05, 12.29, 22.11, 22.129, 22.130, 22.133, 22.135, 22.161, 22.164, 25.67 Art 1 12.07, 19.02, 22.133 Arts 2–5 22.133 Arts 6–15 22.133 Arts 16–25 22.133 Art 16(1) 22.174

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Art 17(1) 22.175 Art 17(2) 22.174 Art 18 22.175 Arts 26–31 22.133 Pt I 22.133 Pt II 22.133 Pt III 22.133 Pt IV 22.133 Pt V 22.133 Optional Protocol (OP-ICESCR) 17.41, 22.47, 22.129, 22.134, 22.195, 22.196 Art 2 22.184 Art 10 22.190 Art 11 22.195 Art 11(1) 22.196 Art 11(2) 22.195 Art 11(3) 22.195 Art 11(5) 22.195 Art 11(6) 22.195 Art 11(8) 22.195, 22.196 Art 12(1) 22.195 Art 12(2) 22.195 International Criminal Court Rules of Procedure and Evidence 31.47, 31.72, 31.81 r 11 31.69 r 13 31.70 rr 16–19 31.70 rr 20–22 31.70 r 21 31.67 r 21(2) 31.70 r 22 31.70 r 32 31.68

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r 60 31.67 rr 89–93 31.76 r 90 31.84 r 119 31.72 r 130 31.67 r 165 31.72 r 199 31.67 International Maritime Organization Convention 1946 28.39 International Plant Protection Convention, 6 December 1951, 150 UNTS 67 Art IX 28.57 Kampala Convention 2009 23.30 Kyoto Protocol 1997 28.47 Lomé Peace Agreement, signed 7 July 1999 31.110, 31.115 Art 9 31.110 Art XXVI 31.115 Manila Declaration on the Peaceful Settlement of International Disputes, GA Res 37/10 (1982) 25.69, 26.35, 28.01, 28.02, 28.04, 28.06, 28.13, 28.25, 28.47, 28.54 Mexico–US Convention for the Recovery and Return of Stolen Vehicles and Aircraft 1981 Art VIII 28.39 MICT Rules of Procedure and Evidence r 150 31.20 r 151 31.20 Model Agreement concerning Measures to Expedite the Import, Export and Transit of Relief Consignments and Possession of Relief Personnel in the Event of Disaster and Emergencies 1995 21.24 Model UNHCR Cooperation Agreement, UNHCR/IOM/79/89, June 1989 Art VIII(7) 16.41 Model UN Status of Forces Agreement, UN Doc A/45/594, 9 October 1990 (Model SOFA) 16.81, 16.85, 16.86, 16.87, 16.89, 16.94, 16.99, 16.100, 16.101 Art 46 16.95 Art 47a 16.96 s 23 16.41

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para 47b 16.101 para 48 16.101 para 49a 16.102 para 49b 16.102(p. lxxii) Montreal Convention 29.88 Montreal Protocol on Substances that Deplete the Ozone Layer 1987, 1989 UNTS 3 9.43, 28.47 Art 2(9) 24.15 Art 10(1) 24.15 NATO Agreement, 4 April 1949, Art 4, 34 UNTS 243 28.39 Order to the Registrar to Separate Convicted and Non-Convicted Detainees Held in the Detention Unit (15 June 2006) 31.06 Pact of Bogata 28.54 Arts IX–XIV 28.44 Art XXXVIII 28.49 Pact of the League of Arab States, 22 March 1945, 70 UNTS 237 28.45, 28.54 Permanent Court of Arbitration Optional Conciliation Rules 1996 28.47 Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, 2241 UNTS 480 26.35 Protocol on the Privileges and Immunities of the International Seabed Authority 1998, 2004 UNTS 133 Art 3 9.43, 11.43 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention Against Transnational Organized Crime, 15 November 2000, 2237 UNTS 319 26.35 Regulations for the Establishment of a Complaints Procedure for Detainees (April 1995) 31.06 Regulations on the Procedure of International Conciliation Art 1 28.46 Relationship Agreement between the United Nations and the International Criminal Court 16.108 Art 12 7.17 Art 16 16.68, 16.108

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Art 19 16.108 Relationship Agreement between the United Nations and the International Fund for Agricultural Development 9.32 Art XIII, para 2 15.34, 29.113 Relationship Agreement between the United Nations and the United Nations Industrial Development Organization (UNIDO) 9.32 Relationship Agreement between the United Nations and the World Intellectual Property Organization, GA Res 3346 (XXIX) (1974), 1974 UNTS 405 7.09, 9.32 Revised General Act for the Settlement of Disputes 1949 28.39, 28.49 Rules Covering the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal (ICTR) 31.30 Rules Governing the Detention of Persons awaiting Trial or Appeal before the Tribunal or otherwise Detained on the Authority of the Tribunal (ICTY) (21 July 2005) 31.06 San Francisco Declaration, 7 June 1945 3.55 SCSL Rules of Procedure and Evidence r 16bis 31.105 r 45 31.107 Sirte Declaration 9 September 1999 28.54 Special Court Agreement 2002 31.98 Art 2(2) 31.105 Art 4 31.108 Art 6 31.117, 31.118 Art 7 31.119 Art 7(1) 31.106 Art 7(2) 31.106 Art 10 31.101, 31.102 Art 19(4) 31.104 Special Tribunal for Lebanon Rules of Procedure and Evidence Art 20 31.154 Pt 5, s 4 31.145 r 4(1) 31.155 r 11 31.150, 31.151

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r 11(A) 31.150 r 12A 31.150 r 13 31.154 r 15 31.149 rr 20–21 31.154 r 21(A) 31.154 r 22 31.149 r 57C 31.149 r 57D 31.148 r 57F 31.148 r 57I 31.148 r 60bis 31.151(p. lxxiii) r 68(C) 31.150 State Agreement between Spain and the World Tourism Organization, 1047 UNTS 85 Art 3 16.13 Status of Forces Agreement between the United Nations and the Government of the Republic of South Sudan concerning the United Nations Missions in South Sudan (SOFA), 2011 16.94 Statute of the Administrative Tribunal of the International Labour Organization (Statute of the ILOAT) Art XII 15.34, 29.113, 29.114, 29.214 Annex, Art XII 15.34, 29.113, 29.114, 29.214 Statute of the International Civil Service Commission (ICSC Statute) Art 2 15.18 Art 3 15.18 Art 4 15.18 Art 5 15.18 Art 10 15.18 Art 11 15.18 Art 13 15.18 Art 14 15.18

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Statute of the International Court of Justice, 18 April 1946 (ICJ Statute) 1.17, 2.45, 3.76, 8.32, 8.66, 8.89, 12.06, 12.27, 15.58, 28.41, 29.90, 29.326, 29.387, 29.388, 29.437, 31.47 Art 1 28.52 Art 2 11.08 Art 3(1) 2.44, 29.31–29.38, 31.48 Art 3(2) 31.48 Art 3(3) 29.336, 29.341 Art 3(4) 29.336 Art 3(5) 29.341 Arts 4–12 3.72 Art 4 8.81, 29.05, 29.08 Art 4(1) 2.44 Art 4(2) 2.44 Art 4(3) 29.08 Art 5 2.47 Art 5(2) 2.44 Arts 6–8 31.179 Art 7 15.61 Art 8 10.32, 10.59, 29.05 Art 9 2.44, 31.68 Art 10 10.08, 10.60 Art 10(1) 2.45, 3.54, 10.32, 10.59 Art 12(1) 29.15 Art 12(3) 2.46 Art 12(4) 2.46 Art 13 9.12 Art 13(b) 22.22 Art 13(1) 2.44 Art 13(2) 15.61

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Art 14 3.72 Art 16 9.12, 12.15, 29.329, 29.330, 29.331, 29.336 Art 16(1) 29.333, 29.334, 29.337, 29.338, 29.341 Art 16(2) 29.337, 29.339, 29.340, 29.341 Art 17 29.317, 29.329 Art 17(1) 29.320 Art 17(2) 29.318, 29.319, 29.320, 29.321, 29.322, 29.324 Art 17(3) 29.322 Art 18(2) 15.61 Art 19 16.77, 29.230 Art 20 29.04 Art 21(2) 29.166, 29.181, 29.200 Art 22(1) 29.167, 31.48 Art 24 29.324, 29.329 Art 24(1) 29.324 Arts 26–29 29.453 Art 26(1) 6.15 Art 27 29.181 Art 30(1) 29.198 Art 31 29.67 Art 31(1) 29.21 Art 31(2) 29.22, 29.63 Art 31(3) 29.23, 29.63, 29.74 Art 31(4) 29.122 Art 31(5) 29.63, 29.67, 29.71, 29.72, 29.73, 29.84 Art 31(6) 29.28, 29.271, 29.273 Art 32(5) 15.13, 29.274 Art 32(7) 14.20 Art 33 29.226, 29.243

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Art 34 29.88, 29.164 Art 34(1) 13.28 Art 34(2) 7.39, 29.93, 29.99 Art 34(3) 29.93, 29.99, 29.102 Art 35 8.32 Art 35(1) 29.291 Art 35(2) 3.72, 8.81, 14.39, 29.291, 29.309 Art 35(3) 8.81, 29.290 Art 36(1) 14.39, 28.52, 31.61 Art 36(2) 14.39, 29.281, 31.61, 31.64 Art 36(4) 15.61 Art 38 26.34 Art 38(1)(d) 31.65 Art 40 31.61 Art 40(1) 14.39 Art 40(3) 15.61 Art 41 29.445 Art 41(2) 29.184(p. lxxiv) Art 42 29.230, 29.292 Art 42(3) 16.77, 29.301 Art 43(2) 29.435 Art 43(5) 29.392 Art 44 29.410 Art 48 29.392 Art 49 29.410, 29.411, 29.412 Art 50 6.15, 14.20, 29.408, 29.414, 29.415, 29.419, 29.422 Art 51 29.392 Art 52 29.296, 29.445 Art 53(1) 29.92

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Art 59 31.65 Art 62 29.91, 29.92, 29.299, 31.48 Art 62(2) 29.158 Art 63 29.86, 29.88, 29.89, 29.99, 29.297 Art 63(1) 29.85, 29.88, 29.89, 29.102 Art 63(2) 29.86 Art 65 29.122, 29.125, 31.64 Art 65(1) 29.116, 31.62 Art 65(2) 15.65, 29.94, 29.128, 29.132 Art 66 29.132, 29.148, 29.150 Art 66(1) 29.87, 29.146 Art 66(2) 29.128, 29.145, 29.146, 29.147 Art 66(3) 29.147 Art 67 15.61 Art 69 3.72 Art 70 15.61 Statute of the International Criminal Court (Rome Statute 1998) 7.17, 16.05, 16.109, 25.82, 31.59, 31.92, 31.179 Preamble 31.49 Art 2 7.17, 31.51 Art 5(2) 31.50, 31.75, 31.83, 31.92 Art 6 31.72 Art 7 31.72 Art 8 31.72 Art 8(1) 31.82 Art 8(2)(b)(iii) 27.78, 31.50, 31.83 Art 8(2)(b)(vii) 31.83 Art 8(2)(b)(xvii) 31.96 Art 8(2)(b)(xviii) 31.96 Art 8(2)(b)(xix) 31.96

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Art 8(2)(e) 31.96 Art 8(2)(e)(iii) 27.78 Art 8(2)(e)(xiii) 31.96 Art 8(2)(e)(xiv) 31.96 Art 8(2)(e)(xv) 31.96 Art 8bis 31.72 Art 9 31.72 Art 10 31.65 Art 11(1) 31.76 Art 11(2) 31.76 Art 12 31.78 Art 12(2) 31.55 Art 12(3) 31.76 Art 13 31.71 Art 13(a) 31.77 Art 13(b) 31.50, 31.55, 31.77 Art 13(c) 31.77 Art 14 31.77 Art 15 31.69, 31.77 Art 15bis 31.95 Art 15ter 31.95 Art 16 31.50, 31.55, 31.56, 31.95 Art 17 31.81, 31.82 Art 17(1)(a) 31.82 Art 17(1)(b) 31.82 Art 17(1)(d) 31.82 Art 17(3) 31.82 Art 21 31.72 Art 21(1) 31.72, 31.75

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Art 21(2) 31.65 Art 21(3) 31.65, 31.75 Art 22(2) 31.64 Art 25 31.76 Art 26 31.76 Art 27(1) 16.108 Art 34 31.66 Art 36 31.73 Art 36(1) 31.68 Art 36(2)(a) 31.68 Art 36(2)(b) 31.68 Art 36(3)(a) 31.68 Art 36(3)(b)(i) 31.68 Art 36(5) 31.68 Art 36(7) 31.58 Art 36(8)(a) 31.68 Art 36(8)(b) 31.68 Art 36(9)(a) 31.68 Art 36(9)(b) 31.68 Art 36(9)(c) 31.68 Art 38(1) 31.67 Art 38(3)(a) 31.67 Art 38(3)(b) 31.67 Art 38(4) 31.67 Art 39(1) 31.68 Art 39(2)(b)(i) 31.68 Art 39(2)(b)(ii) 31.68 Art 39(2)(b)(iii) 31.68 Art 39(3) 31.68

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Art 39(4) 31.68 Art 41 31.68 Art 41(2)(a) 31.68 Art 42(2) 31.69, 31.70 Art 42(4) 31.69 Art 42(9) 31.69 Art 43(1) 31.70 Art 43(2) 31.70 Art 43(4) 31.70(p. lxxv) Art 43(5) 31.70 Art 43(6) 31.70 Art 44(4) 31.69 Art 46(1) 31.68, 31.69 Art 46(2)(a) 31.68 Art 46(2)(b) 31.69 Art 46(2)(c) 31.69 Art 46(3) 31.70 Art 47 31.68 Art 48 31.71 Art 51(1) 31.72 Art 51(4) 31.72 Art 53 29.90 Art 54(1)(a) 31.69 Art 54(3)(e) 31.53 Art 68(1) 31.70 Art 68(3) 31.76, 31.156 Art 73 16.109 Art 74(4) 31.65 Art 75 31.157

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Art 79 31.73 Art 86 31.88 Art 87(5) 31.50, 31.73 Art 87(5)(b) 31.57 Art 87(6) 16.110 Art 87(7) 31.50, 31.57 Art 98 16.110 Art 98(1) 16.108 Art 98(2) 16.108 Art 99 31.90 Art 112 31.71 Art 112(b) 31.73 Art 112(d) 31.73 Art 112(1) 31.71 Art 112(2)(d) 31.84 Art 112(2)(f) 31.73 Art 112(3) 31.71 Art 112(4) 31.71 Art 112(6) 31.50 Art 112(8) 31.85, 31.86 Art 115 31.50, 31.84 Art 115(b) 31.87 Art 116 31.84 Art 117 31.85 Art 119 31.61 Art 119(1) 31.61 Art 119(2) 31.50, 31.61 Arts 121–128 31.50 Art 121(1) 31.59, 31.72

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Art 121(3) 31.97 Art 121(4) 31.59, 31.97 Art 121(5) 31.95, 31.96 Art 121(7) 31.59 Art 122(1) 31.59 Art 123 31.59 Art 124 31.97 Arts 125–128 31.59 Art 127(1) 31.80 Pt 9 16.109, 31.76, 31.88 Pt 10 31.91 Statute of the International Criminal Tribunal for Rwanda 31.25, 31.38 Art 1 31.32 Art 2 31.32 Art 3 31.32 Art 4 31.32 Art 5 31.32 Art 7 31.32 Art 8(2) 31.36 Art 10 31.28 Art 11 31.28 Art 12(2) 31.28 Art 12ter 31.28 Art 23(1) 31.36 Art 26 31.35 Art 28 31.34 Art 29(1)–(3) 31.27 Art 32 31.38 Statute of the International Criminal Tribunal for the former Yugoslavia 6.107 Arts 2–5 31.09

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Art 6 31.09 Art 7(3) 31.177 Art 7(4) 31.177 Art 8 31.09 Art 9 31.14 Art 9(1) 31.14 Art 9(2) 31.14 Art 1092) 31.14 Art 11 31.04 Art 12 31.04 Art 12(2) 31.04 Art 12(4) 31.04 Art 13 31.04 Art 13quater 31.04 Art 16(4) 31.05 Art 17 31.06 Art 27 31.12 Art 29 16.78, 31.10 Art 30(1)–(3) 31.07 Art 31 31.03 Art 32 31.16 Art 34 31.15 Statute of the International Law Commission 25.51 Art 1 25.10 Art 1(1) 25.04 Art 1(2) 15.04 Art 3 25.10(p. lxxvi) Art 4 25.10 Art 9(1) 25.10

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Art 10 25.10 Art 15 25.06 Art 16 25.07 Art 16(c) 25.21 Arts 18–24 25.07 Art 18 25.16 Art 20 25.33 Art 23 25.34 Statute of the International Residual Mechanism for Criminal Tribunals (MICT Statute) Art 1(2) 31.42 Art 1(4) 31.20, 31.42 Art 1(5) 31.43 Art 3 31.21, 31.43 Art 4 31.21 Art 5(2) 31.42 Art 6(5) 31.42 Art 8 31.21, 31.43 Art 8(4) 31.24, 31.46 Art 9(1) 31.21, 31.43 Art 10(1)(a) 8.83, 31.21, 31.43 Art 10(3) 31.21 Art 11 31.21, 31.43 Art 14 31.21, 31.43 Art 14(4) 31.24, 31.46 Art 15(1) 31.21 Art 15(3) 31.24, 31.46 Art 24 31.42 Art 26 31.20 Art 27 31.20, 31.42

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Art 27(2) 31.20, 31.42 Art 28(3) 31.20 Art 29 16.78 Art 30 31.24, 31.46 Statute of the Office of the United Nations High Commissioner Art 1 11.52 Art 11 11.52 Art 13 11.52 Art 21 11.52 Art 22 11.52 Statute of the Office of the United Nations High Commissioner for Refugees (Statute of the UNHCR) 23.01, 23.18 Art 1 23.02, 23.17, 23.25, 23.32 Art 2 23.17 Art 3 23.02 Art 4 23.05 Art 5 23.01 Art 6 23.18 Art 6A 23.18 Art 6(A)(i) 23.19 Art 6(A)(ii) 23.22 Art 6(B) 23.19 Art 7 23.19 Art 7(c) 23.19 Art 8 23.17, 23.27, 23.28 Art 8(a) 23.29, 23.30 Art 9 23.17, 23.26 Art 10 23.04, 23.41 Art 11 23.02 Art 12 23.03

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Art 13 23.02, 23.09, 23.11 Art 16 23.12 Art 18 23.41 Art 19 23.16 Art 20 23.41 Statute of the Permanent Court of International Justice 1.17 Art 16 29.331 Statute of the Residual Special Court for Sierra Leone Art 1(2) 31.123 Art 7 31.123 Art 12 31.122 Art 12(2) 31.122 Art 14 31.122 Art 15 31.122 Statute of the River Uruguay 1975 28.41 Arts 7–12 28.39 Statute of the Special Court for Sierra Leone Art 1 31.109, 31.110, 31.111 Art 2 31.104 Art 6 31.110 Art 7 31.113 Art 8 31.114 Art 12 31.105 Art 14 31.116 Art 15 31.106 Art 19 31.116 Art 20 31.116 Art 22 31.116 Statute of the Special Tribunal for Lebanon Art 1 31.150, 31.151

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Art 2 31.153 Art 3 31.153 Art 3(1) 31.153 Art 3(2) 31.153 Art 4 31.155 Art 4(1) 31.154, 31.155 Art 4(2) 31.154, 31.155 Art 4(3) 31.155 Art 13(1) 31.148, 31.149 Art 13(2) 31.148 Art 17 31.156, 31.160 Art 18(1) 31.151 Art 20(2) 31.156 Art 22 31.157(p. lxxvii) Art 22(2)–(3) 31.157 Statute of the United Nations Administrative Tribunal (Statute of UNAT) Art 10(6) 29.112 Art 11 15.34 Art 14 29.210 Statute of the United Nations Appeals Tribunal (Statute of UNAT2) 15.34, 29.214 Art 2(5) 15.34 Art 2(10) 29.214 Art 3(1) 15.34 Art 3(3) 15.34 Art 3(4) 15.34 Art 4 15.34 Art 8(3) 15.34 Art 9(1) 15.34 Art 10(1) 15.34 Art 10(5) 15.34

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Art 11 15.34 Art 11(4) 15.34 Statute of the United Nations Dispute Tribunal (Statute of the UNDT) 15.32 Annex 1 15.34 Art 4(1) 15.34 Art 4(2) 15.34 Art 4(3) 15.34 Art 4(4) 15.34 Art 5 15.34 Art 8 15.33 Art 9 15.34 Art 10(3) 15.34 Art 10(5) 15.34 Art 10(9) 15.34 Art 11(3) 15.34 Statute of the United Nations Institute for Training and Research 25.74 Statute of the United Nations Joint Inspection Unit Art 1(2) 14.24, 15.19 Art 2 14.24 Art 4 14.24 Art 5(2) 14.24 Art 9 14.24 Art 10 14.24 Art 11 14.24 Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations 1988 21.04 Art 1(6) 21.01 Art 4(5) 21.09 Art 4(8) 21.09 Treaty between Great Britain and the United States relating to Boundary Waters and Boundary Questions, signed at Washington, 11 January 1909, 208 CTS 213 28.41

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Treaty concerning the Establishment of the Republic of Cyprus 1960, 382 UNTS 10 Art 10 28.39 Treaty establishing the European Economic Community 298 UNTS 11, UN Reg No I-4300 Art 113 29.97 Art 238 29.97 Treaty establishing the Organization of Eastern Caribbean States, 18 June 1981, 1338 UNTS 97 Art 14(3) 28.57 Annex A, para 6 28.57 Treaty for Conciliation, Judicial Settlement and Arbitration between the United Kingdom and Switzerland, 1965 Ch IV 28.49 Treaty of London, 5 May 1949, 87 UNTS 103 28.54 Treaty of Versailles, 28 June 1919, 112 BFSP 1, [1919] UKTS 4, 225 CTS 188 1.10 Treaty on European Union [1992] OJ C191/1 Art 21(2) 28.55 Treaty on the Functioning of the European Union (TFEU) [2008] OJ C115/47 (signed 13 December 2007) Art 216(1) 29.97 Pt V 29.97 Treaty on the Non-Proliferation of Nuclear Weapons 12.04, 26.35, 29.95 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 27 January 1967, 610 UNTS 205 26.35 Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil Thereof, 11 February 1971, 955 UNTS 115 26.35 UNCITRAL Arbitration Rules 28.50 Art 6(3) 28.50 Art 12 28.50 UNCITRAL Conciliation Rules, 1980 28.47(p. lxxviii) UNDP Standard Basic Assistance Agreement, [1973] UN Juridical YB 2 Art IX 16.63

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UNESCO Constitution Art I(1) 7.27 Art II(1) 7.18 Art II(2) 7.23 UNESCO Convention Art II(5) 8.38 UNHCR Model Cooperation Agreement, MNW24/10/01 23.16 UNICEF Model Basic Cooperation Agreement, E/ICEF/BCA, July 1992 Arts VII–XV 16.63 Art VII 16.63 Art X(3) 16.35 UNITAR Model Rules for Disaster Relief 1982 21.07 UNJSPR Regulations Art 25 15.29 Art 54 15.29 UNMIK Regulation 1999/1, 25 July 1999 11.30, 31.161, 31.165 s 1.1 11.30 s 2 12.29 UNMIK Regulation 1999/6 31.161 UNMIK Regulation 23/1999 31.165 UNMIK Regulation 1999/24, 12 December 1999 31.165 s 1.3 12.29 UNMIK Regulation 2000/6 31.161 UNMIK Regulation 2000/34 31.161 UNMIK Regulation 2000/64 31.161, 31.163 para 1 31.164 para 2 31.164 para 2.1(c) 31.163 UNMIK Regulation 2001/1 31.167 UNMIK Regulation 9/2001 31.165 UNMIK Regulation 24/2003 31.165

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UNMIK Regulation 2006/12 s 17 12.29 UNTAET Regulation 1999/1 11.30, 31.173 s 1.1 11.31 Art 3 31.180 UNTAET Regulation 1999/3 on the Establishment of a Transitional Judicial Service Commission, 3 December 1999 27.110 UNTAET Regulation 2000/11 31.174 para 10.2 31.181 para 10.4 31.174 UNTAET Regulation 2000/14 31.174 UNTAET Regulation 2000/15 para 1.3 31.178 para 2.2 31.181 paras 4–7 31.179 paras 8–9 31.181 para 10.1 31.179 paras 11–21 31.179 para 22.1 31.175 para 22.2 31.175 UNTAET Regulation 2000/16 31.176 UNTAET Regulation 2000/17 on the Prohibition of Logging Operations and the Export of Wood from East Timor, 8 June 2000 27.110 UNTAET Regulation 2001/1 on the Establishment of a Defense Force for East Timor, 31 January 2001 27.110 UNTAET Regulation 2001/10 on the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor of 13 July 2001 27.110, 31.183 para 24.5 31.183 para 32 31.183 UNU Charter 25.78 Art I, para 8 25.79 Art IX, para 2bis 25.79

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UNWTO Relationship Agreement Art 1 7.36 Art 3 7.37 Art 9 7.40 Art 17 7.37 United Nations Convention against Corruption 2003 1.25 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substance 1988 29.89 United Nations Convention against Transnational Organized Crime, 15 November 2000, 2225 UNTS 209 26.35 United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) 25.63 United Nations Convention on the Jurisdictional Immunities of States and their Property 2004 25.38, 25.44 Art 7(2) 16.28, 16.29 United Nations Convention on the Law of the Sea, 10 December 1982 (UNCLOS) 11.43, 12.05, 25.51, 25.65, 25.66, 25.67, 26.112, 28.39, 28.42, 28.47, 28.52, 29.88, 29.89, 29.93, 29.285 Annex V, Art 198 28.48 Annex VII, Art 3 28.50 Annex VIII, Art 3 28.50 Annex XI, Art 5 13.01(p. lxxix) Art 93 16.46 Art 176 9.04, 11.43 Art 282 29.281 Art 283 28.38 Art 286 28.57 United Nations Flag Code Art 4 6.23 United Nations Model Rules for the Conciliation of Disputes between States, GA Res 50/50 (1995) 25.69, 28.47 Universal Declaration of Human Rights (UDHR) 12.29, 22.11, 22.68, 22.125, 22.126, 22.127, 19.08, 26.33 Art 21 19.03

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Art 21(1) 20.03 US–Canada Air Quality Agreement 1991 28.41 Vienna Convention for the Protection of the Ozone Layer Art 8 24.15 Art 9 24.15 Art 10 24.15 Vienna Convention on Consular Relations, 23 April 1963 29.89 Art 26 16.33 Art 27 16.33 Optional Protocol 29.281 Vienna Convention on Diplomatic Relations, 18 April 1961 16.08, 16.67, 31.132 Art 4 16.51 Art 8 16.26, 16.51 Art 9 16.51, 16.57 Art 27 16.46 Art 29 16.54, 16.66 Art 30 16.66 Art 31 16.54, 16.66, 29.234 Art 37(1) 16.66 Art 38 16.26 Art 38(1) 16.67 Art 44 16.33 Art 45 16.33 Optional Protocol Art II 29.281 Vienna Convention on the Law of Treaties 1969, 1155 UNTS 331 (VCLT) 15.57, 22.198, 22.200, 22.201, 22.202, 22.206, 28.47 Art 5 12.10 Art 19 22.209 Art 19(3) 22.199 Art 20(5) 15.57

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Art 24(1) 31.142 Art 30 16.109 Arts 31–32 12.10 Art 31 9.14 Art 31(3)(b) 8.49, 9.67 Art 31(3)(c) 12.10, 29.288 Art 32 25.50 Art 34 26.66 Art 35 16.07 Art 36 16.07 Art 44(5) 25.30 Art 56(1) 8.44 Art 62(1) 8.45 Art 70(1)(b) 8.38 Art 77 15.58 Art 79 31.59 Art 81 8.89 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 March 1986 (VCLT-IO) 12.14, 9.08, 9.32, 9.34, 16.07 Art 46(2) 9.61 Preamble 9.32, 9.33 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character 1975 16.08, 16.51 Art 1(1)(1) 16.08 Art 2 16.08 Art 14 16.51 Art 23 16.58 Art 24 16.58 Art 29 16.58 Art 33 16.58

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Art 34 16.66 Art 36 16.66 Art 73 16.51 Art 89 16.08 Art 90 16.08 Pt II 16.08 Pt IV 8.85, 16.08 Vienna Convention on Succession of States in Respect of Treaties Art 4 8.53

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Table of Domestic Legislation Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Australia International Organizations (Privileges and Immunities) Regulations 1986 9.44, 11.29 Specialized Agencies (Privileges and Immunities) Regulations 1986 16.07

Austria Granting of Privileges and Immunities to International Organizations, Federal Act of 14 December 1977 16.14

Bosnia Herzegovina Criminal Procedure Code 2003 31.188, 31.189, 31.191 Art 3 31.189 Art 4 31.189 Art 4a 31.189 Art 24 31.191 Law on the Amendments to the Law on the Court of Bosnia and Herzegovina, Official Gazette of Bosnia and Herzegovina No 61/04 31.188, 31.193 Art 8 31.188

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Law on Amendments to the Law on the Prosecutor’s Office of Bosnia and Herzegovina No 97/09 31.193 Art 3 31.192 Law on the Court, Official Gazette of Bosnia and Herzegovina No 49/09 31.188 s I 31.188 s II 31.188 s III 31.188 Law on the Court of Bosnia and Herzegovina—Consolidated Version Art 1(2) 31.190 Law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina (23 May 2002) 31.190 Art 5 31.190 Art 66 31.190 Law on the Prosecutor’s Office of BiH 31.188, 31.192 Art 1 31.192 Art 3(3) 31.192 Art 18a 31.192 Law on the Transfer of Cases from the ICTY to the Prosecutor’s Office of BiH and the Admissibility of Evidence Collected by ICTY in Proceedings before the Courts in BiH (Law on the Transfer of Cases) 31.188 Art 2(1) 31.188 Art 2(6) 31.188

Cambodia Penal Code 1956 31.132

Canada Order of the Governor in Council pursuant to s 5 of the Foreign Missions and International Organizations Act 1991 16.07 Privileges and Immunities (United Nations) Act 1947 11.29

Federal Republic of Yugoslavia Criminal Code 31.165, 31.189

Indonesia Act 26 of 2000 concerning Human Rights Courts (Act 26/2000) 31.184

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Kosovo Law No 03/L-052, Law on the Special Prosecution Office of the Republic of Kosovo 31.171 Law No 03/L-053, Law on the Jurisdiction, Case Selection and Case Allocation of EULEX Judges and Prosecutors in Kosovo 31.171 Provisional Criminal Procedure Code 31.165

(p. lxxxi) Lebanon Code of Criminal Procedure 31.145

Norway Human Rights Act 1999 22.188

Serbia Penal Code 31.165

Sierra Leone Criminal Procedure Act 1965 31.100 Malicious Damage Act 1861 31.109 Prevention of Cruelty to Children Act 1926 31.109 Residual Special Court for Sierra Leone Agreement (Ratification) Act 2011 31.121 Special Court Agreement, 2002 (Ratification) Act 2002 31.98 s 11(2) 31.99 s 37 31.100 s 38 31.100 s 39 31.100 s 40 31.100 s 41 31.100 s 43 31.100 s 44 31.100 s 45 31.100 Special Court Agreement, 2002 (Ratification) (Amendment) Act 2002 Art 2(c) 31.106

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Somalia Penal Code of 1962 27.97

Switzerland Federal Act on the Privileges, Immunities and Facilities 16.14, 16.49, 16.51 Financial Subsidies granted by Switzerland as a Host State of 22 June 2007 (RS 192.12) 16.14 Ordinance to the Federal Act on the Privileges, Immunities and Facilities and the Financial Subsidies granted by Switzerland as a Host State, 7 December 2007 (RS 192.121) 16.14, 16.49, 16.52 Art 25(4) 16.52 Ordonnance sur les conditions d’entrée, de séjour et de travail des domestiques privés des personnes bénéficiaires de privilèges, d’immunités et de facilités (2011) 16.66

United Kingdom Table of Statutes International Organizations Act 1968 16.14 International Organizations Act 2005 16.14 International Tribunals (Sierra Leone) Act 2007 31.103

Table of Statutory Instruments Civil Procedure Rules rr 32.15–32.17 29.346 Diplomatic Privileges (United Nations and International Court of Justice) Order in Council 1947 (SR & O 1947/1772) 11.29 International Tribunals (Sierra Leone) (Application of Provisions) Order 2007 (SI 2007/2140) 31.103 Specialized Agencies of the United Nations (Immunities and Privileges) Order 1974 (SI 2002/1827) 16.07

United States Anti-Terrorism Act 1987 16.15 Executive Order of the President of the United States pursuant to s 1 of the International Organization Immunities Act 1945 16.07 s 2(b) 16.27 Foreign Sovereign Immunities Act (1976) 15 ILM 1388 16.27

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International Organization Immunities Act 1945 s 1 16.14 s 7(b) 16.61 International Organizations Immunities Act, 22 USC § 288 (1952) 9.44

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Table of UN Documents Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Commission on Human Rights Commission on Human Rights Decision 10 (XXXVII) (1981) 22.50 Commission on Human Rights Decision 1997/105 22.217 Commission on Human Rights Res I (1956) 22.50 Commission on Human Rights Res 2 (XXIII) (1967) 22.60 Commission on Human Rights Res 7 (XXIII) 22.60 Commission on Human Rights Res 8 (XXXI) (1975) 22.60 Commission on Human Rights Res 14 (XXIII) 22.87 Commission on Human Rights Res 18 (XXXIV) (1978) 22.144 Commission on Human Rights Res 20 (XXXIV) (1978) 22.147 Commission on Human Rights Res 20 (XXXVI) (1980) 22.60, 22.158 Commission on Human Rights Res 1982/29 22.60 Commission on Human Rights Res 1984/21 22.144 Commission on Human Rights Res 1985/33 22.60 Commission on Human Rights Res 1987/38 22.111

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Commission on Human Rights Res 1989/47 22.216 Commission on Human Rights Res 1989/57 22.147 Commission on Human Rights Res 1993/2 22.61 Commission on Human Rights Res 1993/87 22.111 Commission on Human Rights Res 1998/20 22.08 Commission on Human Rights Res 1998/27 22.216 Commission on Human Rights Res 1998/72 22.85 Commission on Human Rights Res 1999/52 22.08 Commission on Human Rights Res 2000/47 19.20 Commission on Human Rights Res 2001/46 22.158 Commission on Human Rights Res 2001/60 22.77 Commission on Human Rights Res 2002/46 19.06, 19.20 Commission on Human Rights Res 2002/68 22.85 Commission on Human Rights Res 2004/7 22.85 Commission on Human Rights Res 2005/74 22.115, 22.116

Commission on the Status of Women Commission Res 2 (XXVII) 22.06 Commission Res 15 (XXIV) 22.06

Committee against Torture Rules of Procedure of the Committee against Torture r 4 22.171 r 67 22.175 r 73(1) 22.181

Committee on Economic, Social and Cultural Rights Rules of Procedure of the Committee on Economic, Social and Cultural Rights r 58(2) 22.175 r 71(5) 22.180 r 72 22.180

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Committee on the Elimination of Discrimination Against Women (CEDAW) Rules of Procedure of the Committee on the Elimination of Discrimination Against Women r 5 22.171

(p. lxxxiii) Committee on the Elimination of Racial Discrimination (CERD) Rules of Procedure of the Committee on the Elimination of Racial Discrimination r 5 22.171

Committee on Enforced Disappearance Rules of Procedure of the Committee on Enforced Disappearance r 47(1) 22.181

Committee on Migrant Workers Rules of Procedure of the Committee on Migrant Workers r 3 22.171 r 32 22.181

Committee on the Rights of Persons with Disabilities Rules of Procedure of the Committee on the Rights of Persons with Disabilities r 43(1) 22.181

Economic and Social Commission for Asia and the Pacific Rules of Procedure of the Economic and Social Commission for Asia and the Pacific 10.68

ECOSOC ECOSOC Decision 4 May 1973 6.135 ECOSOC Decision 1984/175 21.06 ECOSOC Decision 1985/105 22.214 ECOSOC Decision 1987/112 5.05 ECOSOC Decision 1987/147 22.111 ECOSOC Decision 1993/207 24.08 ECOSOC Decision 1994/223 5.36 ECOSOC Decision 1995/201 10.03

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ECOSOC Decision 1996/297 5.44 ECOSOC Decision 1998/269 22.85 ECOSOC Decision 1998/297 5.53 ECOSOC Decision 2002/235 22.07 ECOSOC Decision 2002/270 22.85 ECOSOC Decision 2002/304 5.63 ECOSOC Decision 2003/311 5.63 ECOSOC Decision 2004/249 22.85 ECOSOC Decision 2004/322 5.58 ECOSOC Decision 2011/224 5.36 ECOSOC Res 3 (II) (1946) 6.130 ECOSOC Res 3 (III) (1946) 6.124, 18.12 ECOSOC Res 5 (I) (1946) 5.62, 6.124, 22.41 ECOSOC Res 8 (I) (1946) 6.124 ECOSOC Res 9 (I) (1946) 6.124, 17.19 ECOSOC Res 9 (II) (1946) 22.41, 22.42 ECOSOC Res 10 (II) (1946) 6.124, 17.22 ECOSOC Res 11 (I) (1946) 6.130 ECOSOC Res 11 (II) (1946) 5.63, 6.124, 17.20, 22.07 ECOSOC Res 13 (III) (1946) 7.44, 15.17, 15.53 ECOSOC Res 15 (III) (1946) 5.53 ECOSOC Res 36 (IV) (1947) 6.127, 11.47 ECOSOC Res 37 (IV) (1947) 6.127, 6.129 ECOSOC Res 48 (IV) (1947) 22.07 ECOSOC Res 75 (V) (1947) 22.03 ECOSOC Res 100 (V) (1947) 5.11, 6.125 ECOSOC Res 106 (VI) (1948) 6.127 ECOSOC Res 116A (VI) (1948) 22.03 ECOSOC Res 128 A (VI) (1948) 7.47

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ECOSOC Res 144 B (VII) 6.129 ECOSOC Res 191 (VIII) (1949) 22.129 ECOSOC Res 192A (VIII) 22.03 ECOSOC Res 254 (IX) (1949) 21.13 ECOSOC Res 275B (X) (1950) 22.03 ECOSOC Res 277(X) (1950) 22.03 ECOSOC Res 288 B (X) (1950) 5.44 ECOSOC Res 289 (X) (1950) 5.11, 6.125 ECOSOC Res 295 B (XI) 10.61 ECOSOC Res 303 I (XI) (1950) 22.129 ECOSOC Res 334 B (XI) (1950) 5.42 ECOSOC Res 384 (XIII) (1951) 22.130 ECOSOC Res 393 B (XIII) (1951) 23.05 ECOSOC Res 414 (XIII) (1951) 5.51, 6.127, 22.05 ECOSOC Res 443 (XIV) (1952) 5.51 ECOSOC Res 445 I (XIV) (1952) 5.51 ECOSOC Res 474A (XV) 22.03 ECOSOC Res 565 (XIX) (1955) 23.05 ECOSOC Res 585 F (XX) (1955) 7.55 ECOSOC Res 607 (XXI) (1956) 22.03 ECOSOC Res 624B (XXII) (1956) 22.50 ECOSOC Res 671 A (XXV) (1958) 6.127, 17.28 ECOSOC Res 672 (XXV) (1958) 23.05 ECOSOC Res 715 A (XXVII) (1959) 6.135 ECOSOC Res 728 F (XXVIII) (1959) 22.03 ECOSOC Res 746 (XXIX) (1960) 21.13 ECOSOC Res 766 (XXX) (1960) 21.13 ECOSOC Res 845 (XXXII) (1961) 22.05 ECOSOC Res 920 (XXXIV) (1962) 6.130, 6.131, 14.05

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ECOSOC Res 974 D III and IV (XXXVI) (1963) 8.35(p. lxxxiv) ECOSOC Res 1015 B (XXXVII) (1964) 22.137 ECOSOC Res 1035 (XXXVII) (1964) 6.135 ECOSOC Res 1049 (XXXVII) (1964 21.13 ECOSOC Res 1079 (XXXIX) (1965) 6.135 ECOSOC Res 1086 B (XXXIX) (1965) 6.120 ECOSOC Res 1139 (XLI) (1966) 6.124, 17.22 ECOSOC Res 1147 (XLI) (1966) 22.05 ECOSOC Res 1171 (XLI) (1966) 6.130 ECOSOC Res 1186 (XLI) (1966) 23.30 ECOSOC Res 1199 (XLII) (1967) 6.135, 17.47 ECOSOC Res 1235 (XLII) 22.03, 22.68 ECOSOC Res 1237 (XLII) 22.87 ECOSOC Res 1238 (XLII) 22.88 ECOSOC Res 1273 (XLIII) (1967) 6.135 ECOSOC Res 1296 (XLIV) (1968) 5.44, 6.132 ECOSOC Res 1314 (XLIV) (1968) 6.135 ECOSOC Res 1325 (XLIV) (1968) 22.07 ECOSOC Res 1503 (XLVII) (1970) 22.03, 22.68, 22.195 ECOSOC Res 1584 (L) (1971) 6.120 ECOSOC Res 1655 (LII) (1972) 23.23 ECOSOC Res 1705 (LIII) (1972) 23.23 ECOSOC Res 1789 (LIV) (1973) 22.151 ECOSOC Res 1818 (LV) (1973) 6.127 ECOSOC Res 1840 (LVI) (1974) 8.92 ECOSOC Res 1892 (LVII) (1974) 8.92 ECOSOC Res 1895 (LVII) (1974) 6.127 ECOSOC Res 1988 (LX) (1976) 22.175 ECOSOC Res 2008 (LX) (1976) 6.72, 6.82, 14.05

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ECOSOC Res 2011 (LXI) (1976) 23.39 ECOSOC Res 2098 (LXIII) (1977) 7.47 ECOSOC Res 2102 (LXIII) (1977) 21.06 ECOSOC Res 1978/28 22.07 ECOSOC Res 1980/13 6.135 ECOSOC Res 1982/34 22.80 ECOSOC Res 1982/67 6.135 ECOSOC Res 1983/27 22.07 ECOSOC Res 1985/17 5.62, 6.44, 6.135, 17.41, 22.161, 22.162, 22.164, 22.165, 22.167, 22.168, 22.170 ECOSOC Res 1985/69 6.127 ECOSOC Res 1987/5 22.192 ECOSOC Res 1987/22 22.07 ECOSOC Res 1987/94 14.05 ECOSOC Res 1988/4 22.175, 22.176 ECOSOC Res 1989/45 22.05 ECOSOC Res 1989/56 17.55 ECOSOC Res 1989/75 5.53 ECOSOC Res 1989/79 22.147 ECOSOC Res 1990/48 22.74 ECOSOC Res 1994/50 5.36 ECOSOC Res 1999/51 5.26 ECOSOC Res 1991/3 6.124 ECOSOC Res 1991/49 6.126, 6.127 ECOSOC Res 1992/1 6.124, 17.18 ECOSOC Res 1992/19 22.07 ECOSOC Res 1992/22 17.18 ECOSOC Res 1992/218 6.124 ECOSOC Res 1993/11 22.07 ECOSOC Res 1993/19 22.07

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ECOSOC Res 1993/20 6.124 ECOSOC Res 1993/329 5.44 ECOSOC Res 1995/31 22.81 ECOSOC Res 1996/1 5.47 ECOSOC Res 1996/6 22.07 ECOSOC Res 1996/31 5.43, 5.44, 5.45, 5.46, 6.132, 22.77 ECOSOC Res 1998/4 6.135 ECOSOC Res 1999/4 5.58, 5.63 ECOSOC Res 1999/6 6.135 ECOSOC Res 1999/13 22.142 ECOSOC Res 1999/30 17.19 ECOSOC Res 2000/22 6.135, 22.08, 22.09 ECOSOC Res 2000/35 24.07 ECOSOC Res 2001/4 17.21 ECOSOC Res 2001/45 6.135 ECOSOC Res 2002/1 5.63 ECOSOC Res 2000/3 22.68 ECOSOC Res 2000/35 6.124 ECOSOC Res 2004/69 6.135 ECOSOC Res 2006/2 5.62, 6.124, 22.39 ECOSOC Res 2006/9 17.21 ECOSOC Res 2009/15 17.21 ECOSOC Res 2009/16 22.07 ECOSOC Res 2011/24 6.135 ECOSOC Res 2011/43 5.64 ECOSOC Res 2013/18 17.21, 22.07 ECOSOC Res 2015/6 17.21 ECOSOC Res 2015/18 5.58 ECOSOC Res 2016/3 17.21

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ECOSOC Rules of Procedure 5.09, 5.13, 6.33, 6.121, 10.63, 10.66 r 3 5.55, 10.65 r 4(b) 10.65 r 4(1)(a) 5.36 r 4(1)(b) 5.36 r 4(1)(c) 5.36, 5.57 r 4(2) 5.36, 10.65 r 4(3) 5.36, 5.54 r 5(4)(ii) 10.67 r 6 5.54 r 8 5.55 r 9(c) 5.57 r 9(1) 5.55 r 9(2) 5.54, 5.55 r 10 5.54, 5.55 r 12(1) 5.54, 5.55, 5.57 r 13(2) 5.57(p. lxxxv) r 13(4) 5.44 r 16 5.37 r 17 5.37, 8.72, 15.63 r 18(1) 5.16 r 18(2) 5.19 r 19 5.16 r 22 5.16 r 23 5.13, 10.61 r 24 5.41, 6.122 r 24(1) 5.09, 6.06, 6.122 r 24(2) 5.09, 6.121, 6.128 rr 25–27 6.119

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r 25 6.122, 6.129 r 26(1) 5.09 r 26(2) 6.122 r 27(1) 10.61 r 27(2) 5.12, 6.33 r 28 15.46 r 28(1) 5.55 r 28(2) 5.55 r 28(3) 5.55 r 29 5.56, 15.07 r 30 5.55, 15.49 r 31 5.55, 15.49 r 37 5.55 r 38 5.56 r 39 5.57 r 41 5.12, 10.62, 10.67 r 42(1) 5.18 r 42(2) 5.18 r 44 5.55 r 44(1) 5.18 r 45 10.20 r 46 5.40 r 56 5.40 r 57 5.40 r 58 5.12, 10.61 r 59 10.63 r 60 10.67 r 60(1) 10.62 r 60(2) 10.62

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r 61(1) 10.63 r 61(2) 10.63 r 61(3) 10.63 r 62 10.26 r 68 5.13, 5.16, 10.66 rr 69–70 10.62, 10.66 r 70 5.41 r 71 10.62 r 72 5.38, 5.39, 5.40 r 72(1) 5.38, 5.39 r 72(2) 5.39 r 72(3) 10.61 r 73 5.41 r 74 5.41 rr 75–78 5.41 r 75 5.40 r 79 5.42 rr 80–84 5.43 s V 6.122 s XI 10.61 Rules of Procedure of the Functional Commissions of the Economic and Social Council (Rules of Procedure of the Functional Commissions) 6.125 r 21(1) 6.125 r 21(2) 6.125 r 22 6.125 r 40 10.67 rr 56–65 10.67 r 57 10.67 r 58 10.67 rr 66–67 10.67

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r 66 10.67 r 70 6.125 r 77 6.125 s V 6.125

General Assembly GA Decision 39/436 (1984) 5.05 GA Decision 43/433 (1988) 5.05 GA Decision 44/415 (1989) 25.69 GA Decision 45/319 (1990) 23.09 GA Decision 48/307 (1993) 23.09 GA Decision 48/474 (2013) 14.19 GA Decision 49/426 (1994) 8.82 GA Decision 53/305 (1998) 23.09 GA Decision 58/402 (2003) 23.09 GA Decision 59/420 (2005) 23.09 GA Decision 62/519 (2007) 6.72 GA Decision 62/547 (2008) 29.280 GA Decision 64/419 (2010) 23.09 GA Res 1 (I) (1946) 6.85, 26.35 GA Res 1/22A (1946) 16.04, 16.07 GA Res 4 (I) (1946) 17.14 GA Res 5 (I) (1946) 5.10 GA Res 7 (I) (1946) 5.10 GA Res 11(I) (1946) 10.30, 15.41, 15.44, 15.45 GA Res 13(I) (1946) 2.89, 15.01, 15.08, 15.18, 15.27, 15.54 GA Res 14 (I) (1946) 2.35, 6.69, 14.03, 14.25, 14.49 GA Res 14 A (I) (1946) 14.49, 14.66 GA Res 16 (I) (1946) 6.70 GA Res 22 B (I) (1946) 6.38

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GA Res 22 C (I) (1946) 15.13, 16.77 GA Res 24 (1) part I A (1946) 15.57(p. lxxxvi) GA Res 26 A (I) (1946) 6.85 GA Res 39 (I) (1946) 7.29, 9.28, 26.33, 26.36 GA Res 40 (I) (1946) 26.22 GA Res 44 (I) (1946) 28.21 GA Res 49 (I) A (1946) 17.14 GA Res 49 (I) A–C (1946) 17.14 GA Res 50 (I) (1946) 7.08, 7.38, 7.39, 9.32 GA Res 52 (I) (1946) 18.16 GA Res 57 (I) (1946) 6.36, 6.72, 6.75, 6.80, 15.04, 22.17 GA Res 62 (I) (1946) 15.04, 23.01 GA Res 63 (I) (1946) 4.04, 4.15 GA Res 64 (I) (1946) 4.04 GA Res 65 (l) (1946) 4.20 GA Res 69 (I) (1946) 14.50 GA Res 73 (II) (1947) 6.22 GA Res 74 (I) (1946) 6.72, 6.82, 14.24 GA Res 76 (I) (1946) 15.62, 16.62, 16.72 GA Res 82 (I) (1946) 6.29 GA Res 89 (I) (1946) 5.53, 29.110 GA Res 90 (I) (1946) 15.13, 16.04, 16.77 GA Res 98 (I) (1946) 9.40 GA Res 100 (1) (1946) 9.53, 14.40 GA Res 103 (I) (1946) 26.20 GA Res 108 (II) (1947) 8.54 GA Res 109 (II) (1947) 6.38, 26.37, 27.81 GA Res 111 (II) (1947) 6.17, 6.85, 6.86, 26.23, 28.22 GA Res 117 (II) (1947) 10.36, 26.16, 26.22

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GA Res 119 (II) (1947) 17.14 GA Res 123 (II) (1947) 17.14 GA Res 124 (II) (1947) 7.08, 7.50, 9.04, 9.32, 11.40, 14.66 GA Res 125 (II) (1947) 7.47 GA Res 155 (II) (1947) 6.72 GA Res 140 (II) (1947) 4.16 GA Res 141 (II) (1947) 4.20 GA Res 169 (II) (1947) 16.50 GA Res 173 (II) (1947) 6.72 GA Res 174 (II) (1947) 6.29, 6.35, 6.72, 6.83, 25.04, 26.34 GA Res 177 (II) (1947) 31.47, 31.49 GA Res 179 (II) (1947) 16.07 GA Res 181 (II) (1947) 4.19 GA Res 186 (S-2) (1948) 28.46 GA Res 194 (III) (1948) 6.80, 28.48 GA Res 196 (III) (1948) 6.22, 6.72, 6.86 GA Res 197 (III) (1948) 8.09 GA Res 200 (III) (1948) 18.16 GA Res 204 (III) (1948) 7.08, 9.32 GA Res 205 (III) (1948) 7.08, 7.12, 9.32 GA Res 207 (III) (1948) 2.26, 5.04 GA Res 208 (III) (1948) 5.51, 5.65 GA Res 211 (III) (1948) 26.24 GA Res 217 (III) A (1948) 19.08, 22.11, 22.68, 22.125, 22.126, 22.127, 26.33 GA Res 217 D (III) (1948) 22.119 GA Res 217 E (III) (1948) 22.129 GA Res 227 (III) (1948) 4.20 GA Res 238 (III) A (1948) 14.49 GA Res 239 (III) (1948) 14.43

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GA Res 248 (III) (1948) 6.72, 6.82, 15.29 Ga Res 253 (III) (1948) 8.91 GA Res 257 A (III) (1948) 15.63 GA Res 258 (III) (1948) 29.105 GA Res 260 A (III) (1948) 22.11 GA Res 265 (III) (1949) 26.18 GA Res 267 (III) (1949) 8.13, 10.36, 26.16, 26.22 GA Res 268 (II) (1949) 28.01 GA Res 268 (III) A (1949) 26.23, 28.22 GA Res 268 (III) B (1949) 28.22 GA Res 268 (III) D (1949) 28.22, 28.47, 28.48 GA Res 272 (III) (1948) 26.19 GA Res 278 (III) (1948) 17.14 GA Res 280 (III) (1947) 17.14 GA Res 289 (IV) A (1949) 27.97 GA Res 294 (IV) (1949) 26.19 GA Res 295 (IV) (1949) 6.22, 6.86 GA Res 296 (IV) (1949) 8.06 GA Res 302 (IV) (1949) 6.72, 6.75, 6.80, 15.04, 22.17, 23.19 GA Res 304 (1949) 11.54 GA Res 304 (IV) (1949) 18.16 GA Res 308 (IV) (1949) 17.14 GA Res 311 (IV) (1949) 14.67 GA Res 319 (IV) (1949) 15.04, 23.05, 23.26, 23.41 GA Res 319 A (IV) (1949) 23.01 GA Res 337 (IV) (1949) 4.20 GA Res 337 (V) (1950) 3.72 GA Res 337 A (V) (1950) 5.57 GA Res 338 (IV) (1949) 4.21

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GA Res 347 (IV) (1949) 6.72, 6.82 GA Res 362 (IV) (1949) 10.05 GA Res 365 (IV) (1949) 9.35 GA Res 366 (IV) (1949) 5.23, 5.50 GA Res 377 (V) (1950) 2.08, 2.16, 2.101, 2.102, 6.87, 10.05, 12.12, 26.38, 28.22 GA Res 379 (V) (1950) 26.23 GA Res 385 (V) (1950) 26.19 GA Res 386 (V) (1950) 7.29 GA Res 395 (V) (1950) 17.14, 26.18, 26.51 GA Res 401 (V) (1950) 17.14 GA Res 410 (V) (1950) 6.73 GA Res 415 (V) (1950) 6.120 GA Res 417 (V) (1950) 17.14(p. lxxxvii) GA Res 420 (V) (1950) 5.51 GA Res 421 E (V) (1950) 22.129 GA Res 422 (V) (1950) 22.11 GA Res 423 (V) (1950) 22.12, 25.81 GA Res 427 (V) (1950) 22.17 GA Res 428 (V) (1950) 6.37, 6.75, 11.52, 23.01 GA Res 442 (V) (1950) 4.04, 4.17, 22.11 GA Res 449 (V) (1950) 4.21 GA Res 474 (V) (1950) 29.259 GA Res 477 (V) (1950) 8.91 GA Res 478 (V) (1950) 15.57 GA Res 479 (V) (1950) 5.23 GA Res 481 (V) (1950) 16.34 GA Res 485 (V) (1950) 25.04 GA Res 500 (V) (1951) 26.36 GA Res 502 (VI) (1952) 6.72, 6.81, 6.85, 6.97

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GA Res 508 (VI) (1951) 6.38 GA Res 511 (VI) (1952) 26.18 GA Res 524 (VI) (1952) 17.14 GA Res 525 (VI) (1952) 17.14, 21.13 GA Res 527 (VI) (1952) 17.14 GA Res 531 (VI) (1951) 7.08, 9.32 GA Res 532 (VI) (1951) 5.51, 9.32, 17.14 GA Res 532 B (VI) (1952) 5.51 GA Res 537 (VI) (1952) 17.14 GA Res 538 (VI) (1952) 15.04 GA Res 538 B (VI) (1952) 23.39 GA Res 543 (VI) (1951) 22.11, 22.130 GA Res 546 (VI) (1951) 22.11 GA Res 554 (VI) (1952) 17.14 GA Res 590 (VI) (1952) 15.13 GA Res 598 (VI) (1952) 15.58 GA Res 600 (VI) (1952) 25.12 GA Res 604 (VI) (1952) 16.34 GA Res 616 A (VII) (1952) 22.17, 26.20 GA Res 616 B (VII) (1952) 26.20 GA Res 620 (VII) (1952) 8.09 GA Res 625 A–B (VII) (1952) 17.14 GA Res 640 (VII) (1952) 22.07 GA Res 718 (VIII) (1953) 8.09 GA Res 723 (VIII) (1953) 17.47 GA Res 727 (VIII) (1953) 23.01 GA Res 729 (VIII) (1953) 22.107 GA Res 730 (VIII) (1953) 22.107 GA Res 741 (VIII) (1953) 22.17

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GA Res 784 (VIII) (1953) 15.11 GA Res 802 (VIII) (1953) 6.75, 15.04 GA Res 817 (X) (1954) 8.13 GA Res 832 (IX) (1954) 23.05 GA Res 839 (IX) (1954) 22.107 GA Res 886 (IX) (1954) 15.11 GA Res 909 (X) (1955) 26.21 GA Res 913 (X) (1955) 6.72, 6.81 GA Res 915 (X) (1955) 26.21 GA Res 918 (X) (1955) 8.08, 8.12 GA Res 926 (X) (1955) 22.107 GA Res 957 (X) (1955) 15.34 GA Res 973 (X) (1955) 16.71 GA Res 973 A (X) (1995) 14.43 GA Res 984 (X) (1955) 25.04 GA Res 985 (X) (1955) 25.04 GA Res 995 (X) (1955) 8.08, 8.09 GA Res 998 (ES-I) (1956) 27.81, 28.21 GA Res 1000 (ES-I) (1956) 6.73, 14.27, 28.21 GA Res 1001 (ES-I) (1956) 6.73, 14.27, 14.57, 28.21 GA Res 1006 (ES-II) (1956) 23.39 GA Res 1017 A and B (XI) (1957) 15.58 GA Res 1012 (XI) (1957) 26.21 GA Res 1038 (XI) (1956) 6.75 GA Res 1039 (XI) (1956) 23.39 GA Res 1089 (XI) (1956) 14.57 GA Res 1099 (XI) (1957) 16.71 GA Res 1103 (XI) (1956) 25.10 GA Res 1116 (XI) (1957) 7.09, 9.32

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GA Res 1122 (XI) (1956) 14.27 GA Res 1129 (XI) (1956) 23.39 GA Res 1137 (XII) (1957) 14.49 GA Res 1145 (XII) (1957) 15.02 GA Res 1146 (XII) (1957) 31.62 GA Res 1151 (XII) (1957) 14.57 GA Res 1162 (XII) (1957) 17.14 GA Res 1163 (XII) (1957) 17.14 GA Res 1166 (XII) (1957) 6.72, 6.80, 22.17, 23.05, 23.06, 23.39 GA Res 1167 (XII) (1957) 23.21, 23.39 GA Res 1184 (XII) (1957) 26.21 GA Res 1192 (XII) (1957) 2.26, 2.33 GA Res 1202 (XII) (1957) 15.53 GA Res 1229 (XII) (1957) 15.45 GA Res 1237 (ES-III) (1958) 26.38 GA Res 1240 (XIII) (1958) 11.54, 18.16 GA Res 1285 (XIII) (1959) 25.81 GA Res 1386 (XIV) (1959) 22.147 GA Res 1388 (XIV) (1959) 23.21 GA Res 1392 (XIV) (1959) 17.28 GA Res 1436 (XIV) 15.27 GA Res 1438 (XIV) (1959) 6.72, 6.82 GA Res 1472 A (XIV) (1959) 6.72, 6.81 GA Res 1474 (ES-IV) (1960) 26.38, 27.72, 27.85, 28.48 GA Res 1490 (XV) (1960) 8.56 GA Res 1491 (XV) (1960) 8.56 GA Res 1514 (XV) (1960) 4.25, 6.29, 19.02, 22.11, 22.184, 26.24, 26.35 GA Res 1556 (XV) (1960) 23.41 GA Res 1573 (XV) (1960) 26.21(p. lxxxviii)

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GA Res 1575 (XV) (1960) 14.57 GA Res 1583 (XV) (1960) 14.27 GA Res 1594 (XV) (1961) 6.40, 7.09, 7.55, 9.32 GA Res 1598 (XV) (1961) 26.20 GA Res 1600 (XV) (1961) 28.48 GA Res 1620 (XV) (1961) 14.52 GA Res 1640 (XVI) (1961) 15.46 GA Res 1647 (XVI) (1961) 25.10 GA Res 1653 (XVI) (1960) 26.35 GA Res 1654 (XVI) (1961) 6.72, 6.83, 22.17 GA Res 1659 (XVI) (1961) 14.09 GA Res 1663 (XVI) (1961) 26.20 GA Res 1672 (XVI) (1961) 23.32 GA Res 1673 (XVI) (1961) 23.06, 23.21 GA Res 1675 (XVI) (1961) 17.14 GA Res 1677 (XVI) (1961) 17.14 GA Res 1710 (XVI) (1961) 17.05, 17.14 GA Res 1714 (XVI) (1961) 6.40, 6.75, 7.55, 11.42, 17.14, 17.55 GA Res 1729 (XVI) (1961) 6.72, 6.82, 23.41 GA Res 1731 (XVI) (1961) 14.52 GA Res 1752 (XVII) (1962) 26.21, 26.37, 27.86 GA Res 1753 (XVII) (1962) 21.13 GA Res 1761 (XVII) (1962) 2.83, 8.40, 12.12, 22.17, 26.20, 26.36 GA Res 1771 (XVII) (1962) 15.46 GA Res 1775 (XVII) (1962) 22.17 GA Res 1783 (XVII) (1962) 23.06 GA Res 1785 (XVII) (1962) 2.97 GA Res 1798 (XVII) (1962) 2.05, 6.35 GA Res 1803 (XVII) (1962) 12.05, 26.35

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GA Res 1837 (XVII) (1962) 26.35 GA Res 1838 (XVII) (1962) 17.14 GA Res 1854 (XVII) (1962) 14.47, 14.52 GA Res 1854 B (XVII) (1962) 14.52 GA Res 1874 (S-IV) (1963) 14.27 GA Res 1882 (XVIII) (1963) 21.13 GA Res 1904 (XVIII) (1963) 22.137 GA Res 1906 (XVIII) (1963) 22.137 GA Res 1934 (XVIII) (1963) 9.56 GA Res 1961 (XVIII) (1963) 22.12, 22.227 GA Res 1962 (XVIII) (1963) 26.35 GA Res 1967 (XVIII) (1963) 28.43 GA Res 1978 A (XVIII) (1963) 26.20 GA Res 1990 (XVIII) (1963) 2.33 GA Res 1991 A (XVIII) (1963) 2.37, 3.07, 15.57 GA Res 1991 B (XVIII) (1963) 5.04, 15.57 GA Res 1995 (XIX) (1964) 2.69, 6.29, 6.72, 6.75, 6.84, 11.49, 18.19, 18.20, 18.23 GA Res 2006 (XIX) (1965) 6.29, 6.72, 6.81, 14.63 GA Res 2009 (XIX) (1965) 26.39 GA Res 2010 (XX) (1965) 8.54 GA Res 2029 (XX) (1965) 6.72, 6.75, 6.80, 11.54, 15.04, 18.16, 22.17 GA Res 2034 (XX) (1965) 21.13 GA Res 2049 (XX) (1965) 14.64 GA Res 2054 A (XX) (1965) 2.83 GA Res 2062 (XX) (1965) 22.87 GA Res 2081 (XX) (1965) 22.12, 22.17, 22.227 GA Res 2089 (XX) (1965) 7.10, 11.39 GA Res 2095 (XX) (1965) 11.42 GA Res 2099 (XX) (1965) 6.72, 6.83, 25.71

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GA Res 2106 (XX) (1965) 22.11, 22.136 GA Res 2118 (XX) (1965) 8.42, 8.50 GA Res 2128 (XX) (1965) 2.05 GA Res 2131 (XX) (1965) 26.35 GA Res 2145 (XXI) (1966) 4.21, 6.41 GA Res 2147 (XXI) (1966) 15.45 GA Res 2150 (XXI) (1966) 6.72, 6.82, 14.24 GA Res 2151 (XXI) (1966) 28.20 GA Res 2152 (XXI) (1966) 11.39, 18.01, 18.25 GA Res 2161 (XXI) (1966) 15.45 GA Res 2198 (XXI) (1966) 23.20, 23.30 GA Res 2200 (XXI) (1966) 17.41, 26.33, 26.34 GA Res 2200 A (XXI) (1966) 22.11, 22.130 GA Res 2202 A (XXI) (1966) 22.11, 28.20 GA Res 2205 (XXI) (1966 6.72, 6.84, 11.49, 25.59 GA Res 2211 (XXI) (1966) 6.75 GA Res 2217 (XXI) (1966) 22.12, 22.17 GA Res 2217 C (XXI) (1966) 22.227 GA Res 2241 (XXI) (1966) 15.27 GA Res 2245 (XXI) (1966) 2.05 GA Res 2248 (S-V) (1967) 6.41, 22.17, 27.100 GA Res 2262 (XXII) (1967) 28.20 GA Res 2263 (XXII) (1967) 7.14, 22.07, 22.140 GA Res 2264 B (XXII) (1967) 17.14 GA Res 2270 (XXII) (1967) 28.20 GA Res 2297 (XXII) (1967) 6.40 GA Res 2307 (XXII) (1967) 28.20 GA Res 2312 (XXII) (1967) 26.35 GA Res 2324 (XXII) (1967) 28.20

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GA Res 2328 (XXII) (1967) 16.07 GA Res 2329 (XXII) (1967) 28.43 GA Res 2339 (XXII) (1967) 15.11, 22.12, 22.227 GA Res 2372 (XXII) (1968) 22.17, 26.35, 27.100 GA Res 2383 (XXIII) (1968) 28.20 GA Res 2390 (XXIII) (1968) 14.48 GA Res 2395 (XXIII) (1968) 28.20 GA Res 2396 (XXIII) (1968) 28.20(p. lxxxix) GA Res 2398 (XXIII) (1968) 24.02 GA Res 2403 (XXIII) (1968) 28.20 GA Res 2435 (XXIII) (1968) 21.24 GA Res 2442 (XXIII) (1968) 22.12 GA Res 2443 (XXIII) (1968) 6.29, 6.72, 6.80, 22.17 GA Res 2489 (XXIII) (1968) 2.05, 6.35 GA Res 2491 (XXIII) (1986) 2.05 GA Res 2497 (XXIV) (1969) 17.14 GA Res 2498 (XXIV) (1969) 28.20 GA Res 2506 B (XXIV) (1969) 28.20 GA Res 2508 (XXIV) (1969) 28.20 GA Res 2517 (XXIV) (1969) 28.20 GA Res 2529 (XXIV) (1969) 7.11 GA Res 2542 (XXIV) (1969) 17.14 GA Res 2598 (XXIV) (1969) 17.14 GA Res 2625 (XXV) (1970) 12.12, 19.02, 25.03, 26.35, 28.01, 28.04, 28.47 GA Res 2627 (XXV) (1970) 28.01 GA Res 2656 (XXV) (1970) 6.72, 6.82 GA Res 2659 (XXV) (1970) 11.53 GA Res 2674 (XXV) (1970) 22.12 GA Res 2676 (XXV) (1970) 22.12

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GA Res 2677 (XXV) (1970) 22.12 GA Res 2688 (XXV) (1970) 15.04 GA Res 2734 (XV) (1970) 26.35, 28.01 GA Res 2735 A (XXV) (1970) 14.24 GA Res 2743 (XXV) (1970) 15.18 GA Res 2749 (XXV) (1970) 26.35 GA Res 2750 C (XXV) (1970) 6.31 GA Res 2758 (XXVI) (1971) 2.83, 3.08, 4.07, 8.06, 8.79 GA Res 2785 (XXVI) (1971) 22.12 GA Res 2795 (XXVI) (1971) 8.92 GA Res 2798 (XXVI) (1971) 14.09 GA Res 2816 (XXVI) (1971) 21.13, 21.21, 21.23 GA Res 2819 (XXVI) (1971) 6.72, 6.82 GA Res 2826 (XXVI) (1971) 26.35 GA Res 2832 (XXVI) (1971) 26.35 GA Res 2837 (XXVI) (1971) 6.54, 10.13 GA Res 2847 (XXVI) (1971) 2.48, 5.04 GA Res 2856 (XXVI) (1971) 22.154 GA Res 2864 (XXVI) (1971) 2.88 GA Res 2903 (XXVI) (1971) 10.30, 15.41 GA Res 2913 (XXVII) (1972) 14.48 GA Res 2920 (XXVII) (1972) 22.151 GA Res 2924 B (XXVII) (1972) 14.24 GA Res 2951 (XXVII) (1972) 6.78 GA Res 2956 A (XXVII) (1972) 23.03 GA Res 2958 (XXVII) (1972) 23.23 GA Res 2961 B (XXVII) (1972) 14.49 GA Res 2961 (XXVII) D (1972) 14.49 GA Res 2991 (XXVII) (1972) 2.88

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GA Res 2992 (XXVII) (1972) 6.72, 6.83 GA Res 2997 (XXVII) (1972) 2.97, 6.72, 6.75, 6.84, 24.16, 24.17, 24.18, 24.19, 24.23 GA Res 3004 (XXVII) (1972) 24.20 GA Res 3042 (XXVII) (1972) 15.18 GA Res 3043 (XXVII) (1972) 14.04 GA Res 3049 C (XXVII) (1972) 14.63 GA Res 3050 (XXVIII) (1973) 8.26 GA Res 3059 (XXVIII) (1973) 8.18 GA Res 3061 (XXVIII) (1973) 22.144 GA Res 3062 (XXVIII) (1973) 14.49 GA Res 3067 (XXVIII) (1973 15.58 GA Res 3068 (XXVIII) (1973) 22.11 GA Res 3081 (XXVIII) (1973) 6.72, 6.82 GA Res 3101 (XXVIII) (1973) 14.27, 14.52 GA Res 3136 (XXVIII) (1973) 22.87 GA Res 3143 (XXVIII) (1973) 23.03, 23.32 GA Res 3172 (XXVIII) (1973) 5.65 GA Res 3188 (XXVIII) (1973) 14.09 GA Res 3201 (S-VI) (1974) 12.05, 18.03 GA Res 3202 (S-VI) (1974) 2.14 GA Res 3203 (XXIX) (1974) 8.54 GA Res 3206 (XXIX) (1974) 8.77 GA Res 3208 (XXIX) (1974) 10.03 GA Res 3210 (XXIX) (1974) 8.87, 8.92 GA Res 3211 A (XXIX) (1974) 14.27 GA Res 3219 (XXIX) (1974) 22.144 GA Res 3223 (XXIX) (1974) 22.12 GA Res 3228 (XXIX) (1974) 14.49 GA Res 3232 (XXIX) (1974) 26.16

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GA Res 3237 (XXIX) (1974) 6.32, 7.21, 8.84, 8.87, 8.92 GA Res 3271 A (XXIX) (1974) 23.03 GA Res 3274 (XXIX) (1974) 23.17, 23.22 GA Res 3280 (XXIX) (1974) 8.84, 8.92 GA Res 3281 (XXIX) (1974) 12.05, 18.01, 18.03, 26.35 GA Res 3292 (XXIX) (1974) 29.54 GA Res 3314 (XXIX) (1974) 12.12, 26.35 GA Res 3318 (XXIX) (1974) 22.07, 26.35 GA Res 3327 (XXIX) (1974) 17.50 GA Res 3343 (XXIX) (1974) 5.65 GA Res 3346 (XXIX) (1974) 7.09, 9.32 GA Res 3349 (XXIX) (1974) 6.29, 6.72 GA Res 3357 (XXIX) (1974) 6.72, 6.82 GA Res 3360 (XXIX) (1974) 14.60 GA Res 3362 (S-VII) (1975) 5.05, 5.65, 7.10, 18.01 GA Res 3371 (XXX) (1975) 14.50 GA Res 3376 (XXX) (1975) 6.72, 6.80, 22.17 GA Res 3379 (XXX) (1975) 2.62, 29.27 GA Res 3384 (XXX) (1975) 26.35 GA Res 3447 (XXX) (1975) 22.11, 22.154 GA Res 3349 (XXIX) (1974) 6.82 GA Res 3452 (XXX) (1975) 22.11, 22.144(p. xc) GA Res 3521 (XXX) (1975) 22.140 GA Res 3538 (XXIX) (1975) 14.64 GA Res 3557 (XXIX) (1974) 15.18 GA Res 31/36 (1976) 23.17, 23.22 GA Res 31/93 (1976) 6.39, 6.72, 6.82, 6.133 GA Res 31/95 A (1976) 14.19, 14.49 GA Res 31/95 B (1976) 14.19

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GA Res 31/133 (1976) 6.80 GA Res 31/149 (1976 7.20 GA Res 31/152 (1976) 8.92 GA Res 31/153 (1976) 14.50 GA Res 31/161 (1976) 7.10 GA Res 31/169 (1976) 22.147 GA Res 31/192 (1976) 11.35, 14.24, 15.19 GA Res 32/2 (1977) 8.26 GA Res 32/9 E (1977) 14.50 GA Res 32/56 (1977) 21.06 GA Res 32/68 (1977) 23.22 GA Res 32/62 (1977) 22.144 GA Res 32/103 (1977) 6.69, 14.09 GA Res 32/107 (1977) 7.10 GA Res 32/130 (1977) 22.14 GA Res 32/155 (1977) 26.35 GA Res 32/156 (1977) 9.32 GA Res 32/162 (1977) 6.72, 6.84, 6.131 GA Res 32/167 (1977) 7.10 GA Res 32/197 (1977) 5.05, 5.65, 14.66, 21.26, 22.04 GA Res S-8/2 (1978) 14.27 GA Res S-9/2 (1978) 26.35 GA Res S-10/2 (1978) 6.72, 6.81, 25.81 GA Res 33/12 (1978) 14.48 GA Res 33/73 (1978) 26.35 GA Res 33/115 C (1978) 6.72, 6.82, 15.08 GA Res 33/134 (1978) 6.72, 6.80 GA Res 33/138 (1978) 2.27, 2.33 GA Res 33/161 (1978) 7.10

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GA Res 33/163 (1978) 22.151 GA Res 33/173 (1978) 22.12, 22.158 GA Res 33/202 (1979) 11.51 GA Res 33/205 (1979) 14.27 GA Res 34/22 (1979) 28.21 GA Res 34/30 (1979) 28.21 GA Res 34/45 (1979) 22.171 GA Res 34/47 (1979) 22.88 GA Res 34/49 (1979) 22.12 GA Res 34/88 (1979) 26.35 GA Res 34/92 C (1979) 14.50 GA Res 34/93 (1979) 26.35 GA Res 34/94 (1979) 22.17 GA Res 34/165 (1979) 15.56 GA Res 34/172 (1979) 22.151 GA Res 34/180 (1979) 17.20, 22.07, 22.139 GA Res 35/46 (1980) 26.35 GA Res 35/176 (1980) 22.11 GA Res 35/209 (1980) 22.50 GA Res 35/210 (1980) 15.23 GA Res 35/218 (1980) 22.169 GA Res 36/39 (1981) 25.04, 25.10 GA Res 36/55 (1981) 22.11 GA Res 36/100 (1981) 26.35 GA Res 36/103 (1981) 26.35 GA Res 36/106 (1981) 31.49 GA Res 36/125 (1981) 23.21 GA Res 36/137 (1981) 10.30, 15.41 GA Res 36/172 C (1981) 28.21

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GA Res 36/201 (1981) 6.72, 6.84 GA Res 36/225 (1981) 21.24 GA Res 36/242 (1981) 14.25 GA Res 37/7 (1982) 24.03 GA Res 37/10 (1982) 25.69, 26.35, 28.01, 28.02, 28.04, 28.06, 28.13, 28.25, 28.47, 28.54 GA Res 37/69 A (1982) 28.21 GA Res 37/99 K (1982) 6.72 GA Res 37/100 H (1982) 11.46 GA Res 37/240 (1980) 29.263 GA Res 38/39 C (1983) 28.21 GA Res 38/202 (1983) 21.23 GA Res 39/11 (1984) 26.35 GA Res 39/27 (1984) 15.19, 15.29 GA Res 39/46 (1984) 22.11, 22.143, 26.34 GA Res 39/111 (1984) 22.12 GA Res 39/125 (1984) 6.80 GA Res 39/146 A (1984) 26.13 GA Res 39/146 B (1984) 26.13 GA Res 39/247 B (1985) 14.49 GA Res 40/7 (1985) 28.21 GA Res 40/9 (1985) 28.01 GA Res 40/118 (1985) 23.21 GA Res 40/144 (1985) 22.11 GA Res 40/180 (1985) 7.10, 9.32, 11.39, 14.66 GA Res 40/188 (1985) 28.21 GA Res 40/237 (1985) 5.65, 14.63 GA Res 40/244 (1985) 15.29 GA Res 41/1 (1986) 15.45 GA Res 41/31 (1986) 28.21

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GA Res 41/120 (1986) 22.11 GA Res 41/164 (1986) 28.21 GA Res 41/176 (1986) 2.05 GA Res 41/206 (1986) 15.21 GA Res 41/210 (1986) 13.40, 16.34 GA Res 41/213 (1986) 2.05, 5.05, 5.65, 14.06, 14.15, 14.16, 14.17, 14.21, 14.63 GA Res 42/1 (1987) 28.55 GA Res 42/14 B (1987) 28.24 GA Res 42/18 (1987) 28.21 GA Res 42/22 (1987) 26.35 GA Res 42/102 (1987) 22.192 GA Res 42/176 (1987) 28.21(p. xci) GA Res 42/187 (1987) 24.03 GA Res 42/197 (1987) 25.74 GA Res 42/211 (1987) 14.16, 14.17 GA Res 42/214 (1987) 2.05 GA Res 42/216 A (1987) 14.55 GA Res 42/220 A (1987) 15.21 GA Res 42/224 (1987) 14.57 GA Res 42/225 (1987) 2.05 GA Res 42/318 (1987) 14.05 GA Res 42/450 (1987) 6.131, 6.133, 14.05 GA Res 43/11 (1987) 28.21 GA Res 43/14 (1988) 28.20 GA Res 43/19 (1988) 28.20 GA Res 43/24 (1988) 28.20, 28.24 GA Res 43/25 (1988) 28.20, 28.24 GA Res 43/26 A (1988) 28.24 GA Res 43/33 (1988) 28.20, 28.23, 28.24

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GA Res 43/48 (1988) 16.60 GA Res 43/51 (1988) 26.35, 28.01, 28.06, 28.25, 28.43, 28.58 GA Res 43/100 (1988) 22.170, 22.172 GA Res 43/115 (1988) 22.174, 22.216 GA Res 43/157 (1988) 9.28, 19.08, 20.02 GA Res 43/160 A (1988) 8.83 GA Res 43/173 (1988) 22.11 GA Res 43/177 (1988) 7.21, 8.87 GA Res 43/185 (1988) 28.21 GA Res 43/222 B (1988) 6.72, 6.82, 15.53 GA Res 44/10 (1989) 20.07, 28.20, 28.24 GA Res 44/15 (1989) 28.20, 28.24 GA Res 44/22 (1989) 28.20 GA Res 44/23 (1989) 25.82 GA Res 44/25 (1989) 22.11, 22.147, 26.34 GA Res 44/35 (1989) 25.41 GA Res 44/39 (1989) 31.47, 31.49 GA Res 44/88 (1989) 28.20, 28.24 GA Res 44/128 (1989) 22.132 GA Res 44/135 (1989) 22.172 GA Res 44/146 (1989) 20.02 GA Res 44/146 (1989) 9.28, 19.08 GA Res 44/147 (1989) 9.28, 20.02 GA Res 44/197 B (1989) 14.44 GA Res 44/198 (1989) 15.29 GA Res 44/228 (1989) 24.02 GA Res S-16/1 (1989) 26.35 GA Res 45/2 (1990) 9.28 GA Res 45/6 (1990) 8.84, 8.93

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GA Res 45/62 Α (1990) 26.35 GA Res 45/111 (1990) 22.11 GA Res 45/155 (1990) 22.228 GA Res 45/158 (1990) 22.11, 22.150 GA Res 45/177 (1990) 22.04 GA Res 45/179 (1990) 17.52 GA Res 45/193 (1990) 8.28 GA Res 45/199 (1990) 18.01 GA Res 45/212 (1990) 24.03 GA Res 45/229 (1993 8.35 GA Res 45/247 (1990) 14.55 GA Res 45/248 B (1990) 14.13 GA Res 45/258 (1991) 2.05, 14.53, 14.54 GA Res 45/259 C (1991) 15.22 GA Res 45/264 (1991) 5.30, 5.33, 22.04 GA Res 45/280 (1990) 16.68 GA Res 46/1 (1991) 8.26 GA Res 46/7 (1991) 8.74 GA Res 46/7 (1991) 9.28 GA Res 46/21 (1991) 10.30, 15.41 GA Res 46/59 (1991) 2.93, 13.30, 25.68, 28.01, 28.11, 28.25, 28.42, 28.43 GA Res 46/77 (1991) 2.03, 6.63 GA Res 46/86 (1991) 2.62, 29.277 GA Res 46/91 (1991) 22.11 GA Res 46/106 (1991) 23.36 GA Res 46/121 (1991) 22.12 GA Res 46/137 (1991) 15.10, 20.07, 20.18, 20.19 GA Res 46/152 (1992) 6.124, 17.52 GA Res 46/182 (1991) 21.04, 21.09, 21.12, 21.14, 21.22, 21.24, 23.03

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GA Res 46/185 C (1991) 6.124 GA Res 46/221 (1991) 14.50 GA Res 46/221 A (1991) 14.50 GA Res 46/223–46/230 (1992) 8.59 GA Res 46/235 (1992) 6.124 GA Res 46/236 (1992) 8.61 GA Res 46/237 (1992) 8.61 GA Res 46/238 (1992) 8.61 GA Res 46/241 (1992) 8.59 GA Res 47/1 (1992) 8.35, 8.63 GA Res 47/28 (1992) 16.68 GA Res 47/53 D (1992) 11.46 GA Res 47/57 (1992) 10.13 GA Res 47/94 (1992) 22.170 GA Res 47/105 (1992) 23.23 GA Res 47/111 (1992) 22.172 GA Res 47/112 (1992) 22.170 GA Res 47/120 A (1992) 28.01 GA Res 47/120 B (1993) 15.65, 28.01 GA Res 47/133 (1992) 22.11, 22.158 GA Res 47/134 (1992) 22.12 GA Res 47/135 (1992) 22.11 GA Res 47/191 (1991) 6.124, 10.03, 17.24, 18.12, 24.08 GA Res 47/192 (1992) 24.03 GA Res 47/196 (1993) 18.38 GA Res 47/217 (1992) 14.55 GA Res 47/221 (1993) 8.56 GA Res 47/222 (1993) 8.56 GA Res 47/225 (1993) 8.25, 8.61

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GA Res 47/227 (1987) 25.74, 25.76(p. xcii) GA Res 47/229 (1993) 8.64 GA Res 47/230 (1993) 8.54 GA Res 47/233 (1993) 2.03, 6.61, 6.63 GA Res 47/235 (1992) 14.19, 14.30, 31.16, 31.17 GA Res 47/236 (1993) 14.19 GA Res 48/26 (1993) 3.11, 6.72, 6.82 GA Res 48/57 (1993) 23.03 GA Res 48/96 (1993) 22.154 GA Res 48/104 (1993) 22.11 GA Res 48/116 (1993) 23.23 GA Res 48/122 (1993) 22.12 GA Res 48/127 (1993) 22.12 GA Res 48/133 (1993) 22.12 GA Res 48/134 (1993) 22.11, 22.12, 22.112 GA Res 48/141 (1993) 9.19, 22.87, 22.88, 22.89, 22.91, 22.92, 22.94, 22.96, 22.98, 22.120 GA Res 48/162 (1993) 5.04, 5.09, 5.33, 6.72, 6.80, 22.17 GA Res 48/218 (1993) 14.23 GA Res 48/218 B (1994) 29.224 GA Res 48/223 A (1993) 14.50 GA Res 48/244 (1994) 14.19 GA Res 48/251 (1993) 31.17 GA Res 48/264 (1994) 2.03, 2.31, 6.54, 6.63, 11.06 GA Res 48/265 (1994) 8.93 GA Res 49/2 (1994) 8.93 GA Res 49/28 (1994) 25.64 GA Res 49/30 (1994) 19.08 GA Res 49/57 (1994) 25.69, 26.35 GA Res 49/75 K (1994) 29.105

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GA Res 49/128 (1994) 6.124, 17.25 GA Res 49/143 (1995) 6.82 GA Res 49/169 (1994) 23.21, 23.23 GA Res 49/184 (1994) 22.119 GA Res 49/190 (1994) 9.28 GA Res 49/211 (1994) 22.170 GA Res 49/214 (1994) 25.81 GA Res 49/222 (1994) 15.56 GA Res 49/233 A (1994) 14.28, 14.55 GA Res 49/233 A, Sect I (1994) 14.13 GA Res 49/251 (1995) 14.30, 31.39 GA Res 49/426 (1994) 8.94 GA Res 50/8 (1995) 6.72, 6.80 GA Res 50/18 (1995) 28.20 GA Res 50/30 (1995) 28.20 GA Res 50/45 (1996) 25.45 GA Res 50/50 (1995) 25.69, 28.47 GA Res 50/53 (1995) 28.20 GA Res 50/54 (1995) 15.34 GA Res 50/55 (1996) 4.28 GA Res 50/75 (1995) 28.20 GA Res 50/80 B (1995) 28.20 GA Res 50/133 (1995) 9.28 GA Res 50/152 (1996) 23.22 GA Res 50/155 (1995) 22.163 GA Res 50/158 (1995) 28.20 GA Res 50/173 (1995) 22.12 GA Res 50/185 (1995) 9.28 GA Res 50/213 C (1996) 14.30

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GA Res 50/222 (1996) 14.57 GA Res 50/227 (1996) 5.26, 18.14 GA Res 51/13 (1996) 13.38 GA Res 51/19 (1996) 28.20 GA Res 51/31 (1998) 9.28 GA Res 51/50 (1996) 28.20 GA Res 51/55 (1996) 28.20 GA Res 51/75 (1996) 23.23 GA Res 51/104 (1996) 22.12 GA Res 51/136 (1996) 28.20 GA Res 51/151 (1996) 28.20 GA Res 51/156 (1996) 28.20 GA Res 51/157 (1996) 25.82 GA Res 51/158 (1996) 25.82 GA Res 51/193 (1997) 2.03, 2.88 GA Res 51/200 (1996) 10.30, 15.41 GA Res 51/210 (1996) 6.32, 6.72, 6.83, 25.69, 26.35 GA Res 51/226 (1997) 15.26, 15.56 GA Res 51/227 (1997) 16.68 GA Res 51/229 (1997) 24.03 GA Res 51/230 (1997) 7.11 GA Res 51/240 (1997) 7.47 GA Res 51/241 (1997) 6.63 GA Res 51/242 (1997) 28.01 GA Res 51/243 (1997) 15.24 GA Res 52/12 B (1997) 15.66 GA Res 52/18 (1997) 9.28 GA Res 52/20 (1997) 28.20 GA Res 52/26 (1997) 25.64

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GA Res 52/43 (1997) 28.20 GA Res 52/48 (1997) 28.20 GA Res 52/56 (1997) 28.20 GA Res 52/69 (1997) 28.20 GA Res 52/103 (1997) 23.29 GA Res 52/108 (1998) 22.08 GA Res 52/127 (1997) 22.12 GA Res 52/129 (1998) 9.28, 20.09 GA Res 52/150 (1997) 27.96 GA Res 52/153 (1997) 25.82 GA Res 52/163 (1997) 6.54, 6.63 GA Res 52/166 (1997) 29.209 GA Res 52/214 (1997) 15.53 GA Res 52/215 A (1997) 14.49 GA Res 52/247 (1998) 13.34, 13.38 GA Res 52/251 (1998) 7.17, 11.43 GA Res 53/30 (1998) 10.07, 10.08 GA Res 53/35 (1999) 13.44, 27.88, 28.17 GA Res 53/51 (1999) 28.43(p. xciii) GA Res 53/71 (1998) 28.20 GA Res 53/82 (1998) 28.20 GA Res 53/91 (1998) 28.20 GA Res 53/92 (1998) 28.20 GA Res 53/97 (1998) 28.20 GA Res 53/98 (1999) 6.63 GA Res 53/105 (1998) 31.49 GA Res 53/138 (1999) 22.216 GA Res 53/153 (1998) 22.13 GA Res 53/212 (1998) 14.30, 31.17

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GA Res 53/221 (1999) 15.26 GA Res 53/242 (1999) 24.23 GA Res 53/243 (1999) 26.35, 28.01 GA Res 53/251 (1998) 15.14 GA Res 54/4 (1999) 22.142 GA Res 54/28 (2000) 25.82 GA Res 54/33 (1999) 6.72, 25.64 GA Res 54/35 (1999), 28.20 GA Res 54/59 (1999) 28.20 GA Res 54/81 B (1999) 28.20 GA Res 54/94 (1999) 28.20 GA Res 54/105 (1999) 31.49 GA Res 54/110 (1999) 25.69, 28.20 GA Res 54/161 (1999) 22.13 GA Res 54/189 A (1999) 28.20 GA Res 54/196 (2000) 5.26 GA Res 54/234 (2000) 6.38, 6.72, 6.81 GA Res 54/237 C (1999) 14.62 GA Res 54/246 (2000) 31.185 GA Res 54/263 (2000) 22.149 GA Res S-24/2 (2000) 17.12 GA Res 55/2 (2000) 3.12, 14.04, 17.05, 17.10, 17.51, 18.34, 18.37, 24.03 GA Res 55/5 B (2000) 14.49, 14.64 GA Res 55/7 (2001) 25.64 GA Res 55/12 (2000) 8.65 GA Res 55/14 (2000) 6.63 GA Res 55/25 (2000) 26.34 GA Res 55/61 (2001) 6.72, 6.83 GA Res 55/94 (2000) 22.13

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GA Res 55/96 (2001) 19.20 GA Res 55/153 (2000) 25.36 GA Res 55/199 (2001) 24.02 GA Res 55/217 (2000) 5.63 GA Res 55/235 (2000) 14.51, 14.52 GA Res 55/236 (2000) 14.51, 14.53 GA Res 55/259 (2001) 15.26 GA Res 55/283 (2001) 11.43, 31.62 GA Res 55/285 (2001) 2.03, 6.63 GA Res 56/12 (2001) 25.64 GA Res 56/89 (2002) 6.72, 6.83 GA Res 56/93 (2001) 25.69 GA Res 56/107 (2001) 21.22 GA Res 56/125 (2002) 6.82 GA Res 56/167 (2001) 22.12 GA Res 56/168 (2002) 6.72, 6.83, 25.68 GA Res 56/206 (2002 6.72, 6.75, 6.84, 6.131 GA Res 56/226 (2002) 24.02 GA Res 56/227 (2002) 18.41 GA Res 56/249 (2002) 31.185 GA Res 56/253 (2002) 15.03, 29.218 GA Res 56/254 D (2002) 25.13 GA Res 56/255 (2001) 14.08 GA Res 56/272 (2001) 22.169, 25.13 GA Res 56/280 (2002) 16.79 GA Res 56/281 (2001) 31.40 GA Res 56/509 (2002) 2.03, 2.12, 2.32, 6.63 GA Res 57/4 B (2002) 14.62 GA Res 57/20 (2002) 25.59

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GA Res 57/23 (2002) 10.09 GA Res 57/26 (2002) 25.69 GA Res 57/28 (2002) 25.69 GA Res 57/32 (2002) 8.93 GA Res 57/61 (2002) 6.72, 6.82 GA Res 57/141 (2002) 6.72, 25.64 GA Res 57/150 (2002) 21.07 GA Res 57/191 (2003) 22.08 GA Res 57/199 (2002) 22.146 GA Res 57/212 (2002) 22.12 GA Res 57/225 (2003) 31.128 GA Res 57/228 (2002) 31.125 GA Res 57/228 B (2003) 31.125 GA Res 57/270 (2003) 6.72, 6.82 GA Res 57/270 B (2003) 22.04 GA Res 57/288 (2003) 14.31 GA Res 57/292 (2002) 14.65 GA Res 57/300 (2002) 6.63, 22.217 GA Res 57/301 (2003) 2.03, 2.12, 2.61, 6.63 GA Res 57/305 (2003) 15.26 GA Res 57/307 (2003) 15.32 GA Res 57/327 (2003) 31.185 GA Res 57/337 (2003) 28.59 GA Res 58/4 (2003) 26.34 GA Res 58/90 (2003) 25.03 GA Res 58/126 (2004) 2.03, 2.61, 2.77, 6.63 GA Res 58/153 (2004) 23.01, 23.02 GA Res 58/180 (2003) 9.28 GA Res 58/181 (2003) 22.12

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GA Res 58/189 (2003) 9.28 GA Res 58/232 (2003) 7.11, 7.38 GA Res 58/260 (2003) 31.185 GA Res 58/269 (2003) 14.04, 14.08 GA Res 58/273 (2003) 29.255 GA Res 58/314 (2003) 8.83, 8.87 GA Res 58/316 (2004) 2.03, 6.63 GA Res 58/318 (2004) 7.17, 31.51 GA Res ES/10–15 (2004) 28.35, 28.36 GA Res 59/2 (2004) 25.03 GA Res 59/24 (2004) 6.72 GA Res 59/35 (2004) 25.58(p. xciv) GA Res 59/38 (2004) 26.34 GA Res 59/95 (2004) 6.63 GA Res 59/113 B (2005) 22.119 GA Res 59/141 (2005) 21.23 GA Res 59/172 (2004) 23.33 GA Res 59/200 (2004) 22.12 GA Res 59/261 (2004) 22.170 GA Res 59/266 (2004) 15.26, 15.32 GA Res 59/268 (2004) 15.29 GA Res 59/270 (2004) 30.09 GA Res 59/272 (2004) 14.23 GA Res 59/275 (2004) 14.04 GA Res 59/283 (2005) 15.32 GA Res 59/290 (2005) 12.03 GA Res 59/313 (2005) 2.03, 2.76, 2.77, 2.78, 6.63, 6.82, 28.22 GA Res 60/1 (2005) 3.51, 4.02, 4.29, 5.64, 5.66, 5.70, 6.96, 6.105, 14.04, 14.39, 15.11, 19.01, 19.06, 19.10, 19.20, 22.04, 22.39, 24.03 GA Res 60/1 (2005) 17.10

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GA Res 60/42 (2005) 25.69 GA Res 60/124 (2005) 21.22 GA Res 60/128 (2005) 23.33 GA Res 60/129 (2005 23.35 GA Res 60/154 (2005) 22.12 GA Res 60/180 (2005) 5.64, 6.39, 6.72, 6.81, 22.17, 27.121 GA Res 60/247 A–C (2005) 14.19 GA Res 60/248 (2006) 6.72, 6.82 GA Res 60/251 (2006) 5.62, 6.124, 8.35, 22.39, 22.40, 22.41, 22.42, 22.43, 22.45, 22.46, 22.47, 22.50, 22.60, 22.68, 22.74 GA Res 60/180 (2005) 28.32 GA Res A/60/180 (2005) 28.31, 28.32 GA Res 60/230 (2006) 22.170 GA Res 60/251 (2006) 6.72, 6.80, 10.07 GA Res 60/260 (2006) 15.11 GA Res 60/264 (2006) 8.54 GA Res 60/283 (2006) 15.11 GA Res 60/286 (2006) 2.03, 2.76, 2.77, 2.78, 6.63 GA Res 61/3 (2006) 15.44, 15.46 GA Res 61/16 (2007) 5.26, 5.29, 5.31, 5.64, 5.70, 5.71, 15.15, 17.57, 22.04 GA Res 61/29 (2006) 6.72 GA Res 61/36 (2006) 25.43 GA Res 61/39 (2006) 25.56, 25.83 GA Res 61/106 (2006) 22.11, 22.153, 22.154, 22.156, 26.34 GA Res 61/110 (2007) 25.03 GA Res 61/137 (2006) 23.22, 23.23 GA Res 61/157 (2006) 22.12 GA Res 61/177 (2006) 22.11, 22.157 GA Res 61/208 (2006) 7.16 GA Res 61/251 (2006) 14.65

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GA Res 61/256 (2007) 14.29 GA Res 61/257 (2007) 15.05 GA Res 61/261 (2007) 15.43 GA Res 61/262 (2007) 29.263, 29.265, 29.272, 29.279, 29.280 GA Res A/61/262 (2007) 29.268, 29.269, 29.270, 29.271, 29.273, 29.274, 29.275, 29.278 GA Res 61/276 (section III) (2007) 14.28 GA Res 61/279 (2007) 14.29 GA Res 61/292 (2007) 2.03, 6.63 GA Res 61/295 (2007) 22.11, 22.47 GA Res 62/1 (2007) 14.60 GA Res 62/61 (2007) 25.58 GA Res 62/70 (2007) 15.53, 25.56, 25.83 GA Res 62/87 (2007) 14.65 GA Res 62/101 (2008) 25.03 GA Res 62/159 (2007) 22.12 GA Res 62/171 (2007) 22.12 GA Res 62/218 (2008) 22.170 GA Res 62/228 (2007) 6.72, 15.34 GA Res 62/236 (2007) 14.04 GA Res 62/238 (2007) 29.252 GA Res 62/239 (2007) 14.20 GA Res 62/240 (2007) 14.25 GA Res 62/250 (2009) 15.27 GA Res 62/276 (2008) 2.03 GA Res 63/3 (2008) 11.06 GA Res 63/112 (2009) 25.03 GA Res 63/117 (2008) 17.41 GA Res 63/128 (2008) 25.56 GA Res 63/172 (2009) 22.116

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GA Res 63/240 (2008) 6.72 GA Res 63/250 (2010) 15.27 GA Res 63/253 (2009) 15.32, 15.33, 15.34 GA Res 63/254 (2007) 14.30 GA Res 63/255 (2007) 14.30 GA Res 63/256 (2008) 31.19 GA Res 63/261 (2008) 14.08 GA Res 63/290 (2009) 14.11 GA Res 63/296 (2009) 14.11 GA Res 63/305 (2009) 6.72 GA Res 63/308 (2009) 2.77 GA Res 63/309 (2009) 2.03 GA Res 64/2 (2009) 14.60 GA Res 64/3 (2009) 8.93, 8.94 GA Res 64/89 (2010) 16.45 GA Res 64/115 (2009) 25.69 GA Res 64/116 (2009) 25.56 GA Res 64/122 (2009) 8.84 GA Res 64/155 (2009) 20.12, 20.29 GA Res 64/168 (2010) 22.35 GA Res 64/172 (2010) 22.120(p. xcv) GA Res 64/225 (2009) 25.79 GA Res 64/243 (2009) 14.11 GA Res 64/255 (2010) 25.81 GA Res 64/261 (2010) 31.40 GA Res 64/289 (2010) 6.75, 6.138, 15.22, 17.48, 28.36 GA Res 64/301 (2010) 2.03, 6.72 GA Res 65/1 (2010) 17.51, 28.46 GA Res 65/28 (2010) 25.58

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GA Res 65/37 (2011) 6.72 GA Res 65/161 (2010) 25.81 GA Res 65/182 (2010) 6.72 GA Res 65/194 (2010) 23.27 GA Res 65/247 (2011) 15.21 GA Res 65/248 (2010) 15.27 GA Res 65/258 (2010) 29.257 GA Res 65/265 (2011) 22.43 GA Res 65/269 (2011) 14.65 GA Res 65/276 (2011) 8.83, 10.03 GA Res 65/281 (2011) 22.14, 22.44, 22.46, 22.48, 22.50, 22.53, 22.55, 22.56, 22.57, 22.58, 22.61, 22.63, 22.64, 22.67, 22.77, 22.78 GA Res 65/283 (2011) 28.46 GA Res 65/308 (2011) 8.54 GA Res 65/315 (2011) 2.03 GA Res 66/11 (2011) 22.43 GA Res 66/100 (2011) 6.21 GA Res 66/119 (2011) 21.22 GA Res 66/102 (2011) 25.56 GA Res 66/135 (2011) 23.39 GA Res 66/137 (2011) 22.119 GA Res 66/163 (2012) 19.13, 19.20 GA Res 66/169 (2011) 22.12 GA Res 66/176 (2012) 26.33 GA Res 66/197 (2012) 24.02 GA Res 66/253 (2012) 26.33 GA Res 66/237 (2011) 15.34 GA Res 66/247 (2011) 14.56 GA Res 66/254 (2012) 22.222 GA Res 66/288 (2012) 5.09, 6.125, 17.05, 24.04, 26.35

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GA Res 66/291 (2012) 28.46 GA Res 66/294 (2012) 2.03, 6.63 GA Res 66/811 (2012) 28.46 GA Res 66/295 (2012) 22.222 GA Res 67/1 (2012) 9.16, 19.19, 25.56 GA Res 67/2 (2012) 14.62 GA Res 67/19 (2012) 7.23, 8.08, 8.84, 8.87, 12.06 GA Res 67/97 (2012) 25.56 GA Res 67/161 (2012) 22.170, 22.182 GA Res 67/164 (2013) 22.12 GA Res 67/203 (2013) 24.04 GA Res 67/213 (2012) 24.17, 24.25 GA Res 67/226 (2012) 17.59, 17.62 GA Res 67/238 (2012) 14.59 GA Res 67/251 (2013) 6.72 GA Res 67/261 (2013) 14.57 GA Res 67/262 (2013) 26.33 GA Res 67/290 (2013) 5.09, 5.33, 6.124, 24.04, 24.08 GA Res 67/297 (2013) 2.03, 6.63 GA Res 68/1 (2013) 5.17, 5.20, 5.29, 5.31, 5.33, 5.35, 5.55, 5.64, 5.70, 5.71, 7.45, 18.10, 18.15 GA Res 68/2 (2013) 22.222 GA Res 68/11 (2014) 26.33 GA Res 68/80 (2013) 26.33 GA Res 68/83 (2013) 26.33 GA Res 68/105 (2013) 16.81 GA Res 68/112 (2013) 25.80 GA Res 68/116 (2013) 25.56 GA Res 68/119 (2013) 25.69 GA Res 68/164 (2014) 20.03

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GA Res 68/182 (2014) 26.33 GA Res 68/183 (2014) 26.33 GA Res 68/184 (2014) 26.33 GA Res 68/231 (2013) 25.81 GA Res 68/242 (2014) 26.33 GA Res A 68/248 (2013) 14.03 GA Res 68/250 (2013) 14.25 GA Res 68/255 (2014) 14.30, 29.253 GA Res 68/256 (2014) 14.30, 29.253 GA Res 68/264 (2014) 15.30 GA Res 68/268 (2014) 22.164, 22.165, 22.170, 22.177, 22.178, 22.179, 22.191, 22.224, 22.225 GA Res 68/280 (2014) 28.24 GA Res 68/281 (2014) 14.57 GA Res 68/303 (2014) 28.46 GA Res 68/307 (2014) 2.03, 6.63 GA Res 69/15 (2014) 18.35 GA Res A 69/18 (2014) 26.33 GA Res 69/93 (2014) 26.33 GA Res 69/114 (2014) 16.81 GA Res 69/123 (2014) 19.10, 25.56 GA Res 69/124 (2014) 25.57 GA Res 69/183 (2014) 22.12 GA Res 69/188 (2015) 22.12, 26.33 GA Res 69/189 (2015) 22.12, 26.33 GA Res 69/190 (2015) 22.12, 26.33 GA Res 69/203 (2014) 15.33, 15.34 GA Res 69/209 (2015) 18.08 GA Res 69/210 (2015) 18.08 GA Res 69/211 (2015) 18.08

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GA Res 69/212 (2015) 18.08 GA Res 69/213 (2015) 18.08 GA Res 69/248 (2015) 22.12, 26.33(p. xcvi) GA Res 69/255 (2014) 31.39 GA Res 69/264 (2014) 14.06 GA Res 69/313 (2015) 5.26, 26.35 GA Res 69/320 (2015) 8.87 GA Res 69/321 (2015) 2.03, 2.76, 2.77, 15.42, 17.57 GA Res 70/1 (2015) 17.05, 17.09, 17.10, 18.05, 22.120, 26.35 GA Res 70/2 (2015) 14.62 GA Res 70/77 (2016) 26.33 GA Res 70/90 (2015) 25.33 GA Res 70/112 (2015) 15.34 GA Res 70/114 (2015) 16.81, 25.55 GA Res 70/117 (2015) 25.55 GA Res 70/148 (2015) 22.12 GA Res 70/163 (2015) 22.12 GA Res 70/170 (2015) 17.14 GA Res 70/172 (2016) 26.33 GA Res 70/173 (2016) 26.33 GA Res 70/182 (2015) 17.14 GA Res 70/183 (2016) 17.14 GA Res 70/205 (2015) 17.14 GA Res 70/217 (2015) 18.42 GA Res 70/233 (2016) 26.33 GA Res 70/234 (2016) 26.33 GA Res B 70/240 (2015) 14.43, 14.44 GA Res 70/241 (2015) 14.02 GA Res 70/242 (2015) 14.02, 14.31

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GA Res 70/245 (2015) 14.49, 14.59 GA Res 70/246 (2015) 14.27 GA Res 70/247 (2015) 14.17 GA Res 70/248 (2015) 14.08 GA Res 70/249 (2015) 14.27 GA Res 70/249 B (2015) 14.43, 14.44 GA Res 70/250 (2015) 14.20, 15.54 GA Res 70/286 (section I) (2016) 14.28 GA Res 70/296 (2016) 7.16 GA Res 70/299 (2016) 18.34 GA Res 70/304 (2016) 28.46 GA Res 70/305 (2016) 2.03, 2.76, 2.77, 2.78, 6.63, 15.42 GA Res 71/L.4 (2016) 15.41, 15.44 GA Res 71/2 (2016) 14.60, 14.62 GA Res 71/98 (2016) 26.33 GA Res 71/130 (2016) 26.33 GA Res 71/134 (2016) 16.81 GA Res 71/159 (2016) 17.14 GA Res 71/160 (2016) 17.14 GA Res 71/161 (2016) 17.14 GA Res 71/162 (2016) 17.14, 17.16 GA Res 71/202 (2017) 26.33 GA Res 71/203 (2017) 26.33 GA Res 71/204 (2017) 26.33 GA Res 71/205 (2017) 26.33 GA Res 71/266 (2016) 15.33, 15.34 General Assembly Rules of Procedure GA Res 73 (11) (1947) (GA Rule) 2.05, 2.07, 2.10, 2.68, 6.50, 10.14, 11.06 Annex I, para 39 10.31 Annex IV, paras 74–76 10.26

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Annex IV, para 79 10.21 Annex IV, para 84 10.13 Annex IV, para 104 10.14 Annex V, para 6 10.26 Annex V, para 7 10.26 Annex VI, para 16 10.28 Ch IV 8.72 Ch XII 14.61 Ch XIII 6.51, 10.02, 14.61 Ch XVII 6.51 GA Rule 1 2.12 GA Rule 2 2.12 GA Rule 3 2.12 GA Rule 4 2.12 GA Rule 8 2.13 GA Rule 8(a) 2.13 GA Rule 8(b) 2.13, 2.16 GA Rule 9 2.13 GA Rule 9(b) 2.16 GA Rule 10 2.56 GA Rule 11 7.48 GA Rule 12 2.56 GA Rule 13 2.56, 8.81 GA Rule 13(a) 15.55 GA Rule 13(b) 7.48 GA Rule 13(g) 15.49 GA Rule 15 2.57 GA Rule 19 10.05 GA Rule 21 2.59

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GA Rule 23 2.74 GA Rule 25 2.05, 2.06 GA Rules 27–29 8.72 GA Rule 27 2.81, 6.68, 8.72, 8.78, 15.63 GA Rule 28 6.68 GA Rule 29 8.72 GA Rule 30 10.31 GA Rule 32 2.74 GA Rule 35 2.74 GA Rule 38 6.66 GA Rule 40 2.20, 2.56, 6.67 GA Rule 41 2.12, 6.67 GA Rule 43 6.66 GA Rule 45 6.24, 6.48, 15.49, 15.50 GA Rule 46 15.49, 15.50 GA Rule 47 15.07 GA Rule 60 2.10, 6.48, 6.53, 25.20 GA Rule 61 2.10 GA Rule 65 2.19, 6.56 GA Rule 66 2.19, 6.22, 6.53, 6.56 GA Rule 67 10.11(p. xcvii) GA Rule 68 2.74 GA Rule 71 2.74, 10.21 GA Rule 73 10.20 GA Rule 74 2.70, 2.74, 10.18, 10.20 GA Rule 75 10.20 GA Rule 77 10.23 GA Rule 78 2.74, 10.20 GA Rule 79 10.20, 10.23

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GA Rule 80 10.20 GA Rule 81 2.67, 10.62 GA Rule 82 2.23 GA Rule 83 2.23, 2.35 GA Rule 85 2.23, 10.08 GA Rule 86 3.53, 5.12, 10.09 GA Rule 87 10.12 GA Rule 87(a) 2.67 GA Rule 87(b) 10.12 GA Rule 87(1) 10.09 GA Rule 88 10.20, 10.21, 10.26, 10.56 GA Rule 89 10.20 GA Rule 90 10.25 GA Rule 91 10.20, 10.24 GA Rule 92 2.25, 2.32, 2.39, 2.71, 10.28 GA Rule 93 10.07 GA Rule 94 (formerly 96) 2.45 GA Rule 95 6.56 GA Rule 100 6.53 GA Rule 101 2.06, 2.22 GA Rule 102 (formerly 104) 6.25, 6.53 GA Rule 103 6.54, 10.28, 14.14 GA Rule 104 6.25, 6.55 GA Rule 106 6.54 GA Rule 107 6.54 GA Rule 108 6.55, 10.11 GA Rule 109 6.54 GA Rule 113 10.21 GA Rule 115 10.20

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GA Rule 116 10.20 GA Rule 117 10.20 GA Rule 119 10.23 GA Rule 120 10.20 GA Rule 121 10.20, 10.23 GA Rule 122 10.20 GA Rule 124 6.55 GA Rule 125 6.55, 10.02, 10.05 GA Rule 126 6.55 GA Rule 128 10.20, 10.21, 10.26 GA Rule 129 10.19, 10.20 GA Rule 130 10.25 GA Rule 131 10.20, 10.24 GA Rule 133 6.56 GA Rule 134 8.07 GA Rule 135 8.19 GA Rule 139 2.48, 10.61 GA Rule 140 2.48 GA Rule 141 2.10, 15.41 GA Rule 145 2.48 GA Rule 146 2.48 GA Rule 151 2.45 GA Rule 153 6.62, 14.08, 14.13, 14.15 GA Rule 154 14.13 GA Rules 155–157 6.62 GA Rule 155 6.62, 6.69, 14.09 GA Rule 156 6.69, 14.09 GA Rule 157 6.69, 7.48, 14.08, 14.09, 14.10, 14.11, 14.12 GA Rules 158–160 6.62

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GA Rule 158 6.70, 14.48 GA Rule 159 6.70, 14.48 GA Rule 160 6.70, 14.48, 14.49, 14.50 GA Rule 161 (formerly 162) 6.33, 6.48

Human Rights Committee Rules of Procedure of the Human Rights Committee r 84(2) 22.186 r 86 22.186 r 90 22.187 r 91 22.187 r 92 22.189 r 93(2) 22.187 r 93(3) 22.187 r 95(1) 22.187 r 96 22.187 r 104 22.187

Human Rights Council HRC Decision 1/102 (2006) 22.60 HRC Decision 3/103 (2006) 22.85 HRC Decision 6/102 (2007) 22.53, 22.61 HRC Decision 17/119 (2011) 22.49, 22.55, 22.58 HRC Decision OM/7/101 (2013) 22.59 HRC Decision 1/1 (2006) 22.47, 22.158 HRC Res 1/2 (2006) 22.47 HRC Res 1/4 (2006) 22.85 HRC Res 4/4 (2006) 22.85 HRC Res 1/5 (2006) 22.85 HRC Res 2/1 (2007) 22.61

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HRC Res 5/1 (2007) 22.43, 22.44, 22.49, 22.50, 22.51, 22.52, 22.53, 22.54, 22.56, 22.58, 22.61, 22.68, 22.69, 22.70, 22.71, 22.72, 22.73, 22.74, 22.76, 22.77, 22.78, 22.79, 22.115 HRC Res 6/13 (2007) 22.82 HRC Res 6/15 (2007) 22.81 HRC Res 6/16 (2007) 22.80(p. xcviii) HRC Res 6/21 (2007) 22.85 HRC Res 6/30 (2007) 22.78 HRC Res 6/36 (2007) 22.80 HRC Res 8/2 (2008) 22.47, 22.134 HRC Res 8/13 (2008) 22.78 HRC Res 9/9 (2008) 22.78 HRC Res 9/19 (2008) 22.61 HRC Res 10/12 (2009) 22.78 HRC Res 11/11 (2009) 22.61 HRC Res 12/2 (2009) 22.64 HRC Res 12/15 (2009) 22.112 HRC Res 15/26 (2010) 22.85 HRC Res 16/1 (2011) 22.119 HRC Res 16/21 (2011) 22.44, 22.48, 22.49, 22.61, 22.63, 22.67 HRC Res S-17/1 (2011) 22.75 HRC Res 17/4 (2011) 22.83 HRC Res 21/19 (2012) 22.85 HRC Res 19/23 (2012) 22.81 HRC Res 19/36 (2012) 19.06, 19.07, 19.20 HRC Res 20/14 (2012) 22.114 HRC Res 21/1 (2012) 22.72 HRC Res 21/11 (2012) 18.38 HRC Res 24/30 (2013) 22.61 HRC Res 22/33 (2013) 22.85

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HRC Res S-22/1 (2014) 22.104 HRC Res 9/8 (2014) 22.223 HRC Res 25/1 (2014) 22.75, 22.104 HRC Res 28/7 (2015) 22.85 HRC Res 29/13 (2015) 22.104 HRC Res 28/14 (2015) 19.21, 22.84 HRC Res 29/19 (2015) 22.82 HRC Res 30/25 (2015) 22.58 HRC Res S-24/1 (2015) 22.75 HRC Res 31/20 (2016) 22.75 HRC Res 32/27 (2016) 22.82 Rules of Procedure of the Human Rights Council r 9(b) 22.44 r 10 22.44 r 11 22.44 r 69(1) 22.182 Rules of Procedure of the Human Rights Council Advisory Committee Annex III, r 12(2) 22.77 r 2 22.76

International Court of Justice Resolution concerning the Internal Judicial Practice of the Court 29.306 Arts 1–7 29.314 Art 1 29.307 Art 1(i) 29.308 Art 1(ii) 29.309 Art 1(iii) 29.310 Art 2 29.311 Art 3 29.311 Art 3(ii) 29.311 Arts 4–7 29.312

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Art 8 29.313 Art 9 29.314 Art 9(11) 29.314

Security Council SC Res 1 (1946) 6.94 SC Res 9 (1946) 29.290 SC Res 21 (1947) 3.79 SC Res 22 (1947) 28.35, 31.61 SC Res 29 (1947) 8.54 SC Res 36 (1947) 27.81 SC Res 47 (1948) 27.34 SC Res 48 (1948) 27.81 SC Res 50 (1948) 26.45 SC Res 58 (1948) 29.08 SC Res 80 (1950) 6.118 SC Res 83 (1950) 26.97, 26.99 SC Res 84 (1950) 26.99, 26.100 SC Res 109 (1955) 8.12 SC Res 111 (1956) 8.40 SC Res 119 (1956) 28.08 SC Res 134 (1960) 26.51 SC Res 139 (1960) 8.56 SC Res 143 (1960) 15.64, 27.30 SC Res 144 (1960) 28.54 SC Res 145 (1960) 27.30 SC Res 146 (1960) 15.64, 26.88, 27.30 SC Res 158 (1960) 8.56 SC Res 159 (1960) 8.56 SC Res 161 (1961) 27.48, 27.50, 27.72, 27.74, 27.85

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SC Res 179 (1963) 14.27 SC Res 181 (1963) 26.51, 26.54 SC Res 182 (1963) 26.51 SC Res 186 (1964) 6.118, 27.82, 27.85, 27.97, 28.24 SC Res 189 (1964) 6.117, 28.24 SC Res 191 (1964) 26.51 SC Res 199 (1964) 28.54 SC Res 203 (1965) 6.118 SC Res 213 (1965) 8.54 SC Res 215 (1965) 6.118 SC Res 216 (1965) 26.49, 26.88, 26.106 SC Res 217 (1965) 26.49, 26.55, 26.62, 26.69, 26.106 SC Res 221 (1966) 26.55, 26.69, 26.88, 26.106, 26.107(p. xcix) SC Res 232 (1966) 8.22, 26.50, 26.64 SC Res 235 (1968) 26.66 SC Res 237 (1967) 22.22 SC Res 242 (1967) 6.118 SC Res 253 (1968) 6.109, 26.50, 26.64, 26.66 SC Res 264 (1969) 27.100 SC Res 269 (1969) 8.40 SC Res 276 (1970) 6.104, 9.67, 26.66 SC Res 277 (1970) 26.64 SC Res 282 (1970) 26.51 SC Res 284 (1970) 3.72 SC Res 289 (1970) 6.117 SC Res 294 (1971) 6.117 SC Res 298 (1971) 6.117 SC Res 307 (1971) 6.118, 22.22, 22.29 SC Res 309 (1972) 6.115, 6.117

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SC Res 311 (1972) 26.51 SC Res 314 (1972) 26.66 SC Res 319 (1972) 6.118 SC Res 325 (1973) 6.102 SC Res 326 (1973) 6.117 SC Res 341 (1973) 16.85 SC Res 351 (1974) 8.54 SC Res 377 (1975) 6.117 SC Res 384 (1975) 6.118 SC Res 395 (1976) 28.35 SC Res 400 (1976) 15.45 SC Res 403 (1977) 6.117 SC Res 404 (1977) 6.117 SC Res 415 (1977) 6.118 SC Res 417 (1977) 26.62 SC Res 418 (1977) 26.52, 26.55, 26.59, 26.64, 26.66 SC Res 421 (1977) 26.52 SC Res 425 (1978) 27.97 SC Res 431 (1978) 6.118 SC Res 421 (1977) 6.109 SC Res 446 (1979) 22.22 SC Res 455 (1979) 6.104 SC Res 457 (1979) 15.64 SC Res 460 (1979) 6.109, 26.50 SC Res 465 (1980) 22.22 SC Res 471 (1980) 22.22 SC Res 476 (1980) 22.22 SC Res 479 (1980) 28.54 SC Res 500 (1982) 28.08

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SC Res 527 (1982) 6.117 SC Res 530 (1983) 28.54 SC Res 540 (1983) 22.22, 22.29, 28.24 SC Res 568 (1985) 6.117 SC Res 582 (1986) 22.22 SC Res 598 (1987) 22.22, 28.24 SC Res 620 (1988) 6.117 SC Res 621 (1988) 28.24 SC Res 632 (1989) 20.06 SC Res 635 (1989) 12.04 SC Res 643 (1989) 28.24 SC Res 649 (1990) 28.24 SC Res 650 (1990) 27.12, 28.24 SC Res 660 (1990) 26.59, 26.69, 26.101, 30.01 SC Res 661 (1990) 6.109, 26.59, 26.64, 26.69, 26.101, 26.108 SC Res 664 (1989) 27.12 SC Res 665 (1990) 26.69, 16.108, 26.109, 26.110, 26.111 SC Res 667 (1990) 30.01 SC Res 670 (1990) 22.22, 30.01 SC Res 674 (1990) 22.22 SC Res 678 (1990) 26.98, 26.101, 26.102, 26.103 SC Res 683 (1990) 3.79 SC Res 686 (1991) 6.118, 30.01 SC Res 687 (1991) 6.90, 6.106, 6.118, 6.141, 13.24, 24.06, 26.62, 26.98, 27.12, 28.43, 30.01, 30.04, 30.07, 30.08, 30.11, 30.32, 30.33, 30.34 SC Res 688 (1991) 9.31, 22.20 SC Res 689 (1991) 27.12, 27.74 SC Res 690 (1991) 28.14 SC Res 692 (1991) 6.106, 30.02, 30.05, 30.07, 30.33 SC Res 705 (1991) 30.34

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SC Res 709 (1991) 8.54 SC Res 710 (1991) 8.54 SC Res 711 (1991) 8.54 SC Res 712 (1991) 30.34 SC Res 713 (1991) 26.62, 26.64 SC Res 724 (1991) 6.109 SC Res 727 (1991) 27.57 SC Res 731 (1992) 3.57, 26.64 SC Res 732 (1992) 8.59 SC Res 733 (1992) 22.20, 26.62, 26.64 SC Res 741 (1992) 8.59 SC Res 742 (1992) 8.59 SC Res 743 (1992) 26.117 SC Res 745 (1992) 20.05, 27.102 SC Res 746 (1992) 22.20 SC Res 748 (1992) 6.109, 13.24, 26.62, 26.64, 26.76 SC Res 749 (1992) 23.03 SC Res 751 (1992) 6.109, 22.37, 27.97 SC Res 757 (1992) 26.60, 26.62, 26.64, 26.66, 26.111 SC Res 764 (1992) 22.22 SC Res 769 (1992) 27.83 SC Res 770 (1992) 26.97, 26.117, 26.118, 27.57 SC Res 771 (1992) 22.22 SC Res 777 (1992) 8.35, 8.62, 8.64 SC Res 778 (1992) 26.115, 30.35(p. c) SC Res 780 (1992) 6.106, 22.22, 22.33, 31.01 SC Res 781 (1992) 26.118 SC Res 787 (1992) 22.22, 26.111, 26.114 SC Res 788 (1992) 22.22, 26.62, 26.64

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SC Res 792 (1992) 26.57 SC Res 794 (1992) 6.106, 9.31, 22.20, 22.22, 26.97, 26.118 SC Res 795 (1992) 25.60 SC Res 800 (1993) 8.56 SC Res 801 (1993) 8.56 SC Res 804 (1993) 22.22 SC Res 807 (1993) 27.57 SC Res 808 (1993) 6.116, 17.33, 22.22, 31.01, 31.02, 31.09 SC Res 812 (1993) 22.22 SC Res 814 (1993) 22.22, 27.57, 27.72, 27.74, 27.97 SC Res 815 (1993) 26.114 SC Res 816 (1993) 26.118 SC Res 819 (1993) 27.57 SC Res 820 (1993) 26.60, 26.62, 26.76, 26.111, 26.114 SC Res 821 (1993) 8.35, 8.64 SC Res 824 (1993) 27.57 SC Res 827 (1993) 14.19, 14.30, 22.22, 26.64, 31.01, 31.10, 31.14 SC Res 828 (1993) 8.54 SC Res 831 (1993) 14.19, 14.27 SC Res 836 (1993) 26.118, 27.57, 27.74 SC Res 837 (1993) 27.57 SC Res 841 (1993) 6.109, 9.31, 22.20, 26.62, 26.64 SC Res 851 (1993) 22.22 SC Res 864 (1993) 6.109, 9.31, 26.62, 26.64 SC Res 867 (1993) 27.61, 27.97 SC Res 871 (1993) 27.72 SC Res 872 (1993) 27.57 SC Res 873 (1993) 22.20 SC Res 875 (1993) 22.20

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SC Res 876 (1993) 22.22, 27.97 SC Res 883 (1993) 26.64 SC Res 885 (1993) 6.106 SC Res 908 (1994) 26.118 SC Res 912 (1994) 22.22 SC Res 915 (1994) 27.81, 28.35 SC Res 917 (1994) 22.20, 26.64, 26.111, 26.114 SC Res 918 (1994) 6.109, 22.20, 26.62, 26.64, 27.57 SC Res 919 (1994) 6.109, 26.53 SC Res 929 (1994) 9.29, 22.20, 26.97, 26.118 SC Res 935 (1994) 6.106, 22.33 SC Res 940 (1994) 22.20, 26.97, 26.118, 27.97 SC Res 944 (1994) 6.109 SC Res 950 (1994) 22.22 SC Res 955 (1994) 6.116, 16.78, 22.22, 31.25, 31.26, 31.33, 31.34 SC Res 956 (1994) 3.56 SC Res 977 (1995) 31.26 SC Res 978 (1995) 31.34 SC Res 981 (1995) 26.118, 27.34 SC Res 985 (1995) 6.109 SC Res 995 (1994) 26.64 SC Res 998 (1995) 27.57 SC Res 1012 (1995) 6.106, 22.33 SC Res 1013 (1995) 6.106 SC Res 1029 (1995) 14.55 SC Res 1031 (1995) 11.40, 26.118, 27.96, 28.51 SC Res 1035 (1995) 28.51 SC Res 1037 (1996) 27.103, 27.111, 28.15 SC Res 1054 (1996) 26.62, 26.64

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SC Res 1071 (1996) 22.24 SC Res 1074 (1996) 6.109 SC Res 1076 (1996) 22.20, 22.22 SC Res 1080 (1996) 22.20, 26.118 SC Res 1088 (1996) 26.118 SC Res 1101 (1997) 26.119 SC Res 1103 (1997) 28.51 SC Res 1125 (1997) 26.119 SC Res 1127 (1997) 26.64 SC Res 1132 (1997) 6.109, 26.60, 26.64, 26.76, 26.111, 26.115 SC Res 1160 (1998) 6.109, 26.60, 26.62, 26.64 SC Res 1165 (1998) 31.28 SC Res 1166 (1998) 31.04 SC Res 1170 (1998) 6.108 SC Res 1171 (1998) 26.60 SC Res 1173 (1998) 26.64 SC Res 1176 (1998) 26.76 SC Res 1181 (1998) 22.24 SC Res 1193 (1998) 22.20, 22.22 SC Res 1199 (1998) 3.61, 9.31, 22.20 SC Res 1203 (1998) 3.61, 9.31 SC Res 1207 (1998) 31.10 SC Res 1212 (1988) 5.58 SC Res 1214 (1998) 22.20 SC Res 1216 (1998) 26.119 SC Res 1226 (1999) 22.20 SC Res 1227 (1999) 22.20, 26.57 SC Res 1229 (1999) 14.55 SC Res 1231 (1999) 22.22

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SC Res 1234 (1999) 22.20 SC Res 1244 (1999) 3.61, 6.42, 11.25, 12.28, 16.87, 16.104, 27.104, 27.105, 28.39, 28.55, 31.161, 31.165 SC Res 1246 (1999) 20.05 SC Res 1256 (1999) 22.22 SC Res 1261 (1999) 17.33, 22.20, 22.22, 22.24 SC Res 1264 (1999) 22.22, 26.118(p. ci) SC Res 1265 (1999) 22.20, 22.22, 22.30, 27.88 SC Res 1267 (1999) 6.109, 22.37, 26.62, 26.64, 26.76, 26.77 SC Res 1270 (1999) 27.90 SC Res 1272 (1999) 6.42, 11.26, 22.22, 27.72, 27.74, 27.108, 31.173 SC Res 1284 (1999) 6.106, 6.107 SC Res 1286 (2000) 20.05, 22.20 SC Res 1289 (2000) 27.90 SC Res 1291 (2000) 22.22, 27.74, 27.90 SC Res 1295 (2000) 26.57 SC Res 1296 (2000) 15.64, 22.20, 22.22, 22.30, 27.88 SC Res 1297 (2000) 22.20 SC Res 1298 (2000) 6.109, 26.62, 26.64, 26.80 SC Res 1304 (2000) 22.20 SC Res 1306 (2000) 26.64 SC Res 1314 (2000) 22.20, 22.22 SC Res 1315 (2000) 22.22, 31.98, 31.109, 31.110, 31.114, 31.116 SC Res 1318 (2000) 28.59 SC Res 1325 (2000) 22.20, 22.26, 22.28, 25.83 SC Res 1326 (2000) 8.65 SC Res 1327 (2000) 6.96, 28.43 SC Res 1329 (2000) 31.04, 31.19, 31.28 SC Res 1333 (2000) 26.64, 26.80 SC Res 1341 (2001) 22.20

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SC Res 1343 (2001) 6.109, 26.62, 26.64 SC Res 1345 (2001) 22.20 SC Res 1353 (2001) 3.29, 3.30, 3.51 SC Res 1355 (2001) 24.06 SC Res 1358 (2001) 15.45 SC Res 1366 (2001) 15.64, 22.22, 28.06, 28.43, 28.59 SC Res 1367 (2001) 6.109 SC Res 1368 (2001) 12.12 SC Res 1373 (2001) 6.110, 12.04, 12.12, 22.35 SC Res 1376 (2001) 24.06 SC Res 1378 (2001) 22.22 SC Res 1379 (2001) 22.20, 22.22, 22.25 SC Res 1390 (2002) 26.80 SC Res 1408 (2002) 26.62, 26.64 SC Res 1410 (2002) 27.72, 31.177 SC Res 1431 (2002) 31.28 SC Res 1441 (2002) 3.58, 3.62, 26.98 SC Res 1448 (2002) 6.109 SC Res 1456 (2003) 22.35 SC Res 1460 (2003) 22.22 SC Res 1464 (2003) 22.22, 26.118 SC Res 1468 (2003) 22.20, 28.13 SC Res 1478 (2003) 26.62, 26.64 SC Res 1479 (2003) 22.22 SC Res 1481 (2003) 31.04 SC Res 1483 (2003) 6.109, 12.07, 12.33, 20.05, 27.96, 30.35 SC Res 1484 (2003) 22.20, 26.118 SC Res 1493 (2003) 26.62, 27.90 SC Res 1495 (2003) 28.13

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SC Res 1497 (2003) 26.118, 27.73, 31.56 SC Res 1503 (2003) 14.30, 31.05, 31.19, 31.37, 31.40, 31.188 SC Res 1504 (2003) 31.05 SC Res 1505 (2003) 31.05, 31.06 SC Res 1506 (2003) 6.109 SC Res 1509 (2003) 20.22, 27.69, 27.90, 27.97 SC Res 1511 (2003) 20.05 SC Res 1512 (2003) 31.28 SC Res 1518 (2003) 6.109, 22.37 SC Res 1521 (2003) 6.109, 26.64 SC Res 1528 (2004) 16.87, 27.57, 27.90 SC Res 1529 (2004) 9.31, 22.20, 26.118, 27.73 SC Res 1530 (2004) 22.21 SC Res 1533 (2004) 6.109, 22.37 SC Res 1534 (2003) 14.30, 31.19, 31.37, 31.40, 31.188 SC Res 1535 (2004) 6.110 SC Res 1537 (2004) 28.13 SC Res 1538 (2004) 15.11, 28.11 SC Res 1539 (2004) 22.20, 22.22, 22.25 SC Res 1542 (2004) 22.29, 27.90 SC Res 1545 (2004) 16.87, 27.90 SC Res 1546 (2004) 30.35 SC Res 1547 (2004) 22.22 SC Res 1556 (2004) 26.62, 26.64 SC Res 1564 (2004) 22.33, 28.11, 28.42, 31.55 SC Res 1565 (2004) 22.22 SC Res 1566 (2004) 6.107 SC Res 1572 (2004) 6.109, 26.62, 26.113 SC Res 1590 (2005) 19.13, 27.90

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SC Res 1591 (2005) 6.109, 22.37 SC Res 1593 (2005) 12.04, 22.22, 26.64, 31.52, 31.56, 31.87 SC Res 1595 (2005) 31.141 SC Res 1612 (2005) 6.107, 12.07, 22.20, 22.22, 22.25 SC Res 1624 (2005) 22.35 SC Res 1625 (2005) 15.64, 28.16, 28.59 SC Res 1626 (2005) 31.101 SC Res 1631 (2005) 3.51 SC Res 1633 (2005) 22.20 SC Res 1636 (2005) 6.109, 22.37, 31.141 SC Res 1643 (2005) 26.64 SC Res 1644 (2005) 31.141 SC Res 1645 (2005) 5.64, 6.39, 6.72, 6.81, 9.31, 22.17, 27.121, 28.31, 28.32(p. cii) SC Res 1646 (2005) 22.17 SC Res 1653 (2006) 22.31 SC Res 1674 (2006) 17.03, 17.33, 22.20, 22.22, 22.29, 22.30, 22.31, 25.83 SC Res 1686 (2006) 31.141 SC Res 1688 (2006) 31.103 SC Res 1690 (2006) 28.11 SC Res 1691 (2006) 8.54 SC Res 1701 (2006) 22.29, 26.113, 27.90 SC Res 1702 (2006) 9.31 SC Res 1706 (2006) 16.12, 22.31, 27.58 SC Res 1715 (2006) 15.41 SC Res 1718 (2006) 6.109, 12.04, 22.37, 26.62, 26.64, 26.70, 26.113 SC Res 1719 (2006) 28.13, 28.60 SC Res 1730 (2006) 22.37 SC Res 1732 (2006) 6.108 SC Res 1737 (2006) 26.62, 26.64, 26.70, 26.113

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SC Res 1738 (2006) 22.20, 22.22, 22.30 SC Res 1744 (2007) 28.11 SC Res 1748 (2007) 31.141 SC Res 1751 (2006) 27.69 SC Res 1754 (2007) 22.20, 28.14, 28.40 SC Res 1757 (2007) 12.04, 15.39, 16.79, 26.64, 31.140, 31.142, 31.154, 31.158 SC Res 1765 (2007) 20.07 SC Res 1769 (2007) 16.12, 27.58 SC Res 1770 (2007) 9.31 SC Res 1787 (2007) 22.35 SC Res 1789 (2007) 28.13 SC Res 1805 (2008) 22.35 SC Res 1807 (2008) 26.64 SC Res 1809 (2008) 28.56 SC Res 1820 (2008) 22.20, 22.22, 22.28, 25.83 SC Res 1823 (2008) 6.109 SC Res 1827 (2008) 13.30 SC Res 1844 (2008) 26.112 SC Res 1855 (2008) 31.28 SC Res 1856 (2008) 13.19 SC Res 1857 (2008) 22.20 SC Res 1860 (2009) 2.104 SC Res 1876 (2009) 9.31, 22.20 SC Res 1877 (2009) 31.04 SC Res 1878 (2009) 31.28 SC Res 1881 (2009) 19.13 SC Res 1882 (2009) 22.25 SC Res 1886 (2009) 9.31 SC Res 1888 (2009) 22.20, 22.22, 22.27, 22.28

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SC Res 1889 (2009) 9.31, 22.27, 22.28 SC Res 1892 (2009) 9.31 SC Res 1894 (2009) 22.30, 22.31 SC Res 1901 (2009) 31.28 SC Res 1904 (2009) 6.109, 13.20 SC Res 1906 (2009) 13.19 SC Res 1907 (2009) 6.109, 22.37, 26.62, 26.113 SC Res 1908 (2010) 17.33 SC Res 1929 (2010) 12.04, 26.113 SC Res 1931 (2010) 31.19 SC Res 1932 (2010) 31.28 SC Res 1940 (2010) 6.109 SC Res 1944 (2010) 9.31 SC Res 1954 (2010) 31.19 SC Res 1955 (2010) 31.28 SC Res 1956 (2010) 30.34 SC Res 1960 (2010) 22.20, 22.22, 22.28 SC Res 1961 (2010) 9.31 SC Res 1963 (2010) 22.35 SC Res 1964 (2010) 9.31 SC Res 1966 (2010) 6.116, 8.83, 16.78, 31.19, 31.20, 31.21, 31.22, 31.23, 31.40, 31.41, 31.42, 31.43, 31.44, 31.45 SC Res 1970 (2011) 6.109, 9.31, 22.22, 22.31, 22.37, 26.60, 26.64, 28.54, 31.55 SC Res 1973 (2011) 9.31, 12.09, 22.31, 26.111, 26.113, 26.120 SC Res 1975 (2011) 12.07, 22.31 SC Res 1988 (2011) 6.109, 22.37, 26.62, 26.77 SC Res 1989 (2011) 6.109, 22.37, 26.62, 26.77, 26.80 SC Res 1993 (2011) 31.19 SC Res 1995 (2011) 31.28 SC Res 1998 (2011) 22.25

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SC Res 1999 (2011) 6.101, 8.54 SC Res 2001 (2011) 9.31 SC Res 2003 (2011) 26.62 SC Res 2008 (2011) 9.31 SC Res 2009 (2011) 9.31 SC Res 2014 (2011) 9.31 SC Res 2023 (2011) 26.62 SC Res 2031 (2011) 9.31 SC Res 2033 (2012) 28.56 SC Res 2038 (2012) 31.22 SC Res 2041 (2012) 28.13 SC Res 2043 (2012) 28.14 SC Res 2048 (2012) 6.109, 22.37, 26.60 SC Res 2053 (2012) 19.13, 28.13 SC Res 2061 (2012) 28.13 SC Res 2062 (2012) 28.13 SC Res 2065 (2012) 28.13 SC Res 2068 (2012) 22.25 SC Res 2083 (2012) 13.20 SC Res 2088 (2013) 28.13 SC Res 2090 (2013) 28.13 SC Res 2098 (2013) 28.13 SC Res 2103 (2012) 28.13 SC Res 2106 (2012) 12.07, 22.28(p. ciii) SC Res 2112 (2013) 28.13 SC Res 2122 (2013) 17.03, 22.20, 22.27, 22.28 SC Res 2127 (2013) 6.109, 22.33, 22.37, 26.62, 26.64, 26.113 SC Res 2137 (2014) 20.09 SC Res 2139 (2014) 9.31, 22.22

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SC Res 2140 (2014) 6.109, 22.22, 22.37, 26.62, 26.64, 26.80 SC Res 2155 (2014) 22.20, 22.22, 22.29 SC Res 2165 (2014) 9.31 SC Res 2170 (2014) 22.20 SC Res 2171 (2014) 15.64, 22.31, 28.25, 28.59 SC Res 2174 (2014) 22.20, 22.22 SC Res 2177 (2014) 17.32, 17.33 SC Res 2194 (2014) 31.40 SC Res 2196 (2015) 22.31 SC Res 2206 (2015) 6.109, 22.20, 22.22, 22.37, 26.59, 26.64, 26.80 SC Res 2216 (2015) 22.22, 26.64, 26.113 SC Res 2222 (2015) 22.20, 22.22 SC Res 2225 (2015) 17.32, 17.33, 22.20, 22.22, 22.25 SC Res 2286 (2016) 6.109 SC Res 2231 (2015) 6.109 SC Res 2235 (2015) 22.22, 26.80 SC Res 2240 (2015) 9.31, 22.20 SC Res 2242 (2015) 17.32, 17.33, 22.20 SC Res 2243 (2015) 17.32, 17.33 SC Res 2248 (2015) 22.22 SC Res 2249 (2015) 22.20 SC Res 2250 (2015) 17.03, 17.33 SC Res 2253 (2015) 22.37, 26.62, 26.80 SC Res 2254 (2015) 9.31, 22.20, 22.22 SC Res 2256 (2015) 31.24, 31.46 SC Res 2258 (2015) 22.22 SC Res 2262 (2016) 22.31, 26.64 SC Res 2269 (2016) 31.43 SC Res 2268 (2016) 22.22

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SC Res 2269 (2016) 31.21 SC Res 2271 (2016) 26.64 SC Res 2274 (2016) 17.32 SC Res 2280 (2016) 26.64, 26.80 SC Res 2282 (2016) 17.03, 17.32, 17.33, 28.32 SC Res 2286 (2016) 17.33 SC Res 2290 (2016) 26.64, 26.80 SC Res 2293 (2016) 26.64 SC Res 2301 (2016) 22.31 SC Res 2303 (2016) 22.20, 22.22 SC Res 2304 (2016) 22.31, 27.59 SC Res 2308 (2016) 14.55 SC Res 2313 (2016) 17.03 SC Res 2320 (2016) 28.56 SC Res 2332 (2016) 9.31 SC Res 2334 (2016) 9.31 SC Res 2339 (2017) 26.64, 26.113 Security Council Provisional Rules of Procedure (SC Rule) 3.14, 3.15, 10.51, 10.56, 15.50 Ch III 8.72 SC Rule 1 3.15, 3.65 SC Rule 2 3.15 SC Rule 3 3.15 SC Rule 4 3.17 SC Rule 5 3.16 SC Rule 7 3.65 SC Rules 13–15 15.63 SC Rules 13–17 8.72 SC Rule 13 8.72 SC Rule 15 8.72

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SC Rule 18 3.64 SC Rule 19 3.64, 3.67 SC Rule 20 3.64 SC Rules 21–26 15.46 SC Rule 22 15.50 SC Rule 23 15.50 SC Rule 24 15.50 SC Rule 25 15.50 SC Rule 26 15.50 SC Rule 27 3.65, 8.72 SC Rule 28 15.50 SC Rule 29 3.65 SC Rule 30 3.65, 10.38 SC Rule 36 3.65 SC Rule 37 3.43, 3.46, 3.49, 3.50 SC Rule 38 3.44 SC Rule 39 3.46, 3.47, 3.50, 5.57, 8.81, 28.35 SC Rule 48 3.21, 3.28, 3.29 SC Rule 51 3.28 SC Rule 52 3.65 SC Rule 53 3.65 SC Rule 55 3.28, 15.41 SC Rule 58 8.07, 8.19 SC Rule 59 8.08 SC Rule 60 8.08 SC Rule 61 2.45

Staff Rules Staff Rules and Regulations of the United Nations 15.04, 15.13 Annex I 14.43

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Annex I, para 6 15.29 r 1.1 15.30 r 1.2(s) 15.31 r 1.2(1) 15.31 r 3.6 15.29 r 3.7 15.29 r 3.8 15.29 r 3.9 15.29(p. civ) r 3.10 15.29 r 3.11 15.29 r 3.12 15.29 r 3.13 15.29 r 3.14 15.29 r 10.1(a) 15.31 r 10.1(c) 15.31 r 10.2 15.34 r 10.2(a) 15.31 r 10.2(b) 15.31 r 10.3(a) 15.30 r 10.3(c) 15.31 r 10.4 15.31 r 11.1 15.32, 15.33 r 11.1(d) 15.33 r 11.2 15.32, 15.34 r 11.4(b) 15.34 r 11.4(c) 15.33 reg 1.1(b) 15.30 reg 1.2(a)–(b) 15.30 reg 1.2(c) 15.26, 15.35

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reg 1.2(c)–(i) 15.30 reg 1.2(e)–(j) 15.30 reg 1.2(h) 15.31 reg 1.2(j)–(k) 15.31 reg 1.2(m) 15.31 reg 1.2(n) 15.31 reg 1.2(o)–(p) 15.31 reg 1.3(b) 15.28 reg 3.1 15.29 reg 3.3 14.43 reg 4.1 15.20 reg 4.2 15.20, 15.21 reg 4.3 15.21 reg 4.4 15.20 reg 4.5(a) 15.27 reg 8.1(b) 15.37 reg 8.2 15.37 reg 12.1 15.13 reg 12.2 15.13, 15.56 reg 12.3 15.13 reg 12.4 15.13

Trusteeship Council Rules of Procedure of the Trusteeship Council, UN Doc T/1/Rev.7, 1995 4.08 TC Rule 1 Rev. 6 4.08 TC Rule 2 Rev. 6 4.08 TC Rule 3 Rev. 6 4.08 TC Rules 11–18 8.72 TC Rule 13 7.50 TC Rules 21–25 15.49

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TC Rule 34 4.09 TC Rule 35 4.09 TC Rule 66 6.15

UN Compensation Commission Provisional Rules for Claims Procedure Art 4(1) 30.26 Art 4(2) 30.26 Art 6(2) 30.25 Art 6(3) 30.25 Art 6(4) 30.25 Art 6(5) 30.25 Art 7(1) 30.25 Art 7(2) 30.25 Art 10 30.26 Art 11 30.26 Art 12 30.26 Art 13 30.26 Art 14 30.26 Art 15 30.26 Art 16 30.27, 30.32 Art 16(1) 30.27 Art 16(2) 30.27 Art 18(1) 30.10 Art 18(2) 30.10 Art 19(1) 30.10 Art 20(1) 30.10 Art 20(2) 30.10 Art 20(3) 30.10 Art 21(1) 30.10

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Art 22 30.10 Art 28 30.11 Art 31 30.11 Art 32 30.27 Art 33(1) 30.27 Art 33(2) 30.27 Art 34 30.27 Art 34(3) 30.27 Art 36 30.30 Art 37(a) 30.29 Art 37(b) 30.29 Art 37(d) 30.29 Art 37(e) 30.29 Art 38(a) 30.30 Art 38(b) 30.30 Art 38(c) 30.30 Art 38(e) 30.30 Art 39 30.29, 30.30 Art 40(1) 30.31 Art 40(2) 30.31 Art 40(3) 30.31 Art 40(4) 30.31 Art 43 30.30

UN Conference on Trade and Development (UNCTAD) UNCTAD Res 36 (II) (1968) 8.35

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List of Abbreviations Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

AALCO Asian-African Legal Consultative Organization ACABQ Advisory Committee on Administrative and Budgetary Questions ACC Administrative Committee on Coordination ACT Accountability, Coherence and Transparency Group ADC-ICTY Association of Defence Counsel practising before the ICTY AFDI Annuaire français de droit international Af HRLJ African Human Rights Law Journal AFRC Armed Forces Revolutionary Council AJIL

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American Journal of International Law American University JILP American University Journal of International Law and Policy Ann de l’Inst Annuaire de l’Institut de droit international ARSIWA Draft Articles on Responsibility of States for Internationally Wrongful Acts Art Article Arts Articles ASEAN Association of Southeast Asian Nations ASG Assistant-Secretary-General of the UN ASIL American Society of International Law ASP Assembly of State Parties AU African Union Aust YBIL Australian Yearbook of International Law AVL Audiovisual Library of International Law BAC ICJ Budgetary and Administrative Committee BiH Bosnia and Herzegovina BINUB UN Integrated Office in Burundi BSEC Organization of the Black Sea Economic Cooperation

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BYIL British Yearbook of International Law CAHDI European Committee on Legal Cooperation and the Committee of Legal Advisers on Public International Law Cambridge JICL Cambridge Journal of International Criminal Law CANZ Canada, Australia, and New Zealand CAR Central African Republic CARU Administrative Commission of the River Uruguay CAT Convention Against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment of 17 December 1984 CBPF Country-based pooled funds (p. cvi) CCPCJ Commission of Crime Prevention and Criminal Justice CDF Civil Defence Forces CDP Committee for Development Policy CEB Chief Executives Board CEDAW Convention on the Elimination of All Forms of Discrimination Against Women of 17 December 1979 CERD International Convention on the Elimination of Racial Discrimination CERF Central Emergency Response Fund CESCR

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Committee on Economic, Social and Cultural Rights ch chapter CJEU Court of Justice of the European Union CLJ Cambridge Law Journal COE Council of Europe Col LR Columbia Law Review Cornell ILJ Cornell International Law Journal CPC Committee for Programme and Coordination CPD Commission on Population and Development CPED International Convention for the Protection of All Persons from Enforced Disappearance CRC Convention on the Rights of the Child of 20 December 1989 Crim LF Criminal Law Forum CRPD Committee on the Rights of Persons with Disabilities CSCE Commission on Security and Cooperation in Europe CSD United Nations Commission on Sustainable Development CSW Commission on the Status of Women CYIL

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Canadian Yearbook of International Law DARIO Draft Articles on the Responsibility of International Organizations DAW Division for the Advancement of Women DESA Department of Economic and Social Affairs DFS Department of Field Support DGACM Department for General Assembly and Conference Management DOALOS Division for Ocean Affairs and the Law of the Sea DPA Department of Political Affairs DPADM DESA Division for Public Administration and Development Management DPKO Department of Peacekeeping Operations DRC Democratic Republic of the Congo DSB Dispute Settlement Body DSD DESA Division for Sustainable Development DSPD DESA Division for Social Policy and Development DSS Department of Safety and Security Duke UP Duke University Press EAB ECOSOC Affairs Branch

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EC European Community ECA Economic Commission for Africa ECAFE Economic Commission for Asia and the Far East ECCC Extraordinary Chambers in the Courts of Cambodia (p. cvii) ECE Economic Commission for Europe ECESA Executive Committee on Economic and Social Affairs ECHR Convention for the Protection of Human Rights and Fundamental Freedoms ECJ European Court of Justice ECLAC Economic Commission for Latin America and the Caribbean ECOSOC United Nations Economic and Social Council ECOWAS Economic Community of West African States ECtHR European Court of Human Rights EEC European Economic Community EGC General Court of the European Union EHRLR European Human Rights Law Review EJIL European Journal of International Law ESCAP

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Economic and Social Commission for Asia and the Pacific ESCWA Economic and Social Commission for Western Asia ESF New Environmental and Social Framework: Protecting the Poor and the Environment in Investment Projects Essex HR Rev Essex Human Rights Review EU European Union EULEX European Union Rule of Law Mission in Kosovo EVU Economic Vulnerability Index EXCOM Executive Committee FAO Food and Agriculture Organization of the United Nations FARDC Forces armées de la République démocratique du Congo FDN Fonds de Défense Nationale Fifth Committee Administrative and Budgetary Committee of the General Assembly Financial Regulations and Rules Financial Regulations and Rules of the United Nations, adopted in 2013 (UN Doc ST/ SGB/2013/4, 1 July 2013) FMLN Frente Farabundo Martí para la Liberación Nacional Fordham ILJ Fordham International Law Journal G-77 Group of 77 developing states and China in the UN

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GA Res General Assembly Resolution GAOR United Nations General Assembly Official Records GATT General Agreement on Tariffs and Trade GEF Global Environment Fund GEF Global Environment Facility Germ YBIL German Yearbook of International Law GLJ German Law Journal GRULAC Latin American and Caribbean Group HABITAT I First United Nations Conference on Human Settlements HABITAT II Second United Nations Conference on Human Settlements HAI Human Assets Index Harv HRJ Harvard Human Rights Journal Harv ILJ Harvard International Law Journal (p. cviii) HLCM High-Level Committee on Management HLCP High-Level Committee on Programmes HLPF High-Level Political Forum on Sustainable Development HLPFSD

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ECOSOC’s High-Level Political Forum on Sustainable Development HRAP Human Rights Advisory Panel HRC Human Rights Council HRLJ Human Rights Law Journal HRLR Human Rights Law Review HRQ Human Rights Quarterly HRWG UN Development Group Human Rights Working Group HURIST Human Rights Strengthening Programme IACommHR Inter-American Commission on Human Rights IACtHR Inter-American Court of Human Rights IAEA International Atomic Energy Agency IAMB International Advisory and Monitoring Board IASC Inter-Agency Standing Committee IASG Inter-Agency Support Group on Indigenous Issues IBRD International Bank for Reconstruction and Development ICAO International Civil Aviation Organization ICC International Criminal Court

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ICCPR International Covenant on Civil and Political Rights of 16 December 1966 and the protocols thereto ICERD International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 ICESCR International Covenant on Economic, Social, and Cultural Rights ICJ International Court of Justice ICJ Rep International Court of Justice Reports ICLQ International and Comparative Law Quarterly ICMW International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families ICRC International Committee of the Red Cross ICSC International Civil Service Commission ICSID International Centre for Settlement of Investment Disputes ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia ICVA International Council of Voluntary Agencies IDA The International Development Association IDRL International Disaster Response Laws, Rules and Principles IELR

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International Environmental Law Reports IFAD International Fund for Agricultural Development IFC International Finance Corporation IFOR Implementation Force IFRC International Federation of Red Cross and Red Crescent Societies IHL international humanitarian law IIC Independent Inquiry Committee IJRL International Journal of Refugee Law ILC International Law Commission (p. cix) ILM International Legal Materials ILO International Labour Organization ILOAT Administrative Tribunal of the ILO ILR International Law Reports IMCO Inter-Governmental Maritime Consultative Organization IMF International Monetary Fund IMO International Maritime Organization INSARAG International Search and Rescue Advisory Group

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Int Affairs International Affairs Int Org L Rev International Organizations Law Review INTERPOL International Criminal Police Organization IOM International Organization for Migration IRM International Residual Mechanism for International Tribunals IRO International Refugee Organization IRRC International Review of the Red Cross IRU International Relief Union ISA International Seabed Authority IT Information Technology ITA International Territorial Administration Ital YIL Italian Yearbook of International Law ITC International Tin Council ITLOS International Tribunal for the Law of the Sea ITU International Telecommunications Union JCSL Journal of Conflict and Security Law JICJ

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Journal of International Criminal Justice JIEL Journal of International Economic Law JIL Journal of International Law JIU United Nations Joint Inspection Unit JNC Joint Negotiation Committee at Headquarters JPIO Johannesburg Plan of Implementation JRS Journal of Refugee Studies KFOR International Security Force in Kosovo LDC-II Second UN Conference on the Least Developed Countries LDC-III Third UN Conference on the Least Developed Countries LDC-IV Fourth UN Conference on the Least Developed Countries LDCs Least Developed Countries LJIL Leiden Journal of International Law LLDCs Landlocked Developing Countries LOIPR List of issues prior to reporting LPICT The Law and Practice of International Courts and Tribunals LQR Law Quarterly Review

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MDGs Millennium Development Goals Mich JIL Michigan Journal of International Law MICT United Nations Mechanism for International Criminal Tribunals (p. cx) MINUGUA United Nations Verification Mission in Guatemala MINURSO UN Mission for the Referendum in Western Sahara MINUSCA United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic MINUSTAH UN Stabilization Mission in Haiti MIPONUH United Nations Civilian Police Mission in Haiti MIT Press Massachusetts Institute of Technology Press MLR Modern Law Review MONUC United Nations Mission in the Democratic Republic of the Congo MONUSCO United Nations Organization Stabilization Mission in the Democratic Republic of the Congo MPEPIL Max Planck Encyclopedia of Public International Law MPUNYB Max Planck Yearbook of United Nations Law NATO North Atlantic Treaty Organization NCRE National Competitive Recruitment Examination

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Neth IL Rev Netherlands International Law Review NFI non-food item NGO non-governmental organization NIEO New International Economic Order Nordics Denmark, Finland, Iceland, Norway, and Sweden NQHR Netherlands Quarterly of Human Rights Nw JIHR Northwestern Journal of International Human Rights NYU JILP New York University Journal of International Law and Politics NYU Law Rev New York University Law Review OAS Organization of American States OAU Organization of African Unity OCHA Office for the Coordination of Humanitarian Affairs OECD Organization for Economic Cooperation and Development OESC Office for ECOSOC Support and Coordination OHCHR Office of the United Nations High Commissioner for Human Rights OHR Office of the High Representative for Bosnia and Herzogovina OHRLLS

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Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and the Small Island Developing States OIC Organization of the Islamic Conference OIOS Office of Internal Oversight Services OJLS Oxford Journal of Legal Studies OLA Office of Legal Affairs OLSA Office of Staff Legal Assistance ONUC UN Operations in the Congo OP1-ICCPR First Optional Protocol to the International Covenant on Civil and Political Rights OP3-CRC Third Optional Protocol to the Convention on the Rights of the Child OP-CAT Optional Protocol to the Convention Against Torture OPCD Office of Public Counsel for the Defence OP-CEDAW Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (p. cxi) OP-CRPD Optional Protocol to the Convention on the Rights of Persons with Disabilities OPCV Office of Public Counsel for Victims OPCW Organization for the Prohibition of Chemical Weapons OP-ICERD Optional Protocol to the International Covenant on the Elimination of Racial Discrimination

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OP-ICESCR Optional Protocol to the International Covenant on Economic, Social and Cultural Rights OSAA Office of the Special Adviser on Africa OSAGI Office of the Special Adviser on Gender Issues andAdvancement of Women OSAIL Oxford Scholarly Authorities on International Law OSCE Organization for Security and Cooperation in Europe OSRSG for Children and Armed Conflict Office of the Special Representative of the Secretary-General for Children and Armed Conflict OSRSG on Sexual Violence in Conflict Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict OTP Office of the Prosecutor OUP Oxford University Press ÖZöR Österreichische Zeitschrift für öffentliches Recht P5 Permanent 5 PAHO Pan American Health Organization para paragraph paras paragraphs PBC Peacebuilding Commission PBF

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UN Peacebuilding Fund PBI Programme Budge Implication PBSO UN Peacebuilding Support Office PCA Permanent Court of Arbitration PCIJ Permanent Court of International Justice PLO Palestine Liberation Organization R2P Responsibility to Protect RCADI Recueil des Cours de l’Academie de Droit International RDI Revue de droit international Reg Regulation Regulations and Rules Governing Programme Planning Regulations and Rules Governing Programme Planning, the Programme Aspects of the Budget, the Monitoring of Implementation and the Methods of Evaluation, adopted in 2016 (UN Doc ST/SGB/2016/6, 2 May 2016) Relationship Agreement Negotiated Relationship Agreement between the International Criminal Court and the United Nations Res Resolution RG Revue générale de droit international public RPE Rules of Procedure and Evidence RPE STL Rules of Procedure and Evidence, Special Tribunal for Lebanon

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RPF Rwandan Patriotic Front (p. cxii) RQDI Quebec Journal of International Law RSCSL Residual Special Court for Sierra Leone RSQ Refugee Survey Quarterly RTLM Radio Télévision Libre des Mille Collines RUF Revolutionary United Front SADC Southern African Development Community SC United Nations Security Council SCOR Security Council Official Records SC Res Security Council Resolution SCSL Special Court for Sierra Leone SCU Serious Crimes Unit of East Timor SDGs Sustainable Development Goals SIPRI Stockholm International Peace Research Institute SLA Sierra Leone Army SMCC Staff-Management Coordination Committee SMG

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Senior Management Group SOFA Status of Forces Agreement SOMA Status of Mission Agreement SPT Subcommittee on Prevention of Torture SRSG Special Representative of the Secretary-General Stanford JIL Stanford Journal of International Law STL Special Tribunal for Lebanon Substantial New Programme of Action for the 1980s for the LDCs First UN Conference on the Least Developed Countries Supp Supplement TCC troop-contributing country TEU Treaty Establishing the European Union TFEU Treaty on the Functioning of the European Union TLA Fund UN General Trust Fund Account TRC Truth and Reconciliation Commission of Sierra Leone UDHR Universal Declaration of Human Rights UK United Kingdom UN United Nations

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UN Women United Nations Entity for Gender Equality and the Empowerment of Women UNAMA UN Assistance Mission in Afghanistan UNAMET United Nations Mission in East Timor UNAMI United Nations Assistance Mission for Iraq UNAMID United Nations Mission in Darfur UNAMIR UN Assistance Mission for Rwanda UNAMSIL United Nations Assistance Mission in Sierra Leone UNAT UN Administrative Tribunal UNAT 2 UN Appeals Tribunal UNAVEM United Nations Angola Verification Mission II (p. cxiii) UNCC United Nations Compensation Commission UNCDF UN Capital Development Fund UNCED United Nations Conference on Environment and Development UNCIO United Nations Conference on International Organization UNCITRAL UN Commission on International Trade Law UNCLOS United Nations Convention on the Law of the Sea UNCTAD

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United Nations Conference on Trade and Development UNDAC United Nations Disaster Assessment and Coordination UNDEF UN Democracy Fund UNDG United Nations Development Group UNDOF UN Disengagement Observer Force UNDP United Nations Development Programme UNDPA Department of Political Affairs UNDRO Office of the United Nations Disaster Relief Organization UNDT UN Dispute Tribunal UNEF UN Emergency Force UNEF I First UN Emergency Force in the Middle East UNEF II Second UN Emergency Force in the Middle East UNEP United Nations Environment Programme UNESCO United Nations Educational, Scientific and Cultural Organization UNF UN Foundation UNFCCC UN Framework Convention on Climate Change UNFICYP UN Peacekeeping Force in Cyprus

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UNFIP UN Fund for International Partnerships UNFPA United Nations Population Fund UN-HABITAT United Nations Human Settlements Programme UN Handbook United Nations Office of Legal Affairs Handbook on the Peaceful Settlement of Disputes between States (1992) UNHCR United Nations High Commissioner for Refugees UNHHSF United Nations Habitat and Human Settlements Foundation UNHQ UN Headquarters UNICEF United Nations Children’s Fund UNICRI United Nations Interregional Crime and Justice Research Institute UNIDIR UN Institute for Disarmament Research UNIDO UN Industrial Development Organization UNIFEM United Nations Development Fund for Women UNIFIL UN Interim Force in Lebanon UNIMOG UN Iran-Iraq Military Observer Group UN-INSTRAW UN International Research and Training Institute for the Advancement of Women UNIOGBIS UN Integrated Peacebuilding Office in Guinea-Bissau

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UNIOSIL United Nations Integrated Office in Sierra Leone UNISERV UN International Civil Servants Federation UNISFA United Nations Interim Security Force for Abyei UNITAR United Nations Institute for Training and Research UNJSPF UN Joint Staff Pension Fund UN Juridical YB UN Juridical Year Book UNMEE UN Mission in Ethiopia and Eritrea (p. cxiv) UNMIK United Nations Mission in Kosovo UNMIL United Nations Mission in Liberia UNMIS United Nations Mission in Sudan UNMISET United Nations Mission of Support in East Timor UNMO UN Military Observers UNMOGIP UN Military Observer Group in India and Pakistan UNOCA UN Office for Central Africa UNOCC UN Operations and Crisis Centre UNOCHA United Nations Office for the Coordination of Humanitarian Affairs UNODA

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UN Office of Disarmament Affairs UNODC United Nations Office on Drugs and Crimes UNOPS United Nations Office for Project Services UNOSOM UN Operation in Somalia UNOSOM II Second UN Operation in Somalia UNOWAS UN Office for West Africa UNPOS UN Political Office for Somalia UNPREDEP UN Preventative Deployment Force UNPROFOR UN Protection Force UNRCCA UN Regional Centre for Preventative Diplomacy in Central Asia UNREF United Nations Refugee Fund Executive UNRISD United Nations Research Institute for Social Development UN RP Repertory of Practice of United Nations Organs UNRRA United Nations Relief and Rehabilitation Administration UNRWA UN Relief and Works Agency for Palestine Refugees in the Near East UNSC United Nations Security Council UNSC RP Repertoire of the Practice of the Security Council

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UNSDRI United Nations Social Defence Research Institute UNSMIL UN Support Mission in Libya UNSOG UN Aouzou Strip Observer Group UNSOM UN Assistance Mission in Somalia UNTA United Nations Transitional Administration UNTAC United Nations Transitional Authority in Cambodia UNTAES United Nations Transitional Administration in Eastern Slavonia, Baranjaand Western Sirmium UNTAET United Nations Transitional Administration in East Timor UNTAG United Nations Transition Assistance Group UNTEA/UNSF UN Temporary Executive Authority/UN Security Force in West NewGuinea UNTS United Nations Treaty Series UNU United Nations University UNU Press United Nations University Press UNYB United Nations Year Book UPR Universal Periodic Review UPU Universal Postal Union

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US United States of America USD United States Dollar USG Under-Secretary-General of the UN (p. cxv) Van JTL Vanderbilt Journal of Transnational Law VCLT Vienna Convention on the Law of Treaties Virginia JIL Virginia Journal of International Law WEOG Western European and Others Group WFP United Nations World Food Programme WHO World Health Organization WIPO World International Property Organization WMO World Meteorological Organization WSIS World Summit on the Information Society WTO World Trade Organization Yale HRDLJ Yale Human Rights and Development Law Journal YBILC Yearbook of the International Law Commission Ybk IEL Yearbook of International Environmental Law Ybk IHL

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Yearbook of International Humanitarian Law YIL Yearbook of International Law YPP Young Professionals Programme ZöV Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (p. cxvi)

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Part 1 Introduction Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): UN Charter

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(p. 3) 1  Introduction 1.  The purposes of the volume 1.01 2.  The methods employed and typologies selected 1.06 3.  The League of Nations 1.09 4.  The Charter of the United Nations 1.19 5.  Structure of the volume 1.27

1.  The purposes of the volume 1.01  Those few specialized agencies existing in 1958 (and above all the International Labour Organization) were the subject of an Appendix to the 8th edition of Oppenheim’s International Law: Peace. The United Nations (UN), itself barely 12 years old, was not within the view of the then editor, Sir Hersch Lauterpacht. 1.02  There exist very important writings on the common relevant facets of international organizations (for example, Schermers and Blokker, International Institutional Law: Unity within Diversity; Klabbers, An Introduction to International Organizations Law) and on the terms and meaning of the provisions of the UN Charter (for example, Simma et al (eds), The Charter of the United Nations: A Commentary; Cot, Pellet, and Forteau, La Charte des Nations Unies, Commentaire article par article). 1.03  The purpose of this volume is to provide a comprehensive study of the legal practice of the UN. It is rooted in the realities, and is a study of an organization that reveals great imagination and profound shortcomings, a commitment to the values of the Charter, and an ignoring, for political reasons, of fundamental principles. It is thus a study of UN legal practice, ‘warts and all’. 1.04  Its further purpose is to provide assistance and guidance to those whose work requires them to understand the complex structures of the UN, the multitudinous legal issues that daily arise, and the practice to date regarding them. 1.05  This work is aimed at Missions to the United Nations, Ministries of Foreign Affairs, academics, and students. It follows the tradition of ‘Oppenheim writings’, in that it is a book above all for practitioners. Information is offered in a relatively succinct (p. 4) text, personal opinion is largely eschewed, and a wealth of detail and ideas to be explored is deployed in copious footnotes.

2.  The methods employed and typologies selected 1.06  In order to provide an overview of the hugely expanded UN and the legal issues that arise in the day-to-day work of this organization, this study addresses both its formal structures, as they have developed over the years, and all that the UN attempts to achieve in terms of its work. This dual function inevitably reveals a vast legal practice. Some of this legal practice is internal to the UN—voting, membership, financing, and so forth. United Nations’ practice has also concerned itself with legal issues more generally. Immunities from national jurisdiction and execution, human rights, judicial matters (both civil and criminal), and responsibility under international law for the actions of the UN, are all among the themes here examined.

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1.07  The formal structures of each of the principal organs of the UN are analysed, as well as the myriad legal problems that have arisen. Each of the chapter headings is selfexplanatory. 1.08  The chapter on the International Court of Justice (ICJ) is different from what might be expected on this topic. There are some exceptional works on the ICJ (eg, the writings of Shabtai Rosenne, including his magisterial The Law and Practice of the International Court 1920–2005, a new 2016 edition of which has been prepared by Malcolm Shaw; Zimmermann et al (eds), The Statute of the International Court of Justice: A Commentary; Kolb, The International Court of Justice; Thirlway, The International Court of Justice), and countless articles on different aspects of its work and its case law. This chapter, wishing not to attempt to replicate what exists but rather to underline the coherence of this book as a work on UN Law, emphasizes the role of the ICJ as an integral part of the UN. In so doing, it addresses many topics that are not generally visible but concern the place of the ICJ within the UN family.

3.  The League of Nations 1.09  The establishment of the UN marked the second attempt to create an international organization out of the destruction of a World War.1 Its creation began as the end of the Second World War came into view, with much initially decentralized intellectual (p. 5) and political effort being poured into the various fora at which such ideas were being gathered. 1.10  Before the League of Nations, the most significant international structure had been the Congress System, in which occasional summit meetings were held by the European Great Powers. At the end of the Great War, brought to a close by the much criticized Treaty of Versailles, US President Wilson pressed for a more global organization, which would be open to all independent states, with each of them having—at least in its Assembly—a vote. The intention was to put the idea of national self-determination at the heart of this body, favouring the idea of independent states over that of historical empires. And competing military alliances would be replaced by a system of collective security. 1.11  The US did not, in the event, ratify the Covenant of the new League of Nations, which President Wilson had done so much to shape, nor were Germany and Russia members. Nevertheless, it did have certain achievements to its name (including the efficacious handling of certain disputes and the establishment of the Mandates system). The seeds of the concept of an independent secretariat were also sown under the League. 1.12  However, in the 1930s, the concept of collective security began to unravel in the face of Japanese aggression in Manchuria and Italian aggression in Abyssinia, where the membership of the League was politically unable to determine certain actions as aggression, to bring sanctions to bear, or otherwise to provide the collective security promised by the Covenant. 1.13  As events inexorably led on to the Second World War, the League continued in existence, though as an inoperative shadow. 1.14  The interrelationship between the ending of the League of Nations (and the Permanent Court of International Justice (PCIJ), not an integral part) and the beginning of the new UN (and the ICJ, which is an integral part) was both complex and somewhat untidy.2 The UN Charter entered into force on 24 October 1945. The League of Nations was not formally dissolved until 18 April 1946, as was the PCIJ. 1.15  The Preparatory Commission of the United Nations (whose members had not all been members of the League of Nations) agreed, in a Resolution of 18 December 1945, to the dissolution of the PCIJ and asked the still existing League to take steps to that end. On the

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final day of its existence, the Assembly of the League of Nations resolved that the PCIJ was to be regarded as dissolved as from the following day.3 (p. 6) 1.16  While the UN is an organization undeniably legally distinct from the League of Nations, the ICJ is the legal successor to the PCIJ. The importance of that decision has meant (apart from convenience in the transfer from one to the other of property rights) that the case law of the PCIJ is relevant, and in principle guiding, for the ICJ. 1.17  At the same time, although there is much that is similar, indeed identical, in the Statutes of the two Courts, there is sufficient that is distinct for it to be clear that the ICJ is indeed a new court, and not merely a continuation of the PCIJ. 1.18  This study is a guide for practitioners in the handling of legal issues—internal and external—in the UN. It focuses on what was intended in 1946, and what has developed, sometimes totally unforeseen, since then. But a small sense of the building of the UN out of the ashes of the League of Nations can only enhance our contemporary understanding.

4.  The Charter of the United Nations 1.19  It was clear to all concerned that, although formally the League of Nations continued until 1946, it was in effect dead. It would not be revived. And even before the end of the Second World War, there were meetings to discuss the future being held by a variety of interested parties (states, committees, expert bodies, individuals4) in a variety of fora (Dumbarton Oaks Conference of 1944; diplomatic exchanges between Washington, London, and Moscow; the Yalta Conference of 1945; the San Francisco Conference that commenced on 25 April 1945 and culminated in the signing of the Charter on 26 June 1945).5 1.20  The remarkable expansion of the UN, in terms of its membership, its structures, and its activities, has occurred in major ways. First, the terms of the UN Charter (and what innovations they may or may not bear, or answers to new problems they may or may not suggest) have required almost daily interpretation—by member states of the UN, by the organs in which they participate, and by the Legal Counsel of the UN. And throughout there has been the tension between those who have insisted that interpretation should be textual, and that the Charter was to be interpreted by reference to strict construction; and those who preferred a teleological approach to Charter interpretation, whereby in uncertain cases the purposes and principles of the UN should be a guide, and against that test what was not forbidden in the existing text could be permitted.6 (p. 7) 1.21  A second way in which changes have been able to be realized, to meet changing realities, has been through Charter amendment. Amendments to the Charter were envisaged in the terms of the Charter itself, though the bar to such changes has been placed high. Article 108 provides that amendments shall come into force for all Members of the UN when they have been adopted by a vote of two-thirds of the Members of the General Assembly and ratified, in accordance with their respective constitutions, by two-thirds of Members of the UN, including all the permanent members of the Security Council. 1.22  Amendments of Articles 23, 27, and 61 were adopted by the General Assembly on 17 December 1963 and came into force on 31 August 1965.7 1.23  An amendment to Article 109 of the UN Charter was adopted by the General Assembly on 20 December 1965 and came into force on 12 June 1968.8 No action has been taken under this provision. 1.24  While amendments to the Charter are very rare indeed, more general concern about institutional reform of the UN has been an important—if not yet successful—agenda item in

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recent years.9 However, there have been deep divisions as to what reform would be desirable. 1.25  Finally, in an exercise of lawmaking, not confined to what is in the Charter, a substantial number of conventions have been adopted under the auspices of the UN, (p. 8) each directed to addressing new problems, not envisaged in the provisions of the Charter, that have arisen.10 1.26  In nearly all of these developments (which the reader will find traced and explained in these pages), difficult questions frequently arise as to the balance between Charter legality and necessary change and development.11 This study endeavours to present the arguments and indicate the trends.

5.  Structure of the volume 1.27  The initial structure of the UN was set out in its Charter, which, whilst ambitious, was easy to comprehend and seemingly manageable. 1.28  Certain seeds for expansion were built into the Charter itself, above all in the entitlement of certain organs to create subsidiary organs and bodies. The UN was in fact expanded—indeed exploded—beyond all recognition. 1.29  The contrast between what was provided for in 1945 and the UN as it is today is well evidenced by contrasting the original organizational chart12 with the latest organigramme,13 which sets out the vast and loose edifice that is the UN in the early twenty-first century. 1.30  Today the UN consists not simply of the six principal organs whose powers and functions are enunciated in the Charter, but of many new bodies dealing with economic wellbeing (eg, the United Nations Conference on Trade and Development (UNCTAD), the United Nations Industrial Development Organization (UNIDO), field operations of various sorts, UN funds and programmes), with human rights (eg, the High Commissioner for Human Rights and the UN Centre for Human Rights, structures for disaster relief, the Human Rights Council), with dispute settlement (experts, fact-finding commissions, special representatives), and with judicial functions more generally (eg, the United Nations Compensation Commission (UNCC), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and hybrid tribunals). (p. 9) 1.31  The various international courts associated with the UN could not have been envisaged in 1945, notwithstanding Article 29 of the Charter, which the Security Council uses to establish such subsidiary organs as it deems necessary for the performance of its functions (and which provision has not been uncontroversial as the basis for establishing such courts and tribunals). And there is nothing in the text of the Charter to hint at UN peacekeeping—an activity of major importance from 1957 onwards. The establishment of this activity lay in imaginative arguments about its not being in violation of explicit Charter provisions (and Articles 22 and 29 of the Charter have in due course lent assistance). 1.32  This expansion in structures has been occasioned by the need to respond to unanticipated global events—specific wars, famine, environmental hazards, among others. It has also entailed the stretching of the reach of the UN Purposes and Principles: 1.  To maintain international peace and security, and to that end: to take effective global measures for the prevention and removal of threats to the peace, and for suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international

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law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace… 1.33  Decisions have had to be taken as to what should be included within this volume, given that legal issues relating to the expanding structures of the UN sometimes overlap with legal issues that one might expect to find their home in Oppenheim’s International Law: Peace. Naturally, the practice of the recent international criminal tribunals is examined in this study. The International Criminal Court and the so-called hybrid tribunals are also included, even though they are not UN bodies, because of their close and essential operational relationship to the UN. Examination of the International Tribunal for the Law of the Sea (ITLOS) will be undertaken in the next edition of Oppenheim’s International Law: Peace, because its work is so closely intertwined with the law of the sea, which is examined there. 1.34  It was physically impossible to deal with each of today’s specialized agencies in the way that an Oppenheim study would require. While appropriate reference is made to them, they are not the subject of close study within this volume. 1.35  The substantive law on the use of force is beyond the reach of this work. But peacekeeping and peacemaking, neither regulated nor indeed envisaged in the Charter, have become a core part of this work of the UN—and a means by which it seeks to achieve its Charter objectives—and they find their place here. 1.36  This work, following the approach above, is a collective work in the sense that, while the critical research on, and drafting of, a topic was the responsibility of a single person, the final outcome of each topic—and of the volume as a whole—involved collective responsibility. Every line of every draft has been perused and commented on by the team, as has each re-draft. Widespread knowledge of the UN and exceptional research skills, as well as drafting ability, have been the sine qua non of participation in this project. (p. 10) 1.37  Ahead of this collective scrutiny and input, the drafting on the formal structures of the UN (the General Assembly, the Security Council, the Trusteeship Council, the Economic and Social Council (ECOSOC), subsidiary organs, and the specialized agencies) has been done by James Sloan (Chapters 2, 3, 4, 5, 6, and 7). He has also written Chapters 26 and 27, tracing the development of the UN’s practice in peacekeeping, considering the specific parts played by the Security Council and the General Assembly, examining the complex practice relating to sanctions. The text on UN Territorial Administration has been his drafting responsibility also. 1.38  Dapo Akande has assumed a similar role in respect of the chapter on the membership of the UN (Chapter 8). He has also drafted the chapter on the immunities of the UN, its representatives, officials, and experts on mission (Chapter 16), improving social conditions (Chapter 17), and, within Chapter 31, sections on the Extraordinary Chambers in the Courts of Cambodia, The Special Tribunal for Lebanon, the Kosovo Regulation 64 Panels, East Timor Special Panels for Serious Crimes, and the Bosnia and Herzegovina War Crimes Chamber. He finalized the chapter on powers (Chapter 9). 1.39  Sandesh Sivakumaran has concerned himself with the drafting of the UN’s work on democratic governance (Chapter 19), electoral assistance (Chapter 20), disaster relief (Chapter 21), and the UN’s major role in promoting human rights and the many new structures for strengthening human rights (Chapter 22). He has also written on the Office of the UN High Commissioner for Refugees (Chapter 23), protecting the environment (Chapter 24), the United Nations Compensation Commission (Chapter 30), and, as part of

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Chapter 31, the sections on the International Criminal Tribunals for the former Yugoslavia and Rwanda, and the Special Court for Sierra Leone. 1.40  Philippa Webb has drafted the chapters on voting (Chapter 10), the UN and international law (Chapter 12), the international responsibility of UN (Chapter 13), the financing of the UN (Chapter 14), the UN Secretariat and the Secretary-General (Chapter 15), improving economic wellbeing (Chapter 18), the UN’s role in promoting international law (including the role of the International Law Commission) (Chapter 25), and the peaceful settlement of disputes (Chapter 28), as well as the section on the International Criminal Court (Chapter 31). She had the responsibility for finalizing the chapter on legal personality (Chapter 11). 1.41  Rosalyn Higgins prepared the Preface, this Introduction, and the chapter on the International Court of Justice as a component part of the UN (Chapter 29) and the section on reservations to human rights treaties (part of Chapter 22). She also prepared the original formulation of the purposes, contents, and structure of the entire project, and carries overall responsibility for this collaborative venture. 1.42  Ralph Wilde (who felt he had to withdraw early from the project) prepared the initial drafts on the legal questions relating to powers in the various organs and on the legal personality of the UN.

Footnotes: 1

  For a succinct guide, see Townsend, The League of Nations and the United Nations, available at http://www.bbc.co.uk/history/worldwars/wwone/league_nations_01.shtml. 2

  For a detailed analysis (referring also to other writers) of the formal and real relationship of the PCIJ to the League, see Rosenne, The Law and Practice of the International Court 1920–2005, I: The Court and the United Nations (5th edn, ed Shaw, 2016), 99–105. 3

  ibid, 14–16.

4

  Grewe, ‘History’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), at 3, notes the early input of individuals and private groups, and observes that their proposals were often of a somewhat utopian character. Then governmental expert bodies began to formulate planning papers. ‘It was only after… Dumbarton Oaks that the separate tracks of the discussion merged.’ 5

  For details of what transpired at each phase and location, see ibid, 6–12. The work of Russell and Muther on negotiations regarding the text of the Charter provisions remains outstanding (Russell and Muther, A History of the United Nations Charter (1958)). 6

  Such a debate was at the heart of whether peacekeeping, not envisaged in Chapters VI or VII of the Charter, would be lawful, with the Soviet Union taking a negative strict constructionist view and the Western Powers (and others) preferring the teleological interpretation of the provisions concerned. Similar issues have arisen over whether the ability of the Security Council under Art 29 of the Charter to establish subsidiary organs, could be interpreted to envisage the establishing of international criminal tribunals (see Chapter 31, ‘Criminal Tribunals Established by, or in Relationship with, the UN’, 31.02). 7

  The amendment to Art 23 enlarged the membership of the Security Council from 11 to 15. Art 27 required amendment to take account of consequential changes to voting. It now provides that decisions of the Security Council on procedural matters shall be made by an affirmative vote of 9 members (rather than 7); and on all other matters by an affirmative vote of 9 members (rather than 7), including the concurring vote of the 5 permanent members of the Security Council. The amendment to Art 61 enlarged the membership of the Economic and Social Council (ECOSOC) from 18 to 27. A further amendment, which

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entered into effect on 24 September 1963, increased the membership of ECOSOC from 27 to 54. In the view of some, ECOSOC has been unable to engage in important work commensurate with its status as a principal organ of the UN since its further enlargement in 1963. 8

  This amendment to Art 109(1) provides that a General Conference of Member States, for the purpose of reviewing the Charter, may be held at a date and place to be fixed by a twothirds vote of the Members of the General Assembly and by a vote of any 9 members (formerly 7) of the Security Council. Anomalously, Art 109(3) provides that if such a conference ‘has not been held before the tenth annual session of the General Assembly’, a conference shall be held if so decided ‘by a majority vote of the members of the General Assembly and by a vote of any seven members of the Security Council’. 9

  Müller (ed), The Reform of the United Nations, i: Report; ii: Resolutions, Decisions and Documents (1992). See http://research.un.org/en/docs/uncharter/unreform. See also the oral decision, following from consultation by President of the General Assembly with Member States regarding an ‘elements of convergence text’ circulated to the General Assembly on 27 July 2016. For the gathering of reform attempts, see http:// www.centerforunreform.org, tracing meetings and topics since 2009. 10

  Examples include: Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation (2010); International Convention for the Suppression of Acts of Nuclear Terrorism (2005); United Nations Convention against Corruption (2003); International Convention for the Suppression of the Financing of Terrorism (1999); International Convention against the Taking of Hostages (1979); Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (1976); Convention for the Suppression of Unlawful Seizure of Aircraft (1970); Convention on Offences and Certain Other Acts Committed on Board Aircraft (1963). 11

  The Institut de droit international is examining what limits there are to the Dynamic Interpretation of the Constitutions and Statutes of International Organizations by the Internal Organs of such Organizations, with special reference to the UN (Seventh Commission of the Institut de droit international, Rapporteur Mahnoush H Arsanjani). 12

  1946–7 UNYB 1, Illustration, Organs of the United Nations (UN Presentation 468.2).

13

  Available at http://www.un.org/en/aboutun/structure/pdfs/ UN_System_Chart_30June2015.pdf.

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Part 2 The United Nations: What it is, 2 The General Assembly Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): International organizations

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(p. 13) 2  The General Assembly 1.  Introduction 2.01 2.  Membership and procedure 2.04 3.  Meetings 2.08 4.  Subordinate organs 2.19 5.  Voting 2.23 6.  Role of the President 2.71 7.  Functions 2.79 8.  Limitations on the functioning of the General Assembly 2.98 Aljaghoub, The Advisory Function of the International Court of Justice 1946–2005 (2006); Baehr and Gordenker, The United Nations in the 1990s (1992); Baehr and Gordenker, The United Nations: Reality and Ideal (2005); Blum, Eroding the United Nations Charter (1993); Bowett, United Nations Forces: A Legal Study of United Nations Practice (1964); Conforti, ‘The Legal Effect of Non-Compliance with Rules of Procedure in the U.N. General Assembly and Security Council’ (1969) 63 AJIL 479; Eick, ‘Article 20’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 657; Fitschen, ‘Article 21’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 687; Franck, Recourse to Force: State Action against Threats and Armed Attacks (2002); Geiger, ‘Article 86’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1883; Hadwen and Kaufman, How United Nations Decisions are Made (1962); Higgins, The Development of International Law through the Political Organs of the United Nations (1963); Holloway, ‘Forty Years of the United Nations General Assembly Voting’ (1990) 23(2) Canadian Journal of Political Science, 279; Jennings and Watts, Oppenheim’s International Law (2008); Kappelmann, Die Geschäfstordnung internationaler Organisationen (1956); Kaufman, Conference Diplomacy: An Introductory Analysis (1988); Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems (1950); Klein and Schmal, ‘Article 10’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 461; Klein and Schmahl, ‘Article 12’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 507; Lippold and Paulus, ‘Article 7’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 387; Magiera, ‘Article 9’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 445; New Zealand Ministry of Foreign Affairs and Trade, United Nations Handbook 2016–17: An Annual Guide for Those Working with and within the United Nations (2016); Peterson, The UN General Assembly (2006); Peterson, ‘General Assembly’ in The Oxford Handbook on the United Nations (eds Daws and Weiss, 2008), 97; Potter, An Introduction to the Study of International Organisation (1948); Sands and Klein (eds), Bowett’s Law of International Institutions (2009); Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (1999); (p. 14) Schweisfurth, ‘Article 34’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1086; Shaw, Rosenne’s Law and Practice of the International Court: 1920– 2015, I: The Court and The United Nations (2016); Tomuschat, ‘Article 19’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 637; Wolfrum, ‘Article 18’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 621; White, The Law of International Organisations (2005).

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1.  Introduction 2.01  Possessed of a nearly universal membership and an extremely broad mandate, the General Assembly may be said to be the world’s leading forum for political discussion.1 From the early years of the UN until the end of the Cold War in the late 1980s, East–West tensions prevented the Security Council from functioning optimally, making the General Assembly more influential than was perhaps intended by the drafters of the UN Charter. In its early years, when its membership included a proportionately large number of Western and American states (with the US, at the time, having a strong influence on the voting patterns of many Latin American states), some characterized the General Assembly, and the UN more generally, as a ‘Western organization’ for all practical purposes.2 Such a statement certainly may not be made about the General Assembly today. Decolonization in the 1950s and 1960s led to a significant increase in the number of member states (particularly from Africa), with the UN— and the General Assembly as its plenary organ— now having 193 member states, nearly four times its original membership of 51. With the increase in the number of members has come a significant change in the geographical and political make-up of the General Assembly.3 This, coupled with an increasing reliance on bloc voting, has led to a significant change in the General Assembly’s voting patterns.4 2.02  Since the late 1980s, the General Assembly’s role has narrowed somewhat, in particular as regards the maintenance of international peace. This change is, in part, attributable to the loss of Western dominance in the General Assembly and, in part, to an increase in effectiveness of the Security Council (or at least a reduction in the use of the veto power in that organ) since the end of the Cold War. In recent years, the General (p. 15) Assembly has voiced displeasure at what many of its members see as the encroachment by the Security Council on General Assembly functions.5 2.03  Since the early 1990s, the General Assembly has passed a number of resolutions calling for the revitalization of its work.6 In 2005, the General Assembly established an Ad Hoc Working Group on the Revitalization of the General Assembly and has re-established the group annually.7 Amongst other things, the General Assembly has indicated a desire to raise its visibility,8 including through the convening of major thematic debates on current substantive issues of importance to member states.9 Moreover, it has stressed the need for the General Assembly ‘to play a more active role, including in dealing with issues pertaining to peace and security’.10 A major preoccupation of the Working Group appears to be relations between the General Assembly and the Security Council,11 including a concern that the latter organ has encroached on the work of the former.12

(p. 16) 2.  Membership and procedure 2.1  Composition 2.04  The General Assembly is the only principal organ of the UN on which all member states are represented.13 With the admission of South Sudan in July 2011, UN membership increased to 193 member states. Scores of non-member states, entities, and organizations have received a standing invitation to participate as observer states in the work of the General Assembly.14

2.2  Delegations 2.05  According to the UN Charter, the delegation of each member state may only consist of five representatives.15 This limitation was established with a view to enhancing efficiency and preventing disadvantage to member states that could not afford a larger delegation.16 Since the organization’s early years, there has been a tendency among member states to appoint more than five representatives to a session, due, at least in part, to difficulties experienced by some members in maintaining the same representatives throughout an entire session.17 Some delegations have featured over 100 individuals, while others have

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consisted of a single representative.18 In order to encourage all countries to send representatives, the UN will cover the travel expenses of delegates from member states that have been designated ‘least developed countries’ (LDCs).19 2.06  In addition to five representatives, delegations may also feature five alternate representatives and an unlimited number of advisers, technical advisers, experts, and (p. 17) persons of similar status.20 ‘Upon designation by the chairman of the delegation, advisers, technical advisers, experts, or persons of similar status may act as members of General Assembly committees.’21 Only where such persons are designated as alternate representatives are they ‘eligible for election as Chairmen, Vice-Chairmen or Rapporteurs of committees or for seats in the General Assembly’;22 however, this ‘restriction is not enforced in practice, even in the case of voting’.23

2.3  Procedure 2.07  The General Assembly is given the authority to adopt its own rules of procedure24 and has done so.25 In the early years, the discussions in the General Assembly with regard to the adoption and amendment of the Rules of Procedure concerned two main ideas: the improvement of its methods of work, and the preservation of its functions and powers under the UN Charter.26 In more recent times, the focus has been almost exclusively on the former,27 with one expert describing the General Assembly as being ‘in a state of permanent overhaul’.28

3.  Meetings 3.1  Generally 2.08  The General Assembly meets annually in regular sessions. It is in these annual regular sessions that most of its work takes place. It may also meet in special sessions,29 or in emergency special sessions30 where necessary. 2.09  The General Assembly may met at the Head of State or Head of Government level (a ‘Summit Meeting’), and has done so several times.31 (p. 18) 2.10  Nothing in the Charter requires that the sessions of the General Assembly be public;32 however, the General Assembly Rules of Procedure provide that sessions should be public other than in exceptional circumstances.33 Moreover, ‘decisions of the General Assembly taken at a private meeting shall be announced at an early public meeting of the General Assembly’.34 ‘At the close of each private meeting of the Main Committees, other committees and subcommittees, the Chairman may issue a communiqué thorough the Secretary-General.’35 The Rules of Procedure provide that the General Assembly shall consider the Security Council’s recommendation on the appointment of the SecretaryGeneral and vote on it by secret ballot in private meeting.36 2.11  Due to financial constraints, meetings at Headquarters are not serviced beyond 6 pm or at the weekends, with the exception of the plenary of the General Assembly and the Security Council. As such, all Main Committees of the General Assembly may only sit from 10 am until 6 pm on weekdays.37 The allocation of conference rooms and conference servicing resources is organized by the Meetings Management Section of the Department for General Assembly and Conference Management. This organizational unit prepares the yearly meetings plan and finalizes the weekly and daily programmes of meetings held at Headquarters.38

3.2  Regular sessions

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2.12  The General Assembly has held a regular session every year since 1946. It meets in the renovated39 General Assembly Hall at the UN Headquarters in New York.40 The meetings begin in mid-September.41 Historically, an end date was fixed42 for late December. However, a practice has developed of resuming the meeting in the fol(p. 19) lowing year as required, including in June to elect the officers for the next regular session.43 Since 1997, annual regular sessions have tended to sit for the whole year, ending on the day before (or even the day of) the beginning of the next year’s annual regular session.44 As such, the General Assembly effectively sits in permanent session.45 Nothing in the UN Charter or the Rules of Procedure precludes it from doing so. However, the requirement of the Charter that it meets in ‘annual sessions’46 may imply that the regular session from one year must not overlap with that of the next year—something that has never happened in practice. There have, however, been occasions on which the regular sessions have overlapped with emergency special sessions.47 The main work of the General Assembly, however, continues to take place between September and December annually.48

3.3  Special sessions 2.13  Special sessions of the General Assembly must be convened by the Secretary-General within 15 days of receipt of a request from the Security Council, on a vote of any nine members thereof,49 or of a majority of the member states (or where a majority of members concurs with any member’s request).50 As of December 2016, the General Assembly had held 30 special sessions.51 As of the same date, the Security Council (p. 20) had relied on its right to convene a special session of the General Assembly only once (the 2nd special session in 1948); three requests for special sessions had been made by states;52 and the remaining 26 had been convened by the General Assembly. 2.14  In the early years, the convening of a special session was reserved for urgent matters and debates were, at times, forthright in nature.53 Subsequent practice has shown a willingness to convene a special session on a subject matter of a more permanent character,54 such as HIV/AIDs or the right to housing. 2.15  In January 2005, on the 60th anniversary of the liberation of the Nazi death camps in 1945, the UN General Assembly held its first ever special commemorative session.55 The following year, it held a special commemorative session to mark the 20th anniversary of the Chernobyl disaster.56

3.4  Emergency special sessions 2.16  In addition to special sessions, an ‘emergency special session’ of the General Assembly may be convened pursuant to GA Res 377 (V) (1950), known as the ‘Uniting for Peace’ Resolution.57 This Resolution requires the General Assembly to consider a (p. 21) matter immediately where the Security Council, ‘because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of peace and security in any case where there appears to be a threat to the peace, breach of the peace or act of aggression’. Emergency special sessions shall be convened within twenty-four hours of the receipt by the Secretary-General of a request for such a session from the Security Council, on the vote of any nine members thereof, or of a request from a majority of the Members of the United Nations expressed by vote in the Interim Committee or otherwise, or of the concurrence of a majority of Members as provided in rule 9.58

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2.17  As at December 2016, 10 emergency special sessions have been convened.59 Of these, six were convened by the Security Council60 and four were convened at the request of individual member states (with the Secretary-General obtaining the required majority).61 2.18  Despite its initial enthusiasm for the convening of emergency special sessions of the General Assembly, the Security Council has not done so since 1982. This may be due in part to the Security Council’s reduced use of the veto since the end of the Cold War. It may also reflect the fact that, given the considerable expansion in the number of member states in the General Assembly, Security Council member states that were once able to exercise a significant influence on decision-making in the General Assembly are no longer able to do so.

4.  Subordinate organs 4.1  Generally 2.19  The General Assembly functions in large measure through the work of its six Main Committees, as well as its General Committee. The General Assembly’s subsidiary organs, including these Committees, are discussed elsewhere in this volume.62 The General Assembly shall not, unless it decides otherwise, make a final decision upon any item on the agenda until it has received the report of a committee on that item.63 (p. 22) Discussion of a report of a Main Committee in a plenary meeting shall take place only if at least one-third of the members present and voting at the plenary meeting consider such discussion to be necessary.64

4.2  General Committee 2.20  While the General Debate is taking place, the General Committee begins its work.65 The General Committee consists of the President, the Vice-Presidents, and the Chairs of the Main Committees. It considers the provisional agenda and the supplementary list, and makes recommendations to the Plenary regarding whether an item should be included in the final agenda66 and, if so, the priority to be accorded to it.67 It also suggests whether an item should be allocated to the Plenary or to one of the Main Committees, and coordinates the work of the Main Committees.68 Informal weekly meetings take place among the General Assembly President, the Chairs of the Main Committees, and the UN UnderSecretary-General in charge of General Assembly Affairs.69

4.3  Main Committees 2.21  Most of the General Assembly’s work occurs in the Main Committees. There are six Main Committees:70 •  First Committee—Disarmament and International Security; •  Second Committee—Economic and Finance; •  Third Committee—Social, Humanitarian, and Cultural; •  Fourth Committee—Special Political and Decolonization; •  Fifth Committee—Administrative and Budgetary; •  Sixth Committee—Legal. 2.22  The Main Committees begin their work after the General Debate by electing their Vice-Chairs and Rapporteurs, and adopting a preliminary schedule of work based on the suggestion of the Secretariat.71 The Main Committees are all committees of the whole and, as such, each features an unwieldy 193 member states. The Main Committees have addressed this problem by conducting work through formally established subcommittees,72 ‘contact groups’, or ‘Working Groups’, as well as by (p. 23) conducting informal discussions

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to work out the details of draft resolutions.73 The Main Committees operate through formal public meetings as well as closed informal sessions, as required.74

5.  Voting 5.1  Generally 2.23  Each member of the General Assembly has one vote.75 Decisions of the General Assembly on important questions,76 as well as decisions on amendments to proposals relating to important questions,77 shall be made by a two-thirds majority of the members present and voting.78 Other decisions shall be made by a majority of the members present and voting.79 2.24  The term ‘decision’ as used in Article 18 of the UN Charter is not defined, but a 1950 study prepared by the Secretary-General noted that the term refers to ‘all types of actions’ taken by the General Assembly ‘by a vote while performing its functions under the Charter’.80 On substantive matters, such decisions are characterized as ‘General Assembly resolutions’.81 The numbering system of the UN Secretariat has changed over the years.82

(p. 24) 5.2  Voting on matters of election or appointment 5.2.1  Generally 2.25  At each annual session, the General Assembly is required to vote on the election or appointment of a number of individuals or states to fill positions or assume seats on other UN organs.83 Prominent among these are the election of the President and Vice-Presidents of the General Assembly, and elections to positions within the other principal organs. Originally all elections were by secret ballot;84 however, over time, strict adherence to that practice has been judged to be impractical in certain cases.85 No nominations are permitted for elections.86

5.2.2  Regional distribution 2.26  In the early years of the organization, there was no formal regional distribution of positions in the General Assembly or seats in other principal bodies or subsidiary bodies.87 In 1957, noting the considerable increase in membership of the UN and (p. 25) recognizing that the organs of the UN should be constituted to reflect their representative character, the General Assembly increased the number of Vice-Presidents to 13.88 By the same resolution, it provided that the Vice-Presidents should be elected based on the following regional groupings: ‘African and Asian States’ (four), ‘Eastern European States’ (one), ‘Latin American States’ (two) and ‘Western European and other States’ (two); five additional VicePresidents were to come from the permanent member states.89 A similar requirement for regional distribution was subsequently relied upon by the General Assembly when, in 1963, it again increased the number of Vice-Presidents from 13 to 17.90 It also called for regard to be had to equitable geographical rotation of the office of President among the following regions: African, Asian, Eastern European, Latin American, Western European and other.91 2.27  In 1978, when the General Assembly once again increased its number of VicePresidents, this time to 21,92 it called for Vice-Presidents to ‘be elected in such a way as to ensure the representative character of the General Committee’, and again called for regional distribution; however, it split the Afro-Asian grouping into two.93 Thus it called for distribution among the following groupings: ‘African States’ (six), ‘Asian States’ (five), ‘Latin American States’ (three), ‘Western European or other States’ (two), and ‘Eastern European States’ (one); five additional Vice-Presidents were to come from the permanent member states.94 In the same resolution, it called for equitable geographical rotation of the office of President of the General Assembly.95

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2.28  Currently the names of the five regional groupings are generally known as follows: African Group, Asia-Pacific Group, Eastern European Group, Latin American and Caribbean Group (GRULAC), Western European and Others Group (WEOG).96

(p. 26) 5.2.2.1  Meetings of regional groups to decide on candidates 2.29  Regional groups meet at least once a year at the ambassadorial level, consisting of the permanent representatives of the member states,97 to discuss the filling of the nonpermanent seats in the Security Council, all seats in ECOSOC, and those in some other bodies.98 In addition, they address the distribution of the offices of General Assembly VicePresidents, as well as the Rapporteurs of the General Assembly’s Main Committees.99

5.2.2.2  Composition of regional groups 2.30  The regional group system is not mentioned or envisaged in the UN Charter.100 While the General Assembly and other UN bodies have endorsed the role to be played by regional groups in the work of the organization through their practice and Rules of Procedure, according to the Office of Legal Affairs, no legal definition has ever been given to the concept of a regional group, nor the criteria for membership thereof; ‘it is understood that admission to a regional group is based on consensus’.101 Discussions within regional groups are conducted in private and the UN Secretariat is not privy to them.102 2.31  The following membership groupings are generally accepted:103 •  African group: Algeria, Angola, Benin, Botswana, Burkina Faso, Burundi, Cabo Verde, Cameroon, Central Africa Republic, Chad, Comoros, Congo, Côte d’Ivoire, Democratic Republic of the Congo, Djibouti, Egypt, Equatorial Guinea, Eritrea, Ethiopia, Gabon, Gambia, Ghana, Guinea, Guinea-Bissau, Kenya, Lesotho, Liberia, Libya, Madagascar, Malawi, Mali, Mauritania, Mauritius, Morocco, Mozambique, Namibia, Niger, Nigeria, Rwanda, São Tomé and Príncipe, Senegal, Seychelles, Sierra Leone, Somalia, South Africa, 104 South Sudan, Sudan, Swaziland, Togo, Tunisia, Uganda, United Republic of Tanzania, Zambia, and Zimbabwe. •  Asia-Pacific group: Afghanistan, Bahrain, Bangladesh, Bhutan, Brunei Darussalam, Cambodia, China, Cyprus, 105 Democratic People’s Republic of Korea, Fiji, India, Indonesia, Iran (Islamic Republic of), Iraq, Japan, Jordan, Kazakhstan, Kuwait, Kyrgyzstan, Lao People’s Republic, Lebanon, Malaysia, Maldives, Marshall Islands, Micronesia (Federated States of), Mongolia, Myanmar, Nauru, Nepal, Oman, Pakistan, Palau, Papua New Guinea, Philippines, Qatar, Republic of Korea, Samoa, Saudi Arabia, Singapore, Solomon Islands, Sri Lanka, Syrian Arab Republic, (p. 27) Tajikistan, Thailand, Timor-Leste, Tonga, Turkmenistan, Tuvalu, United Arab Emirates, Uzbekistan, Vanuatu, Vietnam, and Yemen. While Kiribati 106 and Turkey 107 are sometimes shown as being part of the AsiaPacific group; each is something of a special case. •  Eastern European Group: Albania, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Estonia, Georgia, Hungary, Latvia, Lithuania, Montenegro, Poland, Republic of Moldova, Romania, Russian Federation, Serbia, Slovakia, Slovenia, the former Yugoslav Republic of Macedonia, and Ukraine. •  Latin American and Caribbean Group (GRULAC): 108 Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Bolivia (Plurinational State of), Brazil, Chile, Colombia, Costa Rica, Cuba, 109 Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, Trinidad and Tobago, Uruguay, and Venezuela.

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•  Western European and Other Group (WEOG): Andorra, Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Israel, 110 Italy, Lichtenstein, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Spain, Sweden, Switzerland, Turkey, 111 UK. (p. 28) •  States not members of any regional group: The US is not a member of any regional group. While it attends meetings of WEOG as an observer state, and is considered to be a member of that group for electoral purposes, 112 it acts independently. 113

5.2.3  Election of president and vice presidents 2.32  Unless it decides otherwise, the General Assembly will elect a President114 and 21 Vice-Presidents.115 This is normally done by secret ballot.116 The President and VicePresidents are to be elected at least three months before the opening of the General Assembly session,117 and members meet briefly in June of each year to elect the officers for the upcoming regular session.118 2.33  The General Assembly increased the number of Vice-Presidents to 13 in 1957,119 to 17 in 1963,120 and to 21 in 1978.121 As discussed,122 with each increase, the General Assembly called for geographical distribution of the offices, ensuring at the same time that the countries with permanent seats on the Security Council would always have one VicePresident each.123 2.34  The Vice-Presidents are to be elected after the Presidents of the six Main Committees,124 so as to ensure the representative nature of the General Committee.125 Because whoever receives the nomination of the regional group that has the office that year automatically wins the acceptance of the other member states, geographical groups, in effect, elect the President.126 As a matter of practice—though there is no formal rule—the President of the General Assembly may not be a national of one of the permanent member states of the Security Council.127

(p. 29) 5.2.4  Election of members of principal organs 2.35  Decisions of the General Assembly on elections in relation to the Security Council, the Trusteeship Council, and ECOSOC are listed as ‘important questions’ under Article 18(2) of the UN Charter, and therefore must be made by a two-thirds majority of the members present and voting. Its decisions regarding the appointment of a Secretary-General and the election of the judges of the ICJ are not classified as important under Article 18(2), and thus, are decided by a simple majority.128

5.2.4.1  Security Council 2.36  Each year the General Assembly elects five of the ten non-permanent members of the Security Council for two-year terms. The General Assembly is meant to pay due regard ‘in the first instance to the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organisation’, and to have regard for ‘equitable geographical distribution’.129 In practice, however, the General Assembly may have no scope to consider the candidate state’s contribution to the maintenance of peace and security: frequently, a regional group will present the General Assembly Plenary with a slate of candidates that does not feature any competing candidates from within the group—known as a ‘clean slate’ of candidates.130 2.37  The nature of the equitable geographical distribution for the election of nonpermanent members of the Security Council is as follows: ‘(a) Five from African and Asian States; (b) One from Eastern European States; (c) Two from Latin American States; (d) Two from Western European and other States’.131 This has evolved into practice whereby in odd years (with the term to begin in the following, even year), the distribution will be as follows: (a) two from African States; (b) one from Asian States; (c) one from Eastern European From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

States; (d) one from Latin American (or Caribbean) States. In even years (with the term beginning in the following, odd year), the distribution is as follows: (a) one from African States; (b) one from Asian States; (c) two from Western European States; (d) one from Latin American (or Caribbean) States. (p. 30) 2.38  An arrangement has developed in order to ensure that an Arab state is constantly on the Security Council.132 Moreover, members of the group known collectively as the G4 nations, comprising Brazil, Germany, India, and Japan, whose members aspire to permanent representation on the Security Council, are regularly elected to non-permanent seats by their respective regional groups.133 2.39  While no nominations are permitted,134 the President will advise the General Assembly which candidate(s) have been put forward by each regional group.135 A two-thirds majority is required even where a single candidate is put forward by the regional group.136 2.40  Negotiations as to which candidate(s) is (are) to be put forward by the regional groupings may take place within a meeting of regional grouping as well as more broadly. For example, the African Union (AU) has a procedure for agreeing upon the African candidates for the Security Council.137 Where a state aspires to a non-permanent seat, it will announce its intention to seek it, sometimes years in advance. Where there are more interested states than there are seats available for the regional grouping, states may take informal soundings to determine the level of support they might receive, given the other state (or states) also aspiring to the seat. A state that has announced its desire to serve but which does not perceive itself as having the requisite support within the regional group, may withdraw, right up to the day of the vote.138 Withdrawal may serve to prevent loss of face where a state is convinced it is unlikely to be successful; states may also negotiate withdrawal with another state, with a view to securing the support of that state in a future election.139 (p. 31) 2.41  Where the regional groupings do not present a ‘clean slate’, the General Assembly will be required to decide among the proffered candidates.140 When there is only one vacancy to be filled and no candidate obtains the requisite two-thirds majority in the first ballot, a second ballot shall be taken, which shall be restricted to the two candidates obtaining the largest number of votes—a ‘restricted ballot’—and the balloting will continue until one candidate secures two-thirds of the votes cast. Frequently, after the initial vote, the state receiving fewer votes will withdraw, resulting in the remaining state, at the next ballot, receiving the required two-thirds majority.141 2.42  If neither state on a restricted ballot withdraws, and neither receives the necessary two-thirds vote after three ballots, the voting is opened up to any eligible person or member —an ‘unrestricted ballot’. Although the emergence of new candidates at this stage is rare, it has occurred.142 If three unrestricted ballots are inconclusive, three restricted ballots will be held, limited to the two candidates who obtained the most votes in the third unrestricted ballot. If this does not lead to the necessary two-thirds majority, the voting will again become unrestricted for three more rounds. If necessary, the voting will continue (three unrestricted ballots, followed by three restricted ballots) until a state is elected with a twothirds majority.143 2.43  The longest election process took place between 26 October 1979 and 7 January 1980 and featured 155 rounds.144 During this process, the issue arose as to the possible (p. 32) inability of the General Assembly to elect a non-permanent member of the Security Council, ‘which would thereby result temporarily in a Security Council of only 14 members instead of 15 members, as prescribed by the Charter’.145 The UN Legal Counsel advised that failure by the General Assembly to elect a non-permanent member ‘would constitute a failure to comply with its constitutional functions and would violate the clear language of Article 23 of the Charter’.146 However, the Legal Counsel observed that ‘such an act of omission or failure of the General Assembly to fulfil its constitutional obligations cannot be held to From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

produce legal consequences so fundamental to the Organization as the paralysis of a principal organ’.147 Ultimately, two contesting candidates—Colombia and Cuba—withdrew and Mexico was elected.148

5.2.4.2  International Court of Justice 2.44  The ICJ consists of 15 judges,149 five of whom are elected every three years150 by the General Assembly and the Security Council, voting simultaneously, based on a list of persons nominated by the national groups151 in the Permanent Court of Arbitration (PCA).152 There is no formal requirement for regional distribution (as with the members of ECOSOC or the non-permanent members of the Security Council); however, the ICJ Statute requires electors to bear in mind that the ‘persons to be elected should individually possess the qualifications required, but also that in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured’.153 It is ‘generally accepted’ that a national of each of the five states with permanent members on the Security Council should be (p. 33) elected to the Court.154 The Court may not include more than one judge from the same state.155 2.45  A practice was adopted by the General Assembly in 1960 and has been followed consistently such that ballots in elections to the ICJ shall be unrestricted.156 ‘If in the first ballot in either the General Assembly or the Security Council, the number of candidates obtaining an absolute majority is fewer than five, a second ballot will be held and balloting will continue at the same meeting until five candidates have obtained the required majority.’157 The General Assembly and the Security Council proceed independently of each other,158 and only once each organ has its list of five candidates may it notify the other organ of its nominees.159 Nominees who receive an absolute majority in the Security Council and the General Assembly will be considered to have been elected.160 In the past, the situation has occurred where more than the required number of candidates has received an absolute majority.161 In such circumstances, the practice has been to hold a new vote on all the candidates.162 (p. 34) 2.46  Where the lists of candidates emerging from the Security Council and the General Assembly are not identical, each organ will independently proceed to a second, and if necessary a third, meeting to elect candidates for the seats remaining.163 If, after the third meeting, one or more seats remain unfilled, the General Assembly and the Security Council may (at the request of either organ) form a joint conference consisting of six members (three appointed by each organ), which may, by an absolute majority, agree upon one name for each seat remaining vacant and submit the name or names for the respective acceptance of the General Assembly and the Security Council. If the Joint Conference unanimously agrees, it may submit the name of a person not included in the list of nominations, provided that that candidate fulfils the required conditions as set out in Article 12(2) of the ICJ Statute.164 ‘If the Joint Conference is satisfied that it will not be successful in procuring an election, those members of the Court who have already been elected shall… themselves fill the vacant seat (or seats) by selection from among those candidates who have obtained votes either in the General Assembly or in the Security Council.’165 2.47  Where a candidate notifies the Secretary-General of his/her withdrawal in advance of the printing of the ballot sheets, his/her name will not appear.166 Withdrawals after the election has begun should be made in the name of the nominating national group or groups.167 Withdrawals may not take place while a ballot is in progress, but may take place between ballots.168 In reply to a perceived concern that the withdrawal of a candidate could not take place after several ballots had occurred, a representative of the Department for General Assembly and Conference Management advised a meeting of the General Assembly that while the ICJ Statute was silent on withdrawal of candidate, there was a

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(p. 35) long and well-established practice of the Assembly, in the light of the fact that candidates are nominated by national groups of Member States,…[that] the withdrawal of nominations may also occur at any point leading up to the election, in accordance with Article 5 of the Statute of the International Court of Justice.169

5.2.4.3  ECOSOC 2.48  Each year, 18 states are elected to seats on ECOSOC for three-year periods.170 Elections to seats on ECOSOC are on a regional basis.171 Because states are eligible for immediate re-election,172 some states have a virtually continuous membership.173 Where a vacancy arises in the middle of a term, the General Assembly will hold a by-election at its next session to elect a member for the unexpired term.174 Where a regional group puts forward a ‘clean slate’ of candidates in accordance with its rotation scheme, the real decision-making takes place at the level of the regional group.175 2.49  In 1961, the General Assembly elected one fewer member of ECOSOC than it was obliged to under Article 61(3) of the UN Charter.176 With some members arguing that decisions of ECOSOC taken in such circumstances would be open to challenge, the Acting President of ECOSOC appealed to the President of the General Assembly to fill the membership vacancy on an expedited basis.177 In 1983, legal advice was sought regarding the legal impact of the General Assembly’s being temporarily unable to elect a member of ECOSOC. The Legal Counsel said that such a situation would be of a similar nature to the General Assembly’s not being able to elect a (p. 36) permanent member of the Security Council178 and, in this regard, noted that both the Security Council and ECOSOC were principal organs and possessed of a similar constitutional framework.179 More specifically, the Legal Counsel observed that if the General Assembly was temporarily unable to elect a member of ECOSOC: (a)  The Council would then be imperfectly constituted until the election is completed; (b)  However, any decisions taken by the Council while thus imperfectly constituted would still be valid decisions—though, in the first instance, this is a matter for the Council itself to consider; (c)  The General Assembly has an obligation to make every effort to complete the election of the Council as soon as possible so that the period during which it has to meet with imperfect composition is reduced to a minimum. 180

5.2.4.4  Secretary-General 2.50  Article 97 of the UN Charter provides that the Secretary-General ‘shall be appointed by the General Assembly upon the recommendation of the Security Council’. The appointment of the UN Secretary-General is discussed elsewhere in this volume.181

5.2.4.5  Trusteeship Council 2.51  The General Assembly has not held elections to the Trusteeship Council since its 20th session.182 While the Trusteeship Council was active (until 1994) its membership was composed of three groups: (a)  member states that administered trust territories (‘administering members’);

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(b)  the permanent members of the Security Council that did not administer trust territories (non-members); and (c)  as many additional non-administering members as necessary to ensure that there was parity between administering members and non-administering members. 183 The member states in the third group were elected by the General Assembly for three-year terms and could be re-elected.184 2.52  Now that there are no longer any trust territories, the membership of the Trusteeship Council consists only of the five permanent members of the Security Council and elections of new members is not required.

5.3  Voting on draft resolutions 5.3.1  Pre-sessional consultations 2.53  The debates that take place publicly in the General Assembly sessions—sometimes known as ‘conference diplomacy’ or ‘parliamentary diplomacy’—tell only part of the (p. 37) story. The positions of delegations will generally be developed during a number of informal confidential meetings with like-minded states.185 2.54  States proposing a resolution generally seek consensus.186 The state or states seeking to have a resolution passed will endeavour to obtain wide support through preliminary discussions with other delegations, particularly those delegations of states belonging to the same regional or sub-regional caucus, which are more likely to be sympathetic to the objectives of the proposing states.187 Where the proposing states find support within their regional caucus, they would then look for support more broadly, often modifying their proposal along the way.188 Unlike in the early days of the General Assembly’s functioning, sponsors of resolutions now must conduct extensive lobbying in order to be successful with ‘even slightly controversial resolutions’.189 Given the one-vote-per-member system in the General Assembly, the ‘smallest and most obscure members enter the [lobbying] process, for their votes count for as much as any other government’s’.190 2.55  Over the years, as the membership in the General Assembly has grown, efforts have been made to expedite its work. According to Peterson: The greatest change resulted from substituting informal consultations for detailed public discussions of drafts. Informal consultations saved considerable time compared to the early public discussions, reinforced the development of regional and other caucuses of member states, and both depended on and fostered personal connections among delegates.191

5.3.2  Agenda 2.56  The Secretary-General draws up the provisional agenda for a regular meeting of the General Assembly and provides this to members at least 60 days in advance of the session.192 The scope of the agenda is potentially very broad: the General Assembly may discuss ‘any questions or matters within the scope of the…Charter or relating to the powers and functions of any organs’.193 The provisional agenda (p. 38) includes items placed on it by the previous session of the General Assembly, items proposed by member states, items the Secretary-General deems necessary to put before the General Assembly, and reports from the other principal organs and the specialized agencies.194 2.57  Additional items may be placed on the agenda less than 30 days before the opening of a regular session or during the session only if a majority of the General Assembly so agrees.195 According to the Rules of Procedure, the additional items should be of an ‘important and urgent’ nature.196 In practice, however, the requirement that the additional

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items be important and urgent in nature is routinely ignored and all additional items are included.197 2.58  The list of agenda items has become increasingly longer over the years. For its 1st session (1946) the agenda featured 108 items; for its 71st session (2016) it featured 173 items, with agenda items now grouped under thematic headings.198 Consequently, careful discussion of all the items is no longer possible, with some concluding that ‘the General Assembly remains unable to define priorities’.199 2.59  The provisional agenda and list of supplementary matters (along with the report of the General Assembly thereon) are submitted to the General Assembly for approval as soon as possible after the opening of the regular session.200 2.60  After the General Debate, the plenary will deal with particular agenda items. Most agenda items are debated in one of the General Assembly’s Main Committees, each of which has a plenary membership.201 The rules of the General Assembly organize the discussion of the item into three phases: (i) broad debate; (ii) detailed consideration of proposed resolutions; and (iii) voting on proposals.202 Because of the increase in agenda items and the number of member states, it is no longer possible for the Committees to work their way through their agendas on an item-by-item basis; as a result, several issues are addressed concurrently, making matters very difficult for delegations with few members.203 Such delegations may rely on other, larger delegations to alert them to important votes.204

(p. 39) 5.3.3  Debates 2.61  The deliberative process in the General Assembly begins with the General Debate, in which members have the opportunity to present their views on the state of the world. In 2003, the General Assembly decided to limit the General Debate to nine working days, a significant reduction in length from the previous three-week period.205 In the same year, the General Assembly decided that the General Debate should feature a theme, to be suggested by the President-elect.206 In practice, however, world leaders tend not to limit themselves to the theme, and sometimes use the General Debate to make long207 and highly provocative statements.208 Debates can be heated, and even fractious, during times of increased international tension, or where there are grave differences of opinion on the topic to be addressed.209 2.62  After the General Debate, Plenary will take up particular topics of current interest for the rest of the session.210 In October and early November, the Plenary takes up organizational matters and certain other issues it has reserved for itself.211 Subsequent (p. 40) meetings of the Plenary and the meetings of Main Committees212 are more structured and proceed according to the agenda. Most of the resolutions and decisions adopted during these months are routine in nature (such as selecting members for other UN bodies, or noting the reports of other UN organs), but may include certain controversial matters that members wish to be debated in the General Assembly Hall.213 2.63  From mid-November to early December, the focus of the Plenary is receipt of reports of the Main Committees.214 Because of the number of Committee Reports (some 20 to 30 per day215) that need to be introduced by the Main Committee Rapporteurs and considered by Plenary, Plenary meetings in December are generally quite rushed affairs, with draft resolutions often being adopted as presented.216 The pace can slow down, however, where there are new developments that need to be addressed, or if delegations mount a lastminute effort to change what was agreed in one of the Main Committees.217 2.64  Attempts have been made to streamline the process over the years. These included placing time-limits on speeches, scheduling two or more items for the same meeting, and staggering consideration of particular items.218

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5.3.4  Bloc voting 2.65  While the system of regional groups219 was established by the General Assembly with a view to ensuring broad representation in the distribution of positions on organs or suborgans, regional groups may play a crucial role in whether a draft resolution receives the required support.220 Bloc voting will often occur through regional groups; however, states’ interests within such groupings may vary considerably depending on the issue, and members do not always vote alongside one another.221 The (p. 41) alignment of interests may be dependent on the particular regional group.222 Moreover, members of regional groups may feel more or less affinity with the group depending on the subject matter of the draft resolution in question. Regional groupings may have sub-groupings that may impact on their voting. For example, the Nordic states within the WEOG will sometimes vote together,223 or the Arab members of the African and Asian groups may meet separately to discuss their own voting preferences.224 2.66  In addition to the regional groups, voting may be influenced by other groupings, depending on the particular subject matter. For example, the African, Asian, and Latin American representatives may meet as the ‘Group of 77’ (‘G-77’) on economic issues.225 (p. 42) States will often meet as the Non-Aligned Movement (NAM).226 This organization was formed during the Cold War by states that did not seek to formally align themselves with either the US or the USSR, instead seeking to remain neutral.227 Member states of the EU will have meetings of their own.228 The Organization of Islamic Cooperation, which exists outside the UN but enjoys permanent observer status,229 sponsors meetings of Muslim countries on issues in the General Assembly of interest to them.230

5.3.5  Voting process 2.67  When a proposal has been adopted or rejected, it may not be reconsidered at the same session unless the General Assembly, by a two-thirds majority of the members present and voting, so decides.231 Traditionally, voting took place by show of hands. However, since the introduction of electronic voting machines, mechanical voting has become the norm.232 Where a vote is taken (whether mechanically or otherwise), it will normally be documented as a summary of the result, that is, only the number (p. 43) of countries that voted for or against a resolution, or which abstained, will be made available, without identification of how an individual member state voted. If a state requests a recorded vote (or roll-call vote), the record will identify the vote of each member state. While any state may request a rollcall vote,233 these are discouraged234 and only infrequently requested.235

5.3.6  Adoption without a vote 2.68  General Assembly resolutions are frequently decided upon without a vote.236 At its first meeting in 1946, three-quarters of the General Assembly’s resolutions were adopted without a vote. At the height of the Cold War (1949–54), less than one-third of General Assembly resolutions were adopted without a vote. However, by 1991, the proportion of General Assembly resolutions so adopted had again risen to three-quarters.237 While the technique of passing General Assembly resolutions without a vote has ‘played a significant role in the practice of the [General Assembly]’,238 it has never been expressly referred to in the UN Charter or the Rules of Procedure.239 2.69  At the 19th regular session of the General Assembly in 1964, member states agreed to adopt draft proposals by consensus without a formal vote240 in order to avoid denying the right to vote241 to certain Eastern European states242 which were behind in their contributions.243

(p. 44) 5.3.7  Taking no action

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2.70  The Rules of Procedure allow a representative to move for the adjournment of the debate on the item under discussion, thereby foreclosing protracted discussion and moving immediately to a vote.244 A variation on this procedure, whereby a member proposes a measure to ‘take no action’ on a measure proposed in the General Assembly, has been relied upon at times to prevent a decision from being taken on certain controversial matters. Such a procedural manoeuvre was first used at a plenary session of the General Assembly in 1983, when Iran submitted an oral amendment to the General Assembly’s draft decision to approve the report of the Credentials Committee, such that the credentials of Israel would not be accepted.245 Norway tabled a motion to take no action on the Iranian proposal and the motion was approved. While there was a debate about whether such a practice was acceptable under the Rules, the Legal Counsel, based on a review of the practice of the General Assembly that showed that the Assembly had ‘on several occasions in the recent past acted on motions to take no action on a proposal before it on the basis of rule 74’, advised the General Assembly that Norway’s motion was ‘receivable from a legal standpoint’.246

6.  Role of the President 6.1  Generally 2.71  As noted,247 the President is elected by the General Assembly,248 normally by secret ballot.249 2.72  The impact made by the President of the General Assembly will depend on the personality of the individual and the importance he/she attaches to the role. The procedural functions involved in presiding over the General Assembly, in many cases, may require political deftness and a careful understanding of international law. The President may also use his/her office to raise issues of particular concern during his/her tenure. In addition, he/ she has an important representational role—though some have taken this more seriously than others over the years. 2.73  The President is not a UN employee and, as such, does not receive a UN salary. Usually, the President’s Permanent Mission will make arrangements for his/her personal expenses.250

(p. 45) 6.2  Procedural powers 2.74  The President of the General Assembly (or, where necessary, a Vice-President designated by him/her)251 shall control the proceedings of the General Assembly. This includes declaring the opening and closing of each plenary meeting of the session, directing the discussions in plenary meeting, ensuring observance of the Rules of Procedure, according and limiting the right to speak, putting questions, and announcing decisions.252 The Rules of Procedure vest the President with considerable discretion: subject to the Rules of Procedure, he/she has complete control of the proceedings at any meeting.253 For example, it falls to the President to rule on points of order,254 which can have a significant impact on the functioning of the organization.255 The President may propose limitations on the time to be allowed to speakers,256 propose limits on the number of times each representative may speak, or propose the closure of the list of speakers or the closure of the debate.257 The President may also propose the suspension or the adjournment of the meeting, or the adjournment of a debate on an item under discussion.258 Where he/she considers a speaker’s remarks not to be relevant to the subject under discussion, the President may call the speaker to order.259 Where there is a motion to adjourn a debate, he/ she may limit the time allocated to speakers.260 The President is also empowered to permit the discussion and consideration of amendments or of motions as to procedure, even though such amendments and motions have not been circulated or have only been circulated the

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same day.261 The President has, at times, declared draft resolutions recommended by the General Assembly’s committees to be adopted in the absence of objections.262 2.75  While the President’s procedural powers are frequently routine, at times their exercise has required the President to take difficult decisions with wide-ranging political (p. 46) ramifications. Included here have been decisions relating to voting,263 the characterization of a member state’s relationship with the organization,264 and the ability of a state to participate in the General Assembly where its credentials have not been recognized.265

(p. 47) 6.3  Other functions 2.76  In 2010, the President spoke of the role having been transformed, ‘from merely presiding over meetings to a deeper and more substantive engagement and contribution to the work of the Assembly’.266 The General Assembly has called for the role and leadership of the President of the General Assembly to be strengthened,267 and has called on Presidents of the General Assembly to increase their public visibility, ‘including through enhanced contacts with representatives of the media and civil society, thus promoting the activities of the Assembly’.268 2.77  Among the functions of the President are the following: selecting a theme for the General Assembly’s General Debate,269 proposing interactive debates on current issues on the agenda of the Assembly,270 raising awareness of certain issues through media statements,271 providing, at the end of his/her tenure, a report on best practices and lessons learned to his/her successor,272 having monthly meetings with the President of the Security Council, and working closely with the Secretary-General.273 The President also has official, ceremonial, and protocol functions to (p. 48) perform, including representing the body to the outside world.274 In 2010, the President estimated that he received an average of 60 official visitors per month in his office.275 In addition, the President is ‘invited to attend, preside over, and participate in international conferences, summits, forums, regional and subregional meetings’.276

6.4  Office of the President 2.78  The Office of the President of the General Assembly supports the President in the discharge of his/her responsibilities. The role of the Office has changed over time to become more substantive and expert in nature, and it now consists of a group of experts who ‘work closely with the President, to provide informed analysis and expert advice’.277 The Office is provided with five staff members annually.278 The budget for the Office was set in 1998 (at US $250,000 per annum); between then and 2010, the budget was not reviewed or increased, except for inflation adjustments.279 The General Assembly has called for an increase in resources available to the Office of the President of the General Assembly, for the provision of ‘office and conference space with a view to enabling the President to carry out his/her functions in a manner commensurate with the dignity and stature of the Office’, and made a request of the Secretary-General for the provision of ‘proper protocol services at Headquarters and at other United Nations duty stations’.280

(p. 49) 7.  Functions 7.1  Generally 2.79  Broadly speaking, the General Assembly’s functions may be divided into two categories: (i) those relating to its role as an overseer of the organization and the other principal organs; and (ii) those relating to the attainment of the purposes and principles of the UN Charter.

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7.2  Organization-related functions 7.2.1  Issues relating to membership 2.80  Admission of ‘new’ member states to the UN (ie those in addition to the ‘original’ members281) is a matter to be ‘effected by a decision of the General Assembly upon the recommendation of the Security Council’.282 The ICJ has stressed that this wording unambiguously assigns a role to both the General Assembly and the Security Council, and therefore the General Assembly may not act unilaterally in such matters.283 The General Assembly’s decisions in relation to the admission of new members are deemed to be ‘important questions’, and therefore must be made by a two-thirds majority of the members present and voting.284 The General Assembly, on the recommendation of the Security Council, may also determine the conditions on which a state that is not a member of the UN may become a party to the Statute of the ICJ.285 2.81  The General Assembly may, upon the recommendation of the Security Council, suspend from the exercise of the rights and privileges of membership a member of the UN against which preventive or enforcement action has been taken by the Security Council.286 The existence of a role for the General Assembly and the Security Council in the suspension process, coupled with the ICJ’s finding on the phrase ‘upon the recommendation of the Security Council’ in the context of Competence of the General Assembly for the Admission of a State to the United Nations,287 make a strong case that the General Assembly should not act unilaterally in suspending a (p. 50) state from the exercise of its rights and privileges, even in relation to that state’s participation in the General Assembly only.288 As such, the General Assembly’s decision not to allow South Africa to participate in the 1974 session of the General Assembly (and subsequently) as a result of its racist policies, was objected to by some states as representing a unilateral action by the General Assembly, suspending a member state’s exercise of its rights and privileges of membership in a manner that did not comport with the UN Charter provisions on the matter.289 2.82  According to Article 19 of the UN Charter, a member state shall have no vote in the General Assembly if the amount of its arrears exceeds or equals the amount of the contributions due from it for the preceding two full years, unless the General Assembly is satisfied that the failure to pay is due to conditions beyond the control of the member. The determination of whether the failure is beyond the control of the member falls to the General Assembly alone and it has often chosen to not impose a suspension of voting on states.290 2.83  The General Assembly is also empowered—again, upon the recommendation of the Security Council—to expel any member of the UN that has persistently violated the principles contained in the UN Charter.291 The General Assembly’s decisions in relation to the suspension or expulsion of member states are deemed to be ‘important questions’, and therefore must be made by a two-thirds majority of the members present and voting.292 The General Assembly has never expelled a member. It has, however, passed resolutions requesting the Security Council to consider expulsion.293 Moreover, certain actions undertaken by the Assembly have been criticized for being tantamount to expulsion.294

(p. 51) 7.2.2  Financial matters 2.84  Among the General Assembly’s most important functions are those of considering and approving the budget of the organization, and assigning a portion to each member state.295 It must also consider and approve any financial and budgetary arrangements with specialized agencies, and examine their administrative budgets with a view to making recommendations on them.296 Decisions on budgetary questions are deemed important, and therefore must be made by a two-thirds majority of the members present and voting.297 The role of the General Assembly in the budget of the organization and the important role of the subsidiary organs—in particular, the Fifth Committee and the Advisory Committee on

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Administrative and Budgetary Questions (ACABQ)—in this regard are discussed elsewhere in this volume.298 2.85  The General Assembly is, moreover, charged with fixing the salaries, allowances, and compensation of the ICJ judges,299 the salary of the ICJ Registrar (on the proposal of the Court),300 the conditions under which retirement pensions may be given to members of the Court and to the ICJ Registrar, and the conditions under which members of the Court and the ICJ Registrar shall have their travelling expenses refunded.301

7.2.3  Oversight of other principal organs 2.86  More than any other organ, the General Assembly is vested with an oversight role in relation to its fellow principal organs. Its ability to influence the actual functioning of its fellow organs varies depending on the particular principal organ. With two of the principal organs—the Trusteeship Council and ECOSOC—the General Assembly has a supervisory role: these principal organs are to discharge many of their obligations under the authority of the General Assembly.302 (p. 52) 2.87  The General Assembly is empowered to discuss any questions or any matters relating to the powers and functions of any organs provided for in the UN Charter and, except as provided in Article 12, may make recommendations to member states, or to the Security Council, or to both on such questions or matters.303 2.88  The General Assembly is also charged with receiving and considering annual and special reports from the Security Council, which shall include an account of the measures that the Security Council has decided upon or taken to maintain international peace and security,304 and reports from the other principal organs of the UN.305 In the past the General Assembly would frequently only ‘take note’ of the reports of the Security Council, without engaging in discussion. However, at its 26th session (1971) the General Assembly sought the views of member states on ways to enhance the effectiveness of the Security Council,306 and drew these to the attention of the Security Council in its subsequent annual session.307 Later, the General Assembly called upon the Security Council to ‘highlight the extent to which resolutions of the General Assembly on issues falling within the scope of the General Assembly and the Security Council have been taken into account by the Council in its decision-making’, and called on the Security Council to strengthen its reporting.308 (p. 53) 2.89  The General Assembly has had a large influence on the functioning of the Secretariat, including the establishment and reform of its administrative structure.309 It is also charged with establishing regulations for the staff of the Secretariat.310 Somewhat controversially, the General Assembly has also had a role in the appointment of the executive heads of certain subordinate organs of the General Assembly, despite the UN Charter’s bestowing the role of appointing Secretariat staff on the Secretary-General.311 2.90  It falls to the General Assembly to determine which organs or specialized agencies of the UN are authorized to request Advisory Opinions from the ICJ.312 2.91  Another of the General Assembly’s roles is to elect or appoint member states or individuals to serve on other principal organs. As already discussed,313 this includes a role electing the non-permanent members of the Security Council and electing members of ECOSOC, as well as, in the past, electing certain members of the Trusteeship Council. In addition, along with the Security Council, the General Assembly is charged with electing of members of the ICJ and the appointment of the Secretary-General.314

7.2.4  Other oversight matters 2.92  The General Assembly has oversight functions relating to the amendment of the UN Charter315 and the amendment of the Statute of the ICJ.316 The General Assembly may make recommendations with a view to determining the details of the applica(p. 54) tion of

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provisions relating to privileges and immunities of the organization and the representatives of its member states.317

7.3  Functions relating to the purposes of the United Nations 2.93  In addition to the organization-related role already discussed, the General Assembly has an important role in achieving the purposes of the UN as set out in Article 1 of its Charter.318 The Charter provides the General Assembly with a role in relation to these purposes, and bestows upon it the following means to achieve these ends: (i) considering and discussing;319 (ii) initiating studies;320 (iii) calling situations to the attention of the Security Council;321 and (iv) making recommendations.322 While not specifically provided for in the Charter, it is accepted that the General Assembly is also able to investigate,323 and to receive and examine reports in aid of its work.324

(p. 55) 7.3.1  Maintenance of international peace and security 2.94  The General Assembly’s role in this regard includes—but is not limited to325— considering and making recommendations regarding the general principles of cooperation in the maintenance of international peace and security (including principles governing disarmament and the regulation of weapons);326 discussing and making recommendations regarding any questions in relation to international peace and security brought before it by a member state,327 or, in certain conditions, a non-member state;328 and calling the attention of the Security Council to situations likely to endanger international peace and security.329 In addition, the General Assembly is vested with the authority to make recommendations for the peaceful settlement of a dispute.330

7.3.2  Developing friendly relations and strengthening international peace 2.95  The General Assembly, by its very nature as a deliberative body, facilitates the development of friendly relations. The interaction and discussion among virtually all states in the world that takes place in the General Assembly Plenary and its committees of the whole are well described as ‘diplomacy writ large’.331 Of course, the powers bestowed upon the General Assembly as regards this function overlap considerably with its powers as regards international peace and security and international cooperation.

7.3.3  Achieving international cooperation 2.96  The UN Charter bestows upon the General Assembly the power to initiate studies and make recommendations to encourage the progressive development of international law and its codification,332 and to promote international cooperation in the following fields: political,333 economic,334 social,335 cultural,336 educational,337 and health.338 Related to this are the further responsibilities, functions, and powers of the (p. 56) General Assembly with regard to the matters of international economic and social cooperation as discussed in Chapters IX and X of the Charter.339 Another important aspect of its international cooperation function is its power to initiate studies and make recommendations to assist in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.340

7.3.4  Harmonization 2.97  The General Assembly, through the various functions already outlined in relation to the other three purposes, serves as a centre for harmonization. Perhaps one of the most significant ways in which it fulfils this last purpose is through the creation of intergovernmental bodies and programmes. The resolution that established UNCTAD, for example, emphasized important common goals in international trade and development, such as the need to eliminate obstacles, restrictions, and discriminatory practices in world trade, and the promotion of higher rates of economic growth throughout the world.341 Similarly, the resolution that established UNEP speaks of the need for prompt and effective implementation of measures intended to safeguard and enhance the environment, and

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assigns to the Governing Council of the Programme responsibility for promoting international cooperation in the field of the environment.342 In this way, the Assembly ‘has become a center (or perhaps better stated, created a series of centers) designed to harmonize the actions of nations toward the attainment of common ends’.343

8.  Limitations on the functioning of the General Assembly 8.1  Article 2(7) 2.98  From the General Assembly’s very first session,344 an argument has been raised by some states that the limitation contained at Article 2(7), to the effect that the UN may not intervene ‘in matters which are essentially within the domestic jurisdiction of any state’ precludes the General Assembly’s discussion of certain matters, in particular, those relating to human rights or decolonization. However, the argument has been generally rejected by the General Assembly when it is dealing with the implementation of the principles of the organization.345 While in some cases, over the years, (p. 57) the General Assembly has decided not to address a matter on the basis of Article 2(7), this has been quite exceptional.346 Nolte takes the view that ‘such exceptional cases are better explained by the existence of specific political alliances at the time than by a principled legal assessment’.347

8.2  Article 12(1) 2.99  Article 12(1) of the UN Charter provides that the General Assembly is precluded from making any recommendation with regard to a dispute or situation348 while the Security Council is exercising its functions (absent a request by the Security Council for it to do so).349 Initially, both the General Assembly and the Security Council interpreted Article 12 to the effect that the General Assembly could not make a recommendation on any question concerning the maintenance of international peace and security while the matter remained on the Security Council’s agenda.350 However, this interpretation evolved, such that by the early 1960s, the General Assembly deemed itself entitled to adopt recommendations on matters, despite their still appearing on the Security Council’s agenda351 and despite the fact that the Security Council ‘could reasonably be regarded as exercising its functions’ in regard to them.352 With none of these matters did a member state object to the recommendation on the ground of Article 12.353 (p. 58) 2.100  A statement made by the Legal Counsel at a meeting of the General Assembly’s Third Committee in 1968 set forth the view that while Article 12, ‘in principle’, meant that the General Assembly could not make any recommendations on an issue that was before the Security Council, in practice ‘there were no obstacles to the recommending of measures’.354 It observed that the General Assembly interpreted the words ‘is exercising’ as meaning ‘is exercising at this moment’.355 The ICJ has observed that there has been an increasing tendency over time for the General Assembly and the Security Council to deal in parallel with the same matter concerning the maintenance of international peace and security (see, for example, the matters involving Cyprus, South Africa, Angola, southern Rhodesia and more recently Bosnia and Herzegovina and Somalia).356 This ‘accepted practice’ of the General Assembly357 has been held by the Court to be ‘consistent with Article 12, paragraph 1 of the Charter’.358 As a result, the impact of the limitation in Article 12(1) of the UN Charter would appear to be negligible. 2.101  Even before the text of Article 12(1) had been given a narrow construction through the practice of the General Assembly as described, the General Assembly had, in certain circumstances, denuded the limitation of much of its effect. In 1950, in the face of a series of vetoes exercised by the Soviet Union in relation to a Security Council-authorized military enforcement action in the Korean Peninsula, the General Assembly passed Resolution 377

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(V), known as the ‘Uniting for Peace’ Resolution.359 Many Western states considered that the frequent use of the veto by the USSR in the early years of the UN was an abuse of power, and ‘wanted an alternative form of protective security, based not on permanent member agreement in the Security Council but on (p. 59) the basis on the will of the majority in the Assembly’.360 The Resolution provides that where, because of lack of unanimity of its permanent members, the Security Council fails to exercise its primary responsibility for the maintenance of international peace and security, the General Assembly shall give immediate consideration (through the convening of a emergency special session of the General Assembly, if necessary361) to any case where there appears to be a threat to the peace, breach of the peace, or act of aggression.362 The General Assembly shall act with a view to making appropriate recommendations to members for collective measures, including, in the case of a breach of the peace or act of aggression—though not (expressly, at any rate) in the lesser case of a threat to the peace363—the use of armed force when necessary to maintain or restore international peace and security.364 2.102  The issue of the legality of the Uniting for Peace Resolution was fiercely contested at the time, in particular by the Soviet Bloc.365 While a determination by the Security Council that an emergency special session should be called under General Assembly Resolution 377 (V) (1950) would not appear to be contrary to the provision of Article 12(1) of the UN Charter—Article 12(1) makes provision for the Security Council to suspend the prohibition by requesting the General Assembly to act366—a determination by a majority of the General Assembly that a matter should be transferred to it under the Uniting for Peace Resolution would have no similar basis, and was thought by some to be a usurpation of the Security Council’s primary role as regards peace and security.367 The alternative view is said to be that where a permanent member is exercising a veto, it is preventing the Security Council from taking a (p. 60) decision; therefore, the Security Council is not ‘exercising…the functions assigned to it’ within the meaning of Article 12(1) and the General Assembly is not barred from making recommendations.368 Given the preceding discussion and the fact that the effect of Article 12(1) is now so limited as to make the provision almost obsolete, it would not appear necessary to take a view on this issue.369 2.103  In the Certain Expenses case, the legality of UNEF I, a peacekeeping operation established by the General Assembly pursuant to the Uniting for Peace Resolution (after a veto in the Security Council, led to the Suez situation being transferred to the General Assembly) was considered by the ICJ.370 While the Court did not pronounce on the lawfulness of the Uniting for Peace Resolution,371 it did not find it to be illegal, despite being requested to do so.372 The Court’s decision not to address the legality of the procedure under the Uniting for Peace Resolution may signal a disagreement among the members of the Court in this regard. The fact that the USSR, perhaps the main adherent to the view that the Uniting for Peace procedure was contrary to the Charter, voted in favour of a resolution calling for an emergency special session pursuant to the (p. 61) Uniting for Peace Resolution in 1956, would appear to indicate that the USSR overcame its misgivings as regards the legality of the resolution. There has been relatively little challenge to the legality of the Uniting for Peace procedure since then and, in 2004, the ICJ appeared to approve of it in the Construction of a Wall case.373 2.104  The General Assembly has met in emergency special session 10 times,374 including its first such session in 1956, wherein it established the first United Nations Emergency Force (UNEF I), and its fourth such session in 1960, in which it adjusted the mandate of the United Nations Operation in the Congo (ONUC). The most recent Emergency Special Session, the tenth, dates back to 1997.375 Greenpeace International and other non-

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governmental organizations (NGOs) repeatedly called on the General Assembly to invoke the Uniting for Peace Resolution during the US invasion in Iraq in 2003.376

8.3  Article 11(2) 2.105  A second possible limitation on the General Assembly’s power to recommend arises from Article 11(2) of the UN Charter, which requires the General Assembly to refer any questions relating to the maintenance of international peace and security377 to the Security Council, either before or after discussion, when ‘action is necessary’.378 The scope of this limitation would appear to be quite narrow, given the ICJ’s determination that the kind of ‘action’ referred to in Article 11(2) is ‘coercive or enforcement action’.379

Footnotes: 1

  Magiera, ‘Article 9’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 445, at 446, para 1. 2

  Baehr and Gordenker, The United Nations in the 1990s (1992), 51.

3

  For example, while there were only four African members in 1945, that continent’s members now represent over one-quarter of the members of the General Assembly. 4

  There are 107 member states in the African and Asian-Pacific groupings of the General Assembly; if those states were to vote en bloc, they would represent a majority and would be only 22 votes shy of a qualified majority. Art 18 of the UN Charter provides that decisions of the General Assembly other than on important questions are to be made by a majority of those present and voting, and decisions on important questions are to be made by a two-thirds majority of the members present and voting. Voting in the General Assembly is discussed further in section 5, and in ch 10, ‘Voting’, section 2, ‘General Assembly’. 5

  In its discussion of an agenda item on the revitalization of the General Assembly at its 61st session (2006), the representative of Cuba spoke of her opposition to the ‘usurpation’ of the General Assembly’s functions and powers by the Security Council. The representatives of Pakistan, Yemen, and Brazil all characterized the Security Council as encroaching on the mandate of the General Assembly. The representative of Pakistan spoke of the need to ‘reverse the Security Council’s encroachment on the Assembly’s role in the maintenance of international peace and security’ (UN Doc GA/10555 (2006), available at http://www.un.org/News/Press/docs/2006/ga10555.doc.htm). A report by an Ad Hoc Working Group of the General Assembly observed that ‘balance among the principal organs, in particular with the Security Council, in the light of what many perceived as encroachment on the work of the General Assembly, was an important point that needed to be addressed’ (UN Doc A/65/909, 1 August 2011, para 16). See also n 12. 6

  See, eg, GA Res 46/77 (1991); GA Res 47/233 (1993); GA Res 48/264 (1994); GA Res 51/193 (1997); GA Res 55/285 (2001); GA Res 56/509 (2002); GA Res 57/301 (2003); GA 58/126 (2003); GA Res 58/316 (2004); GA Res 59/313 (2005); GA Res 60/286 (2006); GA 61/292 (2007); GA Res 62/276 (2008); GA Res 63/309 (2009); GA Res 64/301 (2010); GA 65/315 (2011); GA Res 66/294 (2012); GA Res 67/297 (2013); GA Res 68/307 (2014); GA 69/321 (2015); and GA Res 70/305 (2016). 7

  GA Res 59/313 (2005), para 4. See http://www.un.org/en/ga/revitalization/.

8

  See, eg, GA Res 60/286 (2006), para 15.

9

  GA Res 59/313 (2005), para 3; GA Res 69/321 (2015), para 12; GA Res 70/305 (2016), para 12.

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Res Res Res Res

10

  UN Doc A/64/903, 8 September 2010, para 5. For example, in 2005 it decided to discuss issues pertaining to the maintenance of international peace and security, and to invite the Security Council to submit periodic, special subject-orientated reports on issues of current international concern and to update it on a regular basis on the steps it has taken or is contemplating with respect to improving its reporting to the Assembly (GA Res 59/313 (2005), para 3). See also GA Res 69/321 (2015), para 6; GA Res 70/305 (2016), para 6. 11

  For example, the Working Group’s report in 2010 made reference to ‘relations between the principal organs of the United Nations (particularly between the General Assembly and the Security Council)’ (UN Doc A/64/903, 8 September 2010, para 11). See also the most recent report of the Working Group, UN Doc A/70/1003, 2 August 2016, para 15. 12

  UN Doc A/64/903, 8 September 2010, para 14. See also n 5. Another concern of the Working Group is that the General Assembly had been ‘sidelined’ in relation to the process of the selection of the Secretary-General (ibid, paras 40–6). Yet other concerns included strengthening of the role of the President of the General Assembly (ibid, paras 14–15) and the improvement of working methods, including ‘enhancing public and media awareness of the work and decisions of the General Assembly’ (ibid, para 15). See also the most recent report of the Working Group, UN Doc A/70/1003, 2 August 2016, paras 21 et seq for a discussion of the need to reform the working methods of the General Assembly and paras 48 et seq for a discussion of the strengthening of the President of the General Assembly’s institutional role within the organization. 13

  UN Charter, Art 9(1).

14

  Note by the Secretariat, ‘List of non-Member States, entities and organizations having received a standing invitation to participate as observers in the sessions and the work of the General Assembly’ (UN Doc A/INF/71/5, 12 January 2017). 15

  UN Charter, Art 9(2), and GA ‘Rules of Procedure of the General Assembly (embodying amendments and additions adopted by the General Assembly up to September 2007)’ UN Doc A/520/Rev.17, April 2008 (hereinafter referred to as ‘GA Rule’ followed by the Rule number), Rule 25. 16

  Magiera, n 1, 451, para 10.

17

  UN RP (1945–51) vol I, Art 9, p 247, para 12.

18

  In 2004, delegations ranged in size from Turkmenistan’s three members, to Germany’s 121 members (Peterson, The UN General Assembly (2006), 42). 19

  GA Res 1798 (XVII) (1962), as amended by GA Res 2128 (XX) (1965), 2245 (XXI) (1966), 2489 (XXIII) (1968), 2491 (XXIII) (1986), 41/176 (1986), 41/213 (1086), 42/214 (1987), s VI of 42/225 (1987), s IX of 43/217 (1987) and s XIII of 45/248 (1990). Committee for Development Policy and United Nations Department of Economic and Social Affairs, Handbook on the Least Developed Country Category: Inclusion, Graduation and Special Support Measures (2nd edn, 2015), at 36, available at https://www.un.org/development/ desa/dpad/wp-content/uploads/sites/45/publication/2015cdphandbook.pdf: ‘The United Nations pays the travel (but not subsistence expenses) for [Least Developed Countries’ (LDCs’)] participation in the General Assembly as follows: (a) up to five representatives per LDC attending a regular session of the General Assembly; (b) one representative per LDC attending a special or emergency session of the General Assembly; and (c) one member of a permanent mission in New York designated as a representative or alternate to a session of the General Assembly.’ 20

  GA Rule 25.

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21

  GA Rule 101. For a discussion of General Assembly Committees, see sections 4.2, ‘General Committee’ and 4.3, ‘Main Committees’, and ch 6, ‘Subsidiary Organs’, section 9, ‘Subsidiary organs of the General Assembly’. 22

  GA Rule 101.

23

  Magiera, n 1, 452, para 11.

24

  UN Charter, Art 21.

25

  UN Doc A/520/Rev.17, April 2008. The Rules of Procedure have been amended numerous times over the years. 26

  UN RP (1945–54), vol I, Art 21, p 626, paras 9 et seq.

27

  See, eg, UN RP Supp no 9 (1995–99), vol II, Art 21, pp 2–5.

28

  Fitschen, ‘Article 21’ in Simma et al (eds), n 1, 687, at 692, para 7. See Kappelmann, Die Geschäfstordnung internationaler Organisationen (1956) on the origins of the rules of procedure. 29

  UN Charter, Art 20.

30

  GA Res 377 (V) (1950) (see discussion of the ‘Uniting for Peace’ Resolution in sections 3.4, ‘Emergency special sessions’ and 8.2, ‘Article 12(1)’). 31

  It met at the Head of State of Government level on 6–8 September 2000 and adopted the United Nations Millennium Summit Document GA Res 55/2 (2000). It also met at that level on 14–16 September 2005 and adopted the World Summit Outcome Document (GA Res 60/1 (2005)). 32

  For discussion of the travaux préparatoires on this point, see Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (1950), 178. 33

  GA Rule 60.

34

  GA Rule 61.

35

  ibid.

36

  GA Rule 141.

37

  General Assembly, ‘Organization of the sixty-fifth regular session of the General Assembly, adoption of the agenda and allocation of items: First report of the General Committee’ (UN Doc A/65/250, 17 September 2009, para 12). 38

  In addition to the meetings inscribed in the official calendar of conferences, the Meetings Management Section processes some 10,000 requests for services. See at http:// www.un.org/depts/DGACM/mms.shtml. 39

  After 16 months of renovations, the use of the General Assembly Hall resumed in September 2014 with the 69th General Assembly. 40

  The 1st session of the General Assembly was held in London. It will normally meet at UN Headquarters in New York, unless convened elsewhere in pursuance of a decision taken at a previous session or at the request of a majority of the members (GA Rule 3). See also GA Rule 4 regarding requests to convene meetings outside Headquarters. 41

  In para 1 of GA Res 57/301 (2003), the General Assembly amended GA Rule 1 to read: ‘The General Assembly shall meet every year in regular session commencing on the Tuesday of the third week in September, counting from the first week that contains at least one working day.’

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42

  GA Rule 2 provides that the General Assembly shall, on the recommendation of the General Committee, fix a closing date each year. GA Rule 41 provides that the General Committee shall make recommendations to the General Assembly regarding a suitable closing date. 43

  Peterson, ‘General Assembly’ in The Oxford Handbook on the United Nations (eds Daws and Weiss, 2008), 97, at 99. The General Assembly will elect a President and 21 VicePresidents at least three months before the opening of the session over which they are to preside (GA Res 56/509 (2002)). 44

  The General Assembly’s 70th session closed on the morning of 13 September 2016, while the 71st session began on the afternoon of the same day, and has been proposed to close on 12 September 2017 (see UN Doc A/BUR/71/1, 13 September 2016, para 16). 45

  Marin-Bosch, Votes in the UN General Assembly (1998), 13.

46

  UN Charter, Art 21.

47

  See Eick, who observes that emergency special sessions have at times been ‘resumed’ or ‘reconvened’ while the regular session was in progress (Eick, ‘Article 20’ in Simma et al (eds), n 1, 657, at 672, para 49). He notes the ICJ’s view that ‘while it may not have been originally contemplated that it would be appropriate for the General Assembly to hold simultaneous emergency and regular sessions, no rule of the Organization has been identified which would be thereby violated’ (relying on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory ICJ Rep 2004, p 152). Eick notes that this reasoning could be applied to the convening of a new emergency special session (above, Eick, 672, para 49). 48

  Peterson, n 43, 99.

49

  UN Charter, Art 20. The text of GA Rule 8(a) only speaks of a ‘request…from the Security Council’; this may be contrasted with GA Rule 8(b), which deals with the convening of an emergency special session and requires a ‘request…from the Security Council, on the vote of any nine members thereof’ (emphasis added). While this may to suggest to some that a vote of nine members is not required for the convening of a special session, as Eick rightly argues, Art 27(2) of the UN Charter, which requires a majority of nine members for votes on procedural matters, must be taken as authoritative on the matter. See Eick, n 47, 666, para 29. 50

  GA Rules 8 and 9. In practice, no request for a special session has ever been formulated and signed by a majority of member states. See Eick, n 47, 668, para 34. Instead, member states who want to see a special session convened will notify the Secretary-General in accordance with GA Rule 9. The Secretary-General will then notify the other member states and, if a majority agrees within 30 days, the special session will be convened. 51

  The General Assembly has held special sessions on the following topics: 30th Special Session, ‘World Drug Problem’, 19–21 April 2016; 29th Special Session, ‘Follow-up to the Programme of Action of the International Conference on Population and Development beyond 2014’, 22 September 2014; 28th Special Session, ‘Commemoration of the sixtieth anniversary of the liberation of the Nazi concentration camps’, 24 January 2005; 27th Special Session, ‘World Summit for Children’, 8–10 May 2002; 26th Special Session, ‘Problem of human immunodeficiency virus/acquired immunodeficiency syndrome (HIV/ AIDS) in all its aspects’, 25–27 June 2001; 25th Special Session, ‘Implementation of the outcome of the UN Conference on Human Settlements (Habitat II)’, 6–8 June 2001; 24th Special Session, ‘Social Development’, 26–30 June 2000; 23rd Special Session, ‘Women 2000: Gender Equality, Development and Peace for the Twenty-First Century’, 5–9 June 2000; 22nd Special Session, ‘Small Island Developing States’, 27–28 September 1999; 21st Special Session, ‘Population and development’, 30 June–2 July 1999; 20th Special Session, ‘World drug problem’, 8–10 June 1998; 19th Special Session, ‘Earth Summit + 5’, 23–27 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

June 1997; 18th Special Session, ‘International economic cooperation’, 23–27 April 1990; 17th Special Session, ‘Drug abuse’, 20–23 February 1990; 16th Special Session, ‘Apartheid’, 12–14 December 1989; 15th Special Session, ‘Disarmament’, 31 May–25 June 1988; 14th Special Session, ‘Namibia’, 17–20 September 1986; 13th Special Session, ‘Africa’, 27 May–1 June 1986; 12th Special Session, ‘Disarmament’, 7 June–10 July 1982; 11th Special Session, ‘New international economic order’, 25 August–15 September 1980; 10th Special Session, Disarmament, 23 May–30 June 1978; 9th Special Session, Namibia, 24 April–3 May 1978; 8th Special Session, ‘Financing of the UN Interim Force in Lebanon’, 20–21 April 1978; 7th Special Session, ‘Development and international economic cooperation’, 1–16 September 1975; 6th Special Session, ‘Raw materials and development’, 9 April–2 May 1974; 5th Special Session ‘South West Africa (Namibia)’, 21 April–13 June 1967; 4th Special Session, ‘Financial situation of the UN’, 14 May–27 June 1963; 3rd Special Session, ‘Tunisia’, 21–25 August 1961; 2nd Special Session, ‘Palestine’, 16 April–14 May 1948; 1st Special Session, ‘Palestine’, 28 April–15 May 1947. 52

  The 1st special session was convened at the request of the UK, the 3rd at the request of 47 member states, and the 6th at the request of Algeria. In each case the necessary majority of member states was obtained. 53

  For example, the 6th Emergency Special Session, which led to the proposals known as the New International Economic Order, put forward by a number of developing nations to advance their interests (GA Res 3201 (S-VI) (1974) and GA Res 3202 (S-VI) (1974)). 54

  Eick, n 47, 664–5, para 25.

55

  United Nations News Centre, ‘General Assembly marks 60th anniversary of liberation of Nazi death camps’, 24 January 2005, available at http://www.un.org/press/en/2005/ ga10330.doc.htm. 56

  See at http://www.un.org/ha/chernobyl/20anniversary/.

57

  For a discussion of the ‘Uniting for Peace’ procedure, see section 8.2, ‘Article 12(1)’.

58

  GA Rule 8(b). GA Rule 9(b) provides that any member of the UN may request the Secretary-General to convene an emergency special session: ‘In such a case, the SecretaryGeneral shall communicate with the other Members by the most expeditious means of communication available.’ 59

  November 1956 (Middle East); November 1956 (Hungary); August 1958 (Middle East); September 1960 (Congo); June 1967 (Middle East); January 1980 (Afghanistan); July 1980/ April–September 1982 (Palestine); September 1981 (Namibia); January/February 1982 (Middle East); April 1997–time of writing (Middle East). The most recent emergency special session, the 10th, dates back to 1997, when Israel began construction of a new settlement south of East Jerusalem. After the Security failed to adopt resolutions on this issue, the emergency special session was convened in April, and again in July and November of 1997. It resumed in 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2006, and 2009 and has been adjourned temporarily. 60

  The Security Council convened the 1st, 2nd, 3rd, 4th, 6th, and 9th emergency special sessions. 61

  States initiated the convening of the 5th (USSR), 7th (Senegal), 8th (Zimbabwe), and 10th (Qatar) emergency special sessions. 62

  See ch 6, ‘Subsidiary Organs’, section 9, ‘Subsidiary organs of the General Assembly’.

63

  GA Rule 65.

64

  GA Rule 66.

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65

  Peterson, n 18, 58.

66

  Or, whether the item should be rejected from the agenda, or included in the provisional agenda of a future session. GA Rule 40. 67

  GA Rule 40.

68

  Peterson, n 18, 58.

69

  ibid.

70

  There were seven, until 1993, when the Fourth Committee was merged with the Seventh Committee: the Special Political Committee. 71

  Peterson, n 18, 59.

72

  GA Rule 101. A formally established subcommittee must observe certain rules with regard to its structure and composition, including the election of a Chair, one or more VicePresidents, and a Rapporteur. 73

  Peterson, n 18, 59.

74

  For a list of meetings see the Journal of the United Nations, which is published by the Department for General Assembly and Conference Management during the main session of the General Assembly (September–December), available at http://www.un.org/en/ documents/journal.asp. 75

  UN Charter Art 18(1) and GA Rule 82. See ch 10, ‘Voting’, section 2, ‘General Assembly’.

76

  According to Art 18(2) of the UN Charter and GA Rule 83, important questions shall include the following: recommendations with respect to the maintenance of international peace and security, the election of the non-permanent members of the Security Council, the election of the members of the Economic and Social Council (ECOSOC), the election of members of the Trusteeship Council, the admission of new members to the UN, the suspension of the rights and privileges of membership, the expulsion of members, questions relating to the operation of the trusteeship system, and budgetary questions. Art 18(3) of the UN Charter provides that a majority of the members present and voting may determine additional categories of questions to be decided by a two-thirds majority. For a list of additional questions requiring a two-thirds majority according to the Rules of Procedure of the General Assembly, see Wolfrum, ‘Article 18’ in Simma et al (eds), n 1, 621, at 626, para 14. 77

  GA Rule 84.

78

  UN Charter, Art 18(2) and GA Rule 85. ‘Voting’ as used in the phrase ‘present and voting’ means casting an affirmative or negative vote; it does not include an abstention (GA Rule 86). 79

  UN Charter, Art 18(3) and GA Rule 85.

80

  See UN RP (1945–54) vol I, Art 18, pp 568–9, paras 17–18, referring to the SecretaryGeneral’s study (UN Doc A/1356, 11 September 1950, paras 22–4). 81

  The UN Secretariat offers the following explanation of when a matter is addressed through a General Assembly ‘decision’ rather than a ‘resolution’: ‘The term “decision” is used to designate formal actions, other than resolutions, dealing with non-substantive or routine matters such as elections, appointments, the time and place of meetings and the taking note of reports. They are sometimes also used to record the adoption of a text representing the consensus of the members of a given organ on a question’ (see at http:// www.un.org/esa/documents/gamaindec.htm).

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82

  The following description of the numbering system of General Assembly resolutions may be of assistance and is followed in this volume: ‘Until the thirtieth regular session, the resolutions of the General Assembly were identified by an arabic numeral followed by a roman numeral in parentheses indicating the session (for example: resolution 3363 (XXX)). When several resolutions were adopted under the same number, each of them was identified by a capital letter placed between the two numerals (for example: resolution 3367 A (XXX), resolutions 3411 A and B (XXX), resolutions 3419 A to D (XXX)). The decisions were not numbered. Since the thirty-first session, as part of the new system adopted for symbols of General Assembly documents, resolutions and decisions have been identified by an arabic numeral, indicating the session, followed by an oblique stroke and another arabic numeral (for example: resolution 31/1, decision 31/301). When several resolutions or decisions were adopted under the same number, each of them has been identified by a capital letter placed after the two numerals (for example: resolution 31/16 A, resolutions 31/6 A and B, decisions. 31/406 A to E).’ 83

  The number of offices or seats that need to be filled annually will vary depending on the length of term, whether an office-holder has resigned before his/her term expires, etc. For example, in its 70th session (2015–16), the General Assembly made the following elections or appointments: election of 18 members of the Human Rights Council, 18 members of the Economic and Social Council, 5 non-permanent members of the Security Council (see http:// www.un.org/en/ga/70/meetings/elections/), while in its 71st session (2016–17) the General Assembly has so far elected 14 members of the Human Rights Council and will appoint five members of the Joint Inspection Unit to fill the vacancies that will arise from the expiration of the current terms of office of five Inspectors (see http://www.un.org/en/ga/71/meetings/ elections/). On the recommendation of its Fifth Committee (Administrative and Budgetary), it has also already filled more than 25 vacancies on subsidiary organs, including appointing members of the Advisory Committee on Administrative and Budgetary Questions (ACABQ), the Committee on Contributions, the Investments Committee and the International Civil Service Commission (see among others http://www.un.org/press/en/2016/ga11856.doc.htm; https://www.un.org/press/en/2017/ga11893.doc.htm; https://www.un.org/press/en/2017/ ga11913.doc.htm; http://www.un.org/press/en/2016/ga11859.doc.htm). 84

  GA Rule 92.

85

  Wolfrum cites the practice of dispensing with the secret ballot for elections to subsidiary organs when the number of candidates corresponds to the number of seats to be filled (Wolfrum, n 76, 627, para 15). The Rules of Procedure provide that this practice should become standard, and that the same practice should apply to the election of the President and Vice-Presidents of the General Assembly, unless a delegation specifically requests a vote on a given election (UN Doc A/520/Rev.17, April 2008, p 84, para 16). 86

  GA Rule 92.

87

  Peterson describes the emergence as early as 1945–6 of a loosely geographic system adopted by the General Assembly dividing member states into five groups: British Commonwealth (five states), Asia and the Mideast (eight), Latin America (twenty), Eastern Europe (five), and Western Europe (six). These groupings, ‘plus a separate category of “permanent members of the Security Council” established to respect the understanding that all five would be included among the Assembly vice presidents and on other bodies, were used in other assembly elections’ (Peterson, n 18, 44). Marin-Bosch describes a ‘freefor-all approach’, with each nation seeking the support necessary to ensure the success of its candidacy (Marin-Bosch, n 45, 15).In 1948, the General Assembly passed a resolution recommending equitable geographical distribution in relation to functional commissions and other subsidiary bodies of ECOSOC. See GA Res 207 (III) (1948). The resolution did not set out any particular distribution. By 1957, a practice had developed whereby the chairs on the (then seven) Main Committees of the General Assembly were distributed such that two

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were from Latin American states, two from African and Asian States, two from Western European and other states, and one from an Eastern European state. This practice was confirmed in GA Res 1192 (XII) (1957). 88

  GA Res 1192 (XII) (1957).

89

  GA Res 1192 (XII) (1957), Annex.

90

  By GA Res 1900 (XVIII) (1963).

91

  GA Res 1990 (XVIII) (1963), Annex.

92

  GA Res 33/138 (1978), Annex.

93

  ibid.

94

  ibid. ‘The election of the President of the General Assembly will, however, have the effect of reducing by one the number of vice-presidencies allocated to the region from which the President is elected.’ (ibid). 95

  ibid.

96

  See at http://www.un.org/depts/DGACM/RegionalGroups.shtml.

97

  Baehr and Gordenker, n 2, 53. See, eg, UN Doc A/59/PV.32, 15 October 2004, p 2.

98

  Baehr and Gordenker, n 97, 53.

99

  ibid. Chairs of the Main Committees, along with the permanent members of the Security Council, constitute the important General Committee (ibid). 100

  Thus, they have no official status (Baehr and Gordenker, n 97, 52).

101

  [2003] UN Juridical YB 529.

102

  ibid.

103

  See at http://www.un.org/depts/DGACM/RegionalGroups.shtml.

104

  For many years South Africa was excluded from the Afro-Asian (and later the African) Group due to its apartheid policies. In 1994, a post-apartheid South Africa joined the African Group. See Marin-Bosch, n 45, 16. 105

  Some have noted that Cyprus could equally be a member of WEOG.

106

  According to the UN Department for General Assembly and Conference Management, at http://www.un.org/depts/DGACM/RegionalGroups.shtml: ‘As of 2010, Kiribati (geographically in Oceania) is not a member of any regional group, despite the other Oceania nations belonging to the Asian group. Despite its membership in the United Nations, Kiribati has never delegated a permanent representative to the UN.’ 107

  See n 111.

108

  What was originally known as the ‘Latin American Group’ became known in 1994 as the ‘Latin American or Caribbean States’ (sometimes known as ‘GRULAC’). See GA Res 48/264 (1994), annex 2. 109

  For many years, the Latin American group excluded Fidel Castro’s Cuba. See Baehr and Gordenker, n 97, 53). 110

  For many years Israel was not a member of any regional group, a fact that was publicly lamented by the Secretary-General in 1999. See UN Doc SG/SM/6990: ‘On 14 June 2000, the Secretary-General was informed by the then Chairman of the WEOG that that [Member State] is now a member of the WEOG and will, therefore, be a participant in all the meetings of the WEOG at Headquarters.’ While the legal opinion does not refer to Israel by name—instead referring to ‘Member State’—it is clear that it was Israel of which he was speaking. The opinion notes that the ‘Member State’ in question had never been invited to join any regional group between 1957 and 2000, and that this had been a matter of growing From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

criticism within and outside of the organization. The legal opinion declines to comment on the conditions under which Israel was invited to join WEOG, noting that discussions within regional groups are conducted in private (see [2003] UN Juridical YB 529). According to the UN Department for General Assembly and Conference Management (at http://www.un.org/ depts/DGACM/RegionalGroups.shtml): ‘In May 2000 Israel became a WEOG full member, on a temporary basis (subject to renewal), in WEOG’s headquarters in the US, thereby enabling it to put forward candidates for election to various UN General Assembly bodies. In 2004 Israel obtained a permanent renewal to its membership.’ 111

  Turkey participates both in the Asian group and WEOG, but for electoral purposes it is considered a member of WEOG (at http://www.un.org/depts/DGACM/ RegionalGroups.shtml), and when it sits as a non-permanent member of the Security Council (it has done so most recently in 2009–10), it takes a place earmarked for WEOG (see Baehr and Gordenker, n 97, p 93). 112

  See at http://www.un.org/depts/DGACM/RegionalGroups.shtml.

113

  Baehr and Gordenker describe the US as ‘[u]sually aloof’, but note that it will sometimes associate with the West Europeans (Baehr and Gordenker, n 97, 53). 114

  Article 21.

115

  GA Rule 30.

116

  GA Rule 92. In 1977, a dispute arose as to whether Art 19 of the Charter (which provides that the General Assembly may deny a vote to a member that is ‘in arrears in the payment of its financial contribution to the Organization … if the amount of its arrears equals or exceeds the amount of the contributions due from the preceding full years’) should be applied to Democratic Kampuchea, which was in financial arrears at the opening of the session. The General Assembly decided to depart from GA Rule 92 and elect the President by acclamation, thereby avoiding the dispute (UN RP (1970–78) vol I, Art 19, p 220, para 11). 117

  GA Res 56/509 (2002).

118

  Peterson, n 43, 99.

119

  GA Res 1192 (XII) (1957).

120

  GA Res 1900 (XVIII) (1963).

121

  GA Res 33/138 (1978).

122

  Section 5.2.2, ‘Regional distribution’.

123

  GA Res 1990 (XVIII) (1963), Annex; and GA Res 33/138 (1978), Annex.

124

  See the discussion of the six Main Committees at section 4.3, ‘Main Committees’ and in ch 6, ‘Subsidiary Organs’, section 9, ‘Subsidiary organs of the General Assembly’. 125

  See GA Rule 30. The General Committee consists of the President, the Vice-Presidents, and the Chairs of the Main Committees. See section 4.2, ‘General Committee’. 126

  Baehr and Gordenker, n 97, 53.

127

  For a listing of the Presidents of the General Assembly over the years and their nationality, see at http://www.un.org/en/ga/president/index.shtml. 128

  Nor are they categorized as such in the Rules of Procedure (GA Rule 83). In GA Res 14 (I) (1946), a simple majority is explicitly established as sufficient for the appointment of the Secretary-General. The election of ICJ judges continues to be determined by an absolute

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majority, meaning a simple majority of all electors (97 votes in the Assembly) (UN Doc A/ 63 /186–S/502 (2008), para 8). 129

  UN Charter, Art 23(1).

130

  The 2009 election for the two-year term from 2010–12 represented the first since 2004 in which all five countries ran unopposed: United Nations (UN News Centre), ‘Five countries set to run unopposed for non-permanent Security Council seats’, 14 October 2009, available at http://www.un.org/apps/news/story.asp? NewsID=32553&Cr=security+council&Cr1. In 2016, eg, Bolivia was chosen by its regional group to fill the seat reserved for Latin America and the Caribbean, and Ethiopia was chosen to fill the seat reserved for Africa. With no regional competitors, each was duly elected by the General Assembly. See at http://www.un.org/apps/news/story.asp? NewsID=54350#.WHC8S_mLRdg. 131

  GA Res 1991 A (XVIII) (1963), para 3.

132

  Aust, Handbook of International Law (2010), 192: ‘So that there is always an Arab State on the Council, things are so arranged that each year an Arab State is elected to fill, alternately, an Asian or an African seat (unless a North African State is elected).’ 133

  Each member has served at least 10 years on the Security Council. See at https:// www.un.org/en/sc/members/elected.asp. 134

  GA Rule 92.

135

  See, eg, UN Doc A/59/PV.32, 15 October 2004, p 2.

136

  UN Charter, Art 18(2). The voting record for the five unopposed candidates in 2015 (for the 2016–17 seat) was as follows: Egypt (179), Japan (184), Senegal (187), Ukraine (177), and Uruguay (185). See ‘General Assembly Elects Egypt, Japan, Senegal, Ukraine and Uruguay as Non-Permanent Members of Security Council for 2016–2017’ (UN Doc GA/ 11707, 15 October 2015, available at http://www.un.org/press/en/2015/ga11707.doc.htm). 137

  Draft Rules of Procedure of the AU Ministerial Committee on Candidatures within the International System, Doc EX.CL/213 (VIII) adopted by Decision of the AU Executive Council, Doc EX.CL/239 (VIII). 138

  See, eg, UN Doc A/59/PV.32, April 2008, 15 October 2004, p 2.

139

  For example, both Poland and Bosnia and Herzegovina sought to be the nominee for the 2010–11 non-permanent seat on the Security Council representing the Eastern European States group, the election for which was held at the 2009 General Assembly. Reportedly, the Ministers of Foreign Affairs of each country met and, thereafter, Poland withdrew its candidature and gave its support to Bosnia and Herzegovina, and encouraged others to do the same. A subsequent press release by Poland observed that the Government of Bosnia and Herzegovina had pledged to support the candidature of Poland in the future, whenever Poland decides to run. 140

  The WEOG will frequently not put forth a clean slate (Aust, n 132, 192). In the process of electing five non-permanent members to sit from 2011–13, which took place in 2010, the five seats were to be regionally distributed as follows: one seat for the African Group, one seat for the Asian Group, one seat for the Group of Latin American or Caribbean states, and two seats for the WEOG. Each group but the WEOG put forward ‘clean slates’. This was also the case with the election in 2014 for the 2015–16 term, when the WEOG put forward three candidates for two seats: New Zealand, Spain, and Turkey. New Zealand was elected in the first round of voting, and Spain and Turkey were left to vie for the remaining place, with Spain acquiring the required majority to win the seat only in the third round of voting. See ‘General Assembly Elects Angola, Malaysia, Venezuela, New Zealand and Spain as Non-

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Permanent Members of the Security Council for 2015–2016’ (UN Doc GA/11570, 16 October 2014, available at http://www.un.org/press/en/2014/ga11570.doc.htm). 141

  In 2010, eg, three states from the WEOG put forward their candidatures for the two 2011–13 non-permanent seats: Canada, Germany, and Portugal. In the first ballot, Germany received 128 votes, Portugal received 122, and Canada received 114. Because Germany received two-thirds of the votes of the members present and voting, it took one of the two seats. At the next ballot Portugal received 113 votes and Canada 78. At this stage Canada withdrew its candidacy, and on a third ballot, Portugal received the necessary two-thirds votes. See at https://www.un.org/apps/news/story.asp?NewsID=36413. 142

  For example, in 2006, Panama entered the process after over 40 inconclusive rounds of voting. It had been put forward as a consensus candidate and was successfully elected. Security Council Report, Special Research Report, UN Security Elections 2010 (2010, No 3), 17 September 2010, available at http://www.securitycouncilreport.org/special-researchreport/lookup-c-glKWLeMTIsG-b-6238577.php. 143

  GA Rule 93.

144

  United Nations (Department of Public information), ‘Press Conference on Rules of Procedure for Security Council Elections’, 11 October 2010, available at http://www.un.org/ News/briefings/docs/2010/101011_DGACM.doc.htm. 145

  [1979] UN Juridical YB 164. As noted by the Legal Counsel (ibid): ‘In the past the Assembly has resolved difficulties of this nature by resorting to the technique of split terms of memberships. That was the case in 1956–1957 with Yugoslavia and the Philippines, in 1960–1961 with Poland and Turkey, in 1961–1962 with Liberia and Ireland, in 1962–1963 with Romania and the Philippines, and in 1964–1965 with Czechoslovakia and Malaysia. It should, however, be noted that no split terms of membership have occurred since the enlargement of the Security Council in 1965 from 11 to 15 members.’ 146

  ibid.

147

  [1979] UN Juridical YB 166.

148

  United Nations (Department of Public information), n 144.

149

  Art 3(1), ICJ Statute.

150

  See Art 13(1), ICJ Statute. Judges are elected for nine-year renewable terms. Where the death or retirement of a judge requires his/her replacement, an ‘occasional election’ is held. 151

  Currently, 121 states have acceded to one or both of the PCA’s founding conventions (https://pca-cpa.org/en/about/introduction/member-states/). Each member state may nominate up to four members of the PCA, and members of the Court from each member state constitute a ‘national group’. Members of the UN who are not members of the PCA may nominate candidates for the ICJ by national groups appointed for this purpose by their governments, under the same conditions as the PCA national groups (Art 4(2), ICJ Statute). No national group may elect more than four candidates, not more than two of whom shall be of their own nationality (Art 5(2), ICJ Statute). 152

  Art 4(1), ICJ Statute. This is the only international court with this procedure. See also ch 29, ‘The International Court of Justice’, section 2, ‘The Bench’. 153

  Art 9, ICJ Statute.

154

  Shaw, Rosenne’s Law and Practice of the International Court, 1920–2015, I: The Court and the United Nations (2016), 369. From 1967–85 there was no member of the Court of Chinese nationality, but there was a sense that the seat was reserved for the country if it wished to propose a candidate (ibid, fn 20). See also the website of the ICJ at http://www.icjcij.org/court/index.php?p1=1&p2=2, which notes that ‘Although there is no entitlement to

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membership on the part of any country, the Court has always included judges of the nationality of the permanent members of the Security Council.’ 155

  Art 3(1), ICJ Statute.

156

  This is elaborated upon by the Secretary-General’s report (UN Doc A/63/186–S/ 2008/502, 30 July 2008, para 11), which observes: ‘At the 915th plenary meeting of the General Assembly, on 16 November 1960, a procedural discussion was held as to whether rule 94 (then rule 96) of the rules of procedure of the Assembly should be applied in elections to the International Court of Justice. That rule lays down a procedure for restricted ballots in the event that, after the first ballot, the requisite number of candidates has not obtained the required majority. By 47 votes to 27, with 25 abstentions, the Assembly decided that the rule did not apply to elections to the Court and proceeded to elect the requisite number of candidates by a series of unrestricted ballots. That decision has been followed consistently.’ The concept of ‘unrestricted’ ballots is used in GA Rules 93 and 94 in contradistinction to ballots that are restricted to the two candidates who obtained the highest vote in an earlier balloting round. In 2008, the President of the General Assembly requested that the meeting confirm that this approach would be taken (UN Doc A/63/PV.39, p 2). 157

  UN Doc A/63/186–S/2008/502, 30 July 2008, para 12, relying on GA Rule 151 and Security Council Rule 61. 158

  Art 8, ICJ Statute.

159

  UN Doc A/63/186–S/2008/502, 30 July 2008, para 14.

160

  UN Doc A/63/186-S/2008/502, 30 July 2008, para 7, relying on Art 10(1) of the ICJ Statute. The Secretary-General observed (ibid, para 8): ‘The consistent practice of the United Nations has been to interpret the words “absolute majority” as meaning a majority of all electors, whether or not they vote or are allowed to vote. The electors in the General Assembly will be all 192 Member States. Accordingly, 97 votes constitutes an absolute majority in the Assembly for the purpose of those elections.’ While the UN has 193 members at the date of writing, 97 would continue to constitute an absolute majority. 161

  This occurred at the General Assembly, at the 44th plenary meeting of the 60th session, on 7 November 2005. 162

  UN Doc A/63/186-S/2008/502, 30 July 2008, para 13. See UN Doc A/63/PV.39 (2008), p

2. 163

  UN Doc A/63/186-S/2008/502, 30 July 2008, para 15. On 6 November 2014, four members were elected to the Court. The election of a fifth member could not be concluded on that day, or on the following day, because neither of the two remaining candidates was able to obtain an absolute majority in both the Security Council and the General Assembly. The election was postponed until 17 November 2014. Prior to the next round of voting, one of the remaining candidates, Ms Ruiz Cerutti of Argentina, withdrew her candidature, leaving only Mr Patrick Lipton Robinson of Jamaica in contention. He was elected a member of the Court by an absolute majority of both organs on 17 November 2014. See at http:// www.icj-cij.org/presscom/files/4/18394.pdf. 164

  UN Doc A/63/186-S/2008/502, 30 July 2006, para 16. This conciliation procedure has never been used since the ICJ Statute entered into force: Fassbender, ‘Article 12’ in The Statute of the International Court of Justice: A Commentary (eds Zimmerman et al, 2012), 333, at 335, para 3. See also a Legal Opinion of the Secretariat recommending that a joint conference should not be automatically resorted to, it being more practical for the electoral organs to proceed to further meetings ([1984] UN Juridical YB 173).

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165

  UN Doc A/63/186–S/2008/502, 30 July 2006, para 17. ‘In the event of an equality of votes among the judges, the oldest shall have a casting vote’ (ibid, relying on Art 12(3) and (4) of the ICJ Statute). 166

  Shaw, n 154, 377.

167

  ibid, 378. He notes that the practice of the General Assembly is to ‘take note of statements of a member of a delegation participating in the proceedings in the name of that representative’s national group or in the name of the candidate, announcing the withdrawal’. Similarly, the Security Council President will take note of such information. 168

  ibid, 378 and fn 42. Here he relies on a statement of the President of the General Assembly (UN Doc A/57/PV.35, 21 October 2002, p 2). 169

  In that case he observed that ‘Since the candidate from the Democratic Republic of the Congo was nominated by one national group—the Democratic Republic of the Congo—its request for withdrawal is certified by the General Assembly and is in accordance with Assembly practice.’ Later he observed that ‘if a Member State withdraws its candidature in the election for the International Court of Justice, all those national groups that recommended that candidate should support the withdrawal of the candidate’. This may suggest that, failing the approval of all supporting national groups, a candidate may not withdraw (or at least not withdraw during the meeting at which the voting takes place). At the plenary meeting where this statement was made, a number of delegates called for clarification from the Legal Counsel, which did not appear to be forthcoming (ibid, pp 3–8). 170

  UN Charter, Art 61(2) and GA Rule 145. The three-year term of office begins on 1 January and ends on 31 December (GA Rule 139). On ECOSOC generally, see ch 5, ‘The Economic and Social Council’. 171

  GA Res 2847 (XXVI) (1971), para 4, provides that ‘the members of the Economic and Social Council shall be elected according to the following pattern: (a) Fourteen members from African States; (b) Eleven members from Asian States; (c) Ten members from Latin American States; (d) Thirteen members from Western European and other States; (e) Six members from socialist States of Eastern Europe.’ 172

  UN Charter, Art 61(2) and GA Rule 146.

173

  For example, the US and France have been on ECOSOC continuously since 1946; the UK has been on since 1947. The Russian Federation (and the USSR before it) has been on ECOSOC since 1947, with a short gap between 2010 and 2014. New Zealand Ministry of Foreign Affairs and Trade, United Nations Handbook 2016–17: An Annual Guide for Those Working with and within the United Nations (2016), 141–2. 174

  GA Rule 140.

175

  For example, in the election in October 2009, the President advised the meeting which states had been endorsed by their regional groups. In each case, the number of states endorsed by the regional groups was equivalent to the number of seats available to the regional group (UN Doc A/64/PV.25, 26 October 2009). 176

  UN RP Supp no 3 (1959–66) vol II, Art 61, p 384, paras 20–2.

177

  ibid.

178

  See discussion at para 2.43.

179

  [1983] UN Juridical YB 183–4.

180

  ibid.

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181

  See ch 15, ‘The United Nations Secretariat and Secretary-General’, section 3, ‘Secretary-General’. 182

  UN RP Supp no 9 (1995–99) vol II, Art 18, p 5.

183

  UN Charter, Art 86.

184

  UN Charter, Art 86(1)(c). For discussion of membership in the Trusteeship Council, see ch 4, ‘The Trusteeship Council’, section 2, ‘Membership’. 185

  ‘Pre-voting consultations offer a chance for governments to set out their positions and to learn of others so that possibilities of reaching a compromise may emerge without the embarrassing glare of publicity. The give and take of the ensuing negations itself becomes an important factor in regulating the behaviour of governments’ (Baehr and Gordenker, n 97, 52). 186

  Peterson, n 43, 101. See also Hadwen and Kaufman, How United Nations Decisions are Made (1962). Also Kaufman, Conference Diplomacy: An Introductory Analysis (1988). 187

  Peterson, n 43, 101. ‘African, Asian, or Latin American delegations typically approach members of the other two Third World regional clusters; delegations from industrialized countries approach members of their own region and delegations of Third World countries with which their country has close associations because of alliances, trade agreements, or other ties’ (ibid). 188

  ibid.

189

  Baehr and Gordenker, n 97, 51.

190

  ibid, 51.

191

  Peterson, n 43, 101.

192

  GA Rule 12.

193

  GA Rule 10. For a discussion of possible limitations on the functioning of the General Assembly, see section 8, ‘Limitations on the functioning of the General Assembly’. 194

  GA Rule 13. GA Rule 40 gives the General Committee authority to propose deleting items from the agenda. While it has never used this authority, it has taken to suggesting that certain items be considered only every other or every third year (Peterson, n 43, 100). 195

  GA Rule 15.

196

  ibid.

197

  Peterson, n 43, 100.

198

  UN Doc A/71/251*, 16 September 2016.

199

  Peterson, n 43, 100.

200

  GA Rule 21.

201

  See discussion of the General Assembly Main Committees in section 4.3 and in ch 6, ‘Subsidiary Organs’, section 9, ‘Subsidiary organs of the General Assembly’. 202

  Peterson, n 43, 100–1.

203

  ibid, 101.

204

  Baehr and Gordenker, n 97, 52. They note (ibid, 51): ‘Delegates of small states sometimes rush into a room just before a crucial vote takes place, cast their ballot, and move on to the next meeting.’

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205

  In para 2 of GA Res 57/301 (2003), the General Assembly decided that ‘the general debate in the General Assembly shall open on the Tuesday following the opening of the regular session of the General Assembly and shall be held without interruption over a period of nine working days’. 206

  According to GA Res 58/126 (2003), in June of each year, the President-elect of the General Assembly, after taking into account the views provided by member states and following consultations with the incumbent President and the Secretary-General, will suggest an issue, or issues, of global concern upon which member states will be invited to comment during the General Debate. For example, the theme of the General Debate of the 71st session of the General Assembly (2016) was ‘The Sustainable Development Goals: a universal push to transform our world’: see at https://gadebate.un.org/en. For a discussion of the functions of the President of the General Assembly, see section 6, ‘Role of the President’. 207

  In 1960, Fidel Castro of Cuba spoke at the General Debate for a reported 4 hours and 29 minutes (United Nations GAOR, 15th Session, 872nd plenary meeting, 26 September 1960 (UN Doc A/PV.872) pp 117–36: see at http://ask.un.org/faq/37127). 208

  For example, it was in the context of the General Debate in 2010 that Iranian President Mahmoud Ahmadinejad suggested that the US Government was behind the 9/11 terror attacks to reverse a declining American economy (General Debate of 23 September 2010 (65th Session), available at https://gadebate.un.org/en/65/iran-islamic-republic). In 2006, Venezuelan President Hugo Chavez referred to US President George W Bush as ‘the devil’, and observed that the room smelled of sulphur. In the same speech, Chavez described the UN system as ‘worthless’ (General Debate of 20 September 2006 (61st Session), available at http://www.un.org/webcast/ga/61/pdfs/venezuela-e.pdf). During the General Debate in 1960, Soviet Chairman Nikita Khrushchev publicly accused the Secretary-General of ‘doing the dirty work’ of the West in the Congo (UN Doc A/PV.869, paras 141–2) and called for the Secretary-General to be ‘taken and conveyed in a cart, wearing nothing but a shirt, holding a torch of burning wax…[and have] the flesh…torn from his breasts, arms, thighs and calves with red-hot pincers, burnt with sulphur’, then drawn and quartered and burned, with his ashes scattered to the winds (UN Doc A/PV.882, 3 October 1960, para 30, as quoted by Cockayne and Malone, ‘Relations with the Security Council’ in Secretary or General? The UN Secretary General in World Politics (ed Chesterman, 2007), 74). 209

  For example, the 15th session opened at a time when US–USSR relations were particularly strained. During the General Debate, the President of the US, Dwight Eisenhower, and the Chairman of the Council of Ministers of the USSR, Nikita Khrushchev, addressed the plenary. Each leader accused the other of engaging in behaviour that threatened international peace and security (UN Doc A/PV.868, 22 September 1960, paras 77–9; and UN Doc A/PV.869, 23 September 1960, paras 118–20). 210

  Baehr and Gordenker, n 97, 100,

211

  Peterson, n 18, 60.

212

  Fitschen, n 28, 693, para 10.

213

  ibid, where Fitschen gives the example of the resolution finding that ‘Zionism is a form of racism and racial discrimination’, which was adopted on 10 November 1975 (GA Res 3379 (XXX) (1975)). The resolution was later revoked by the General Assembly by GA Res 46/86 (1991). 214

  Peterson, n 18, 65.

215

  ibid.

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216

  ibid. Peterson observes that delegations, by this stage, are in a rush to ensure that the work is finished so that the session can end by 23 December (ibid). 217

  ibid.

218

  Peterson, n 43, 101. He describes these changes as ‘modest’.

219

  See section 5.2.2.2, ‘Composition of regional groups’ for a listing of the generally accepted membership groups. 220

  See, generally, Holloway, ‘Forty Years of the United Nations General Assembly Voting’ (1990) 23(2) Canadian Journal of Political Science 279. 221

  Baehr and Gordenker observed: ‘The African and Asian groups sometimes meet together. Their Arab members may meet as a separate group. The Islamic Conference, which exists outside of the United Nations, sponsors meetings of the Muslim countries on issues in General Assembly of interest to them’. See Baehr and Gordenker, The United Nations: Reality and Ideal (2005), 49. 222

  Baehr and Gordenker describe the WEOG as having ‘never developed its consultations to the point of reaching a common point of view or group position …. [Their] consultations normally are nothing more than an exchange of views on candidates’ (ibid, 51). 223

  ibid, 51.

224

  ibid, 49.

225

  ibid, p 49. On 15 June 1964, at the end of the 1st session of the United Nations Conference on Trade and Development, 77 countries signed a joint declaration setting out the concerns and priorities of 77 ‘developing’ states (Joint Declaration of the Seventy-Seven Developing Countries made at the Conclusion of the United Nations Conference on Trade And Development, 15 June 1964, available at http://www.g77.org/doc/ Joint%20Declaration.html). This led to the establishment of what was to become known as the G-77. The 77 parties to the Joint Declaration were the following states: Afghanistan, Algeria, Argentina, Bolivia, Brazil, Burma, Burundi, Cambodia, Cameroon, Central African Republic, Ceylon, Chad, Chile, Colombia, Congo (Brazzaville), Congo (Leopoldville), Costa Rica, Cyprus, Dahomey (now Benin), Dominican Republic, Ecuador, El Salvador, Ethiopia, Gabon, Ghana, Guatemala, Guinea, Haiti, Honduras, India, Indonesia, Iran, Iraq, Jamaica, Jordan, Kenya, Kuwait, Laos, Lebanon, Liberia, Libya, Madagascar, Malaysia, Mali, Mauritania, Mexico, Morocco, Nepal, Nicaragua, Niger, Nigeria, Pakistan, Panama, Paraguay, Peru, Philippines, Republic of Korea, Republic of Vietnam, Rwanda, Saudi Arabia, Senegal, Sierra Leone, Somalia, Sudan, Syria, Thailand, Togo, Trinidad and Tobago, Tunisia, Uganda, United Arab Republic, United Republic of Tanganyika and Zanzibar, Upper Volta, Uruguay, Venezuela, Yemen, and Yugoslavia. An additional 57 members, including entities such as Palestine, which is not a member of the UN, are listed as follows: Angola, Antigua and Barbuda, Bahamas, Bahrain, Bangladesh, Barbados, Belize, Bhutan, Bosnia and Herzegovina, Botswana, Brunei Darussalam, Cape Verde, China, Comoros, Côte d’Ivoire, Cuba, Djibouti, Dominica, Equatorial Guinea, Eritrea, Fiji, Gambia, Grenada, Guinea-Bissau, Guyana, Lesotho, Malawi, Maldives, Marshall Islands, Mauritius, Micronesia (Federated States of), Mongolia, Mozambique, Namibia, Oman, Palestine, Papua New Guinea, Qatar, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Samoa, São Tomé and Príncipe, Seychelles, Singapore, Solomon Islands, South Africa, Suriname, Swaziland, Tajikistan, Timor-Leste, Tonga, Turkmenistan, United Arab Emirates, Vanuatu, Zambia, and Zimbabwe. The name G-77 has been retained for historical reasons (see the Group’s website at http://www.g77.org/doc/).With a total membership of 134, the G-77 describes itself as ‘the largest intergovernmental organization of developing states in the United Nations’. Its aim is to provide ‘the means for the countries of the South to articulate and promote their collective economic interests and enhance their joint negotiating capacity on all major international economic issues within the United Nations system, and promote From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

South-South cooperation for development’. Its Annual Meeting of the Ministers for Foreign Affairs is timed to start at the beginning of the regular session of the General Assembly of the UN in New York, and it ‘makes statements at various Main Committees of the General Assembly, ECOSOC and other subsidiary bodies, [and] sponsors and negotiates resolutions and decisions at major conferences and other meetings held under the aegis of the United Nations dealing with international economic cooperation and development as well as the reform of the United Nations’ (G-77 website at http://www.g77.org/doc/). 226

  Baehr and Gordenker, n 221, 49.

227

  See http://www.nti.org/learn/treaties-and-regimes/non-aligned-movement-nam/. As of April 2015 it had 120 member states (Afghanistan, Algeria, Angola, Antigua and Barbuda, Azerbaijan, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belize, Benin, Bhutan, Bolivia, Botswana, Brunei Darussalam, Burkina Faso, Burundi, Cambodia, Cameroon, Cape Verde, Central African Republic, Chad, Chile, Colombia, Comoros, Congo, Côte d’Ivoire, Cuba, Democratic People’s Republic of Korea (DPRK), Democratic Republic of Congo, Djibouti, Dominica, Dominican Republic, Ecuador, Egypt, Equatorial Guinea, Eritrea, Ethiopia, Fiji, Gabon, Gambia, Ghana, Grenada, Guatemala, Guinea, Guinea-Bissau, Guyana, Haiti, Honduras, India, Indonesia, Iran, Iraq, Jamaica, Jordan, Kenya, Kuwait, Lao Peoples’ Democratic Republic, Lebanon, Lesotho, Liberia, Libya, Madagascar, Malawi, Malaysia, Maldives, Mali, Mauritania, Mauritius, Mongolia, Morocco, Mozambique, Myanmar, Namibia, Nepal, Nicaragua, Niger, Nigeria, Oman, Pakistan, Palestine, Panama, Papua New Guinea, Peru, Philippines, Qatar, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, São Tomé and Príncipe, Saudi Arabia, Senegal, Seychelles, Sierra Leone, Singapore, Somalia, South Africa, Sri Lanka, Sudan, Suriname, Swaziland, Syrian Arab Republic, Tanzania, Thailand, Timor Leste, Togo, Trinidad and Tobago, Tunisia, Turkmenistan, Uganda, United Arab Emirates, Uzbekistan, Vanuatu, Venezuela, Vietnam, Yemen, Zambia, and Zimbabwe), as well as 17 observer states (Argentina, Armenia, BosniaHerzegovina, Brazil, China, Costa Rica, Croatia, El Salvador, Kazakhstan, Kyrgyzstan, Mexico, Montenegro, Paraguay, Serbia, Tajikistan, Ukraine, and Uruguay) and 10 observer organizations (the African Union (AU), Afro-Asian People’s Solidarity Organization, Commonwealth Secretariat, Hostosian National Independence Movement, Kanak Socialist National Liberation Front, League of Arab States, Organization of Islamic Cooperation, South Center, UN, World Peace Council) (ibid). 228

  Baehr and Gordenker, n 221, 49.

229

  Note by the Secretariat, ‘List of non-Member States, entities and organizations having received a standing invitation to participate as observes in the sessions and the work of the General Assembly’ (UN Doc A/INF/71/5, 12 January 2017). 230

  Baehr and Gordenker, n 221, 49. The Organization of Islamic Cooperation (OIC) describes itself as having a membership of 57 states (in which it includes the ‘State of Palestine’) spread over four continents. According to its website: ‘The Organization is the collective voice of the Muslim world and ensuring to safeguard and protect the interests of the Muslim world in the spirit of promoting international peace and harmony among various people of the world. The Organization was established upon a decision of the historical summit which took place in Rabat, Kingdom of Morocco on 12th Rajab 1389 Hijra (25 September 1969) as a result of criminal arson of Al-Aqsa Mosque in occupied Jerusalem.’ See at http://www.oic-oci.org/page/?p_id=52&p_ref=26&lan=en. 231

  GA Rule 81.

232

  Fitschen, n 28, 708, para 74.

233

  GA Rule 87(a).

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234

  See UN Doc A/520/Rev.17, April 2008, p 74, para 84 and Fitschen, n 28, 708, para 74.

235

  Roll-call votes may arise where an issue is particularly controversial, such as a 2014 vote affirming the General Assembly’s commitment to Ukraine’s sovereignty, political independence, unity, and territorial integrity after a 16 March 2014 ‘referendum’ (see www.un.org/press/en/2014/ga11493.doc.htm). In December 2016, the General Assembly adopted five resolutions put forward by the Second Committee by recorded vote, including a resolution on ‘Permanent sovereignty of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, and of the Arab population in the occupied Syrian Golan over their natural resources’ (see at http://www.un.org/press/en/2016/ga11880.doc.htm). 236

  Wolfrum, n 76, 627, para 20.

237

  Peterson, n 43, 101.

238

  Wolfrum, n 76, 633, para 31. Wolfrum observes that although the consensus procedure is not envisaged in the UN Charter or the Rules of Procedure, ‘its application meets no objection since, by definition, any participant having objections can prevent its use’ (ibid). 239

  Fitschen, n 28, 710, para 81. Notwithstanding the lack of provision in the UN Charter and Rules of Procedure, the Legal Counsel has affirmed the legality of the consensus procedure (UN Doc A/41/PV.102, 19 December 1986, pp 7–8). 240

  GA Res (XIX) (1964), paras 7–11 and UN RP Supp no 3 (1959–66) vol I, Art 19, p 397. See also Wolfrum, n 76, 632–3, para 31. 241

  Art 19 of the UN Charter provides: ‘A Member of the United Nations which is in arrears in the payment of its financial contributions to the Organization 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. The General Assembly may, nevertheless, permit such a Member to vote if it is satisfied that the failure to pay is due to conditions beyond the control of the Member’. 242

  Included here were the USSR, Byelorussia, Czechoslovakia, Hungary, Poland, Romania, and the Ukraine. See Tomuschat, ‘Article 19’ in Simma et al (eds), n 1, 637, at 640, para 6. 243

  The states were in arrears in their financial contributions due to their refusal to contribute to the funding of two peacekeeping operations (the First United Nations Emergency Force (UNEF I) and the United Nations Operation in the Congo (ONUC)), which those states considered to have been improperly established. 244

  GA Rule 74 further provides: ‘In addition to the proposer of the motion, two representatives may speak in favour of, and two against, the motion, after which the motion shall be immediately put to the vote. The President may limit the time to be allowed to speakers under this rule.’ 245

  Fitschen, n 28, 711–12, para 85.

246

  [1983] UN Juridical YB 174. See the discussion by Fitschen, n 28, 711–12, para 85.

247

  See section 5.2.3, ‘Election of president and vice-presidents’.

248

  UN Charter, Art 21.

249

  GA Rule 92.

250

  Permanent Mission of Switzerland to the United Nations, The PGA Handbook: A Practical guide to the United Nations General Assembly (2011), 90–1. 251

  The President may designate a Vice-President to act in his/her place where the President finds it necessary to be absent during all or part of a meeting: GA Rule 32.

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252

  GA Rule 35.

253

  ibid.

254

  A ‘point of order’ is defined as ‘basically an intervention directed to the presiding officer, requesting him to make use of some power inherent in his office or specifically given him under the rules of procedure. It may, for example, relate to the manner in which the debate is conducted, to the maintenance of order, to the observance of the rules of procedure or to the way in which presiding officers exercise the powers conferred upon them by the rules’ (UN Doc A/520/Rev.17 (2008), pp 72–3, para 79). Points of order raised under GA Rule 71 are said to be distinct from the procedural motions. 255

  While a representative may challenge the President’s ruling on a point of order by asking for a vote of the General Assembly, unless overruled by a majority of those present and voting, the President’s ruling shall stand (GA Rule 71). 256

  GA Rule 23 provides that where there is debate about the inclusion of an item in the agenda, the President may limit the time of speakers. 257

  GA Rule 35.

258

  ibid.

259

  GA Rule 68.

260

  GA Rule 74.

261

  GA Rule 78.

262

  Wolfrum, n 76, 632, para 31.

263

  For example, when Haiti fell into arrears under Art 19 before the 4th special session of the General Assembly in May 1963, the President of the General Assembly informed the Security Council in a letter of 15 May 1963 (UN Doc A/5431 (1963)) that he would permit it to participate in a formal vote if such a vote were to take place in the presence of a Haitian representative. This position led to a protest by the Soviet delegate, the USSR having begun to fall into arrears itself, with the state refusing to recognize arrears to the extent that they reflected expenditure related to certain peacekeeping operations (UN Doc A/5487/Rev.1, Annex I). To avoid a confrontation on the applicability of Art 19, the General Assembly decided, at the opening of its 19th session on 1 December 1964, to consider only issues that could be disposed of without objection. This consensus arrangement continued until 1 September 1965, when it was decided that the question of the applicability of Art 19 to the peacekeeping operations at issue would not be raised, and that the General Assembly would carry on its work normally in accordance with its rules of procedure (UN RP Supp no 3 (1959–66) vol I, Art 19, pp 397–8). 264

  On 28 September 1966, the President of the General Assembly characterized the withdrawal of Indonesia from the United Nations in the previous year as being merely a ‘cessation of co-operation’ and noted that, unless he heard an objection, he ‘would assume that it is the will of the membership that Indonesia should resume full participation in the activities of the United Nations and that the Secretary-General may proceed in the manner I have outlined’ (UN Doc A/PV.1420, paras 7–8). Similarly, after the United Arab Republic, formed in 1959 by Syria and Egypt, broke up in 1961, the President of the General Assembly, citing the special circumstances of the matter, held that Syria might be authorized to be represented in the General Assembly (UN Doc A/4913-S/4957; UN Doc A/ 4914-S/4957; UN Doc A/PV.1035 and 1036), as cited by Schwelb, ‘Withdrawal of the United Nations: The Indonesian Intermezzo’ (1967) 61 AJIL 661, at 669).

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265

  From the 21st to the 24th sessions (1965–9), the General Assembly’s Credentials Committee recommended the approval of South African credentials but the plenary of the General Assembly resolved to ‘take no action’ on the South African credentials. In 1970, the President of the General Assembly, Edvard Hambro (Norway), after consultation with the UN Legal Counsel (see Statement by the Legal Counsel, UN Doc A/8160, [1973] UN Juridical YB 140), proposed a formula—the ‘Hambro formula’—whereby the recommendation of the Credentials Committee was not accepted as regards South Africa, but the state was still allowed its rights and privileges of membership. As observed by the Legal Counsel, Art 5 of the UN Charter, which deals with suspension of rights and privileges, requires a ‘recommendation of the Security Council’, and the Security Council had made no such recommendation. The Hambro formula was followed in the 26th and 27th sessions of the General Assembly (1971–2) and in 1973, despite a change in recommendation by the Credentials Committee. In 1974, however, General Assembly President Abdelaziz Bouteflika (Algeria) interpreted the General Assembly’s approval of the Credentials Committee’s report, which had rejected the credentials of South Africa, as being tantamount to saying in explicit terms that the General Assembly refused to allow the delegation of South Africa to participate in its work. While the President’s ruling was challenged by the US, it was upheld by a margin of 91 to 22, with 10 abstentions. See Blum, Eroding the United Nations Charter (1993), 43–55.At the 64th session of the General Assembly (2009–10), a controversy arose as to whether the representative of Madagascar— a country that was experiencing violent political unrest at the time, which led to uncertainty about the representativeness of the Head of the delegation—could speak at the General Assembly. The President, after consulting with legal officials in the UN Secretariat, ruled that the delegate could be allowed to speak pending a ruling by the UN Credentials Commission. The matter was put to a vote, and the majority of those present voted against the President’s ruling, with the result that the representative was not permitted to speak. United Nations (UN News Centre), ‘Madagascar: General Assembly denies delegation permission to address forum’, 25 September 2009, available at http://www.un.org/apps/ news/story.asp?NewsID=32270&Cr=general+assembly&Cr1. For more on representation of members and credentials, see ch 8, ‘Membership’, section 6, ‘Representation of members/credentials’. 266

  UN Doc A/64/903, 8 September 2010, para 9.

267

  GA Res 59/313 (2005); GA Res 69/321 (2015), paras 45–56; GA Res 70/305 (2016), paras 46–69. 268

  GA Res 60/286 (2006), Annex, para 16.

269

  GA Res 58/126 (2003).

270

  GA Res 59/313 (2005), para 3. In 2009, eg, the President organized a General Assembly debate on the responsibility to protect, held on 21, 23, 24, and 28 July 2009 (GA Res 63/308 (2009)). 271

  For example, throughout his term as President in 2009 and 2010, Ali Treki (Libya) frequently called for reform to make the General Assembly stronger and the Security Council more representative (see United Nations (UN News Centre) ‘Assembly President calls for strengthened powers in interests of democracy’, 13 September 2010). There is, however, scope for the President to use the office to advance ideas that may not be those of the General Assembly as a whole. Miguel d’Escoto Brockmann (Nicaragua), President of the 63rd session of the General Assembly, caused controversy when, in an address to a meeting of the Committee on the Exercise of the Inalienable Rights of Palestinian People on 24 November 2008, he stated that the UN’s failure to establish a Palestinian state was ‘the single greatest failure in the history of the United Nations’ (see Williams, ‘General Assembly President Vilified for Stating Official UN Position on Palestine’, Washington Report on Middle East Affairs, January–February 2009, 28–9). The President of the General Assembly From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

for the 71st session (2016–17), Mr Peter Thomson of Fiji, has throughout his term made numerous calls and efforts to raise awareness concerning the significance of sustainable development and the necessity of the successful implementation of the Sustainable Development Goals (SDGs). See, eg, ‘Acceptance Speech by H.E. Mr. Peter Thomson Upon His Election As President’ (13 June 2016), available at http://www.un.org/pga/ 71/2016/06/13/acceptance-speech-upon-election-as-president/; ‘Remarks by HE Mr Peter Thomson, President of the 71st Session of the General Assembly at China Roundtable on Sustainable Development Goals Implementation’ (19 September 2016), available at http:// www.un.org/pga/71/2016/09/19/hina-roundtable-on-sustainable-development-goalsimplementation/ and ‘Opening Remarks by H.E. Mr. Peter Thomson, President of the 71st Session of the General Assembly at Financial Solutions for the Sustainable Development Goals’ (10 October 2016), available at http://www.un.org/pga/71/2016/10/10/financialsolutions-for-the-sustainable-development-goals/. 272

  GA Res 60/286 (2006), para 9; GA Res 69/321 (2015), paras 48-49; GA Res 70/305 (2016), paras 51–53. 273

  UN Doc A/64/903, 8 September 2010, Annex, para 8; See also in the report of the Ad Hoc Working Group on the Revitalization of the Work of the General Assembly, UN Doc A/ 70/1003, 2 August 2016, para 55. 274

  UN Doc A/64/903, 8 September 2010, Annex, para 11. For example, the President of the General Assembly met with the Queen Elizabeth II in July 2010. 275

  ibid.

276

  ibid; See also UN Doc A/70/1003, 2 August 2016, para 55.

277

  UN Doc A/64/903, 8 September 2010, Annex, para 13. ‘In addition to providing professional, expert advice, the Office of the President of the General Assembly undertakes the daily coordinating functions that are required in the performance of the President’s tasks, including liaising with Member States, Committee Chairs, and Co-Chairs of various processes, as well as with the Office of the Secretary-General, and the different departments and offices in the Secretariat, and the entire range of funds, programmes and agencies of the United Nations system. The Office also interacts with civil society, nongovernmental organizations, and the media’ (ibid, para 14). 278

  ibid, para 19. ‘Four regular budget 100 series posts (2 D-2, 1 D-1 and 1 P-5 Adviser) and one General Service staff member are provided from within the Organization’s budget on an annual basis to the Office…. To ensure geographical balance, the staff in these posts represent an international team, with staff coming from Europe, North America, Asia and Africa. None of the staff in these posts hold the same nationality as [the President in 2010].’ See also, UN Doc A/70/1003, 2 August 2016, paras 52, 54, 56–57. Recently, in an effort to increase the institutional memory and secure continuity in the Office of the President, calls have been made for the creation of more posts within the office and the transformation of some of the current ones to more long-term positions. See ibid, paras 54, 56–7. 279

  UN Doc A/64/903, 8 September 2010, Annex, para 17. The regular budget allocation in 2016 was US $322,000 (UN Doc A/70/1003, 2 August 2016, para 57). 280

  GA Res 59/313 (2005); GA Res 60/286 (2006); GA Res 69/321 (2015), paras 51-55; GA Res 70/305 (2016), paras 64-68. 281

  The ‘Original members’ of the UN are those 51 states that signed and ratified the UN Charter, having participated in the San Francisco Conference, or previously signed the Declaration by United Nations of 1 January 1942 (UN Charter, Art 3). 282

  UN Charter, Art 4(2).

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283

  Competence of the General Assembly for the Admission of a State to the United Nations (Advisory Opinion) ICJ Rep 1950, pp 7–10. 284

  UN Charter, Art 18(2).

285

  UN Charter, Art 93(2).

286

  UN Charter, Art 5. The restoration of the exercise of rights and privileges lies with the Security Council alone. 287

  Competence of the General Assembly for the Admission of a State to the United Nations (Advisory Opinion) ICJ Rep (1950). 288

  ‘Should the General Assembly, where there is no question of rival claimants, reject credentials satisfying the requirements of rule 27 for the purpose of excluding a Member State from participation in its meetings, this would have the effect of suspending a Member State from the exercise of rights and privileges of membership in a manner not foreseen by the Charter’ (UN Doc A/8160, 11 November 1970, as referred to in [1970] UN Juridical YB 169–70, para 8). 289

  Blum, n 265, 47 and discussion at n 265.

290

  See discussion at para 2.69 and n 263.

291

  UN Charter, Art 6.

292

  UN Charter, Art 18(2).

293

  In relation to South Africa, see GA Res 1761 (XVII) (1962) and GA Res 2054 A (XX) (1965). 294

  Perhaps most notable, in this regard, was the decision taken to recognize the People’s Republic of China as ‘the only legitimate representative of China to the United Nations’ (GA Res 2758 (XXVI) (1971)). This decision essentially unseated the Government of the Republic of China, which had represented the state in the UN since its founding. In anticipation of this development, a resolution adopted a decade before had deemed any change in China’s representation at the UN to be an important question requiring a two-thirds majority under Art 18 (GA Res 2758 (XXVI) (1971)). While some argue that this amounted to an expulsion of the Republic of China from the UN in contravention of Art 6 (eg Yang, ‘Taiwan’s Right to be Heard before the Security Council’ in The International Status of Taiwan in the New World Order (ed Henckaerts, 1996), 117, at 125), others view it as nothing more than recognition of a de facto change of government. The Secretary-General at the time preferred to view the situation in terms of UN membership, arguing that representation in an international organization was not necessarily linked to recognition of a government (UN Doc S/1466, 9 March 1950, p 2). In the view of the Secretary-General, the organs of the UN could, through their collective action, accord a government the right to represent a state in the organization, while individual members refused to recognize it as a lawful government (ibid, 6). This would be appropriate where a government possessed the power to carry out the obligations of membership.Also controversial was the General Assembly’s decision to reject the credentials of the South African Government at its 35th Session. The US representative, eg, observed that ‘Under the law of Article 5 and 6 of the Charter a Member State may be suspended or expelled from the United Nations only upon the recommendation of the Security Council as confirmed by the General Assembly. Yet depriving a Member State of the right to participate in the work of the only universal parliamentary organ of the United Nations is a principal consequence of suspension and expulsion …. Consequently, the right of participation can only be denied in accordance with

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Articles 5 and 6 of the Charter’ (UN Doc A/35/PV.103, 2 March 1981, paras 31–2). See also para 2.81. 295

  UN Charter, Art 17(1) and (2).

296

  UN Charter, Art 17(3). See ch 7, ‘United Nations Specialized Agencies’.

297

  UN Charter, Art 18(2).

298

  See ch 6, ‘Subsidiary Organs’, section 9, ‘Subsidiary organs of the General Assembly’.

299

  Art 32(5), ICJ Statute.

300

  Art 32(6), ICJ Statute.

301

  Art 32(7), ICJ Statute.

302

  UN Charter, Art 60 (ECOSOC) and Arts 85(2) and 87 (the Trusteeship Council). See also Art 63(1), which provides that agreements entered into between ECOSOC and the specialized agencies are subject to the approval of the General Assembly. Similarly, Art 66(1) provides that the services ECOSOC performs for member states or specialized agencies are subject to the approval of the General Assembly. 303

  UN Charter, Art 10. See section 8, ‘Limitations on the functioning of the General Assembly’ for a discussion of the limitations on the powers of the General Assembly. 304

  UN Charter, Art 15(1). Art 24(3) provides that the Security Council shall submit annual and, when necessary, special reports to the General Assembly. 305

  UN Charter, Art 15(2). While the provision speaks in terms of ‘the other organs of the United Nations’ and not the ‘other principal organs’, it would appear not to include subsidiary organs. Art 62(1) provides for ECOSOC to make recommendations to the General Assembly in relation to studies or reports it has initiated. Art 64(2) provides that ECOSOC may communicate its observations on reports of the specialized agencies to the General Assembly.Art 88 provides that the Trusteeship Council must make an annual report to the General Assembly on the basis of a questionnaire it is required to formulate on the political, economic, social, and educational advancement of each trust territory—though, as noted at section 5.2.4.5, ‘Trusteeship Council’ the Trusteeship Council has been inactive since 1994. The Secretary-General is required under Art 98 to make an annual report to the General Assembly on the work of the organization. The ICJ submits a report of its activities to the General Assembly annually, though this is a matter of practice rather a legal obligation: ‘[The Court] is not answerable for its activities to the UN’s political organs. Indeed, until 1968 it was alone amongst the principal organs…in not even submitting annual reports on its activities to the General Assembly. Since 1968 it has done so, in the process reinforcing its ties with the rest of the UN system…. The purpose was to enable the Court to present its activities to the Assembly, to make its role better known to Member States, and also to make them aware of its difficulties and its wishes, thus making possible a more fruitful relationship between the organisation that provides the funds, and the Court as an institution’ (Kolb, The International Court of Justice (2013), 65). 306

  GA Res 2864 (XXVI) (1971). The Resolution requested that in the next session, due consideration be ‘given to the views of interested Governments’, and that a report of the Secretary-General feature ‘suggestions concerning ways and means of enhancing the effectiveness of the Security Council in accordance with the principles and provisions of the Charter of the United Nations’. 307

  GA Res 2991 (XXVII) (1972).

308

  GA Res 51/193 (1997).

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309

  In one of its first resolutions, it decided on the administrative structure of the General Assembly (GA Res 13 (I) (1946)). 310

  UN Charter, Art 101(1). See the discussion of the staffing of the Secretariat at ch 15, ‘The United Nations Secretariat and Secretary-General’, section 2, ‘International Civil Service’. 311

  For example, the United Nations High Commissioner for Refugees (UNHCR) and the Executive Director of the United Nations Environment Programme (UNEP) are elected by the General Assembly on the nomination of the Secretary-General, and the SecretaryGeneral of the United Nations Conference on Trade and Development (UNCTAD) is appointed by the Secretary-General but subject to confirmation of the General Assembly. Although Art 101(1) authorizes the General Assembly to establish regulations relating to the appointment of staff, it is clear that the actual appointment of staff is a matter for the Secretary-General. As such, the role of the General Assembly in the appointment of staff has been criticized by some as a diminution of an important function of the SecretaryGeneral (Szasz, ‘The role of the UN Secretary-General: Some Legal Aspects’ (1991) 24 NYU JILP 161, at 172). 312

  UN Charter, Art 96(2).

313

  See section 5.2, ‘Voting on matters of election or appointment’.

314

  UN Charter, Art 97. In 1950, when the five-year term of the first Secretary-General, Trygve Lie, was due to expire, the Security Council was unable to agree on a name to put forward to the General Assembly. The USSR had indicated it would veto any resolution to reappoint Lie for a further term, and the US had indicated it would veto any candidate other than Lie. As a result, the General Assembly appointed Lie for a three-year term, acting without a recommendation of the Security Council. For more on the appointment of Secretaries-General, see ch 15, ‘The United Nations Secretariat and Secretary-General’, section 3, ‘Secretary-General’. 315

  Art 108 of the UN Charter provides that amendments come into force for all members when they have been adopted by a vote of two-thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by twothirds of the members, including all of the permanent members of the Security Council. Art 109 (1) provides the General Assembly with the role of fixing a date and place for a review conference. 316

  Art 69, ICJ Statute. This article provides that amendments to the Statute of the ICJ shall be effected by the same procedure as for amendments to the Charter ‘subject however to any provisions which the General Assembly upon recommendation of the Security Council may adopt concerning the participation of states which are parties to the present Statute but are not Members of the United Nations’. 317

  UN Charter, Art 105(3).

318

  Art 1 of the UN Charter provides: The Purposes of the United Nations are: 1.  To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the

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principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; 2.  To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; 3.  To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and 4.  To be a centre for harmonizing the actions of nations in the attainment of these common ends.

319

  UN Charter, Arts 10, 11(1) and (2) and 14. On the role of the General Assembly as regards considering and discussing as it pertains to the maintenance of international peace and security, see ch 26, ‘Keeping the Peace’, section 2.2, ‘Power to discuss and recommend’. 320

  UN Charter, Art 13(1).

321

  UN Charter, Art 11(3).

322

  UN Charter, Arts 10, 11(1) and (2), 13(1), and 14. Where such recommendations are in respect of matters involving international peace and security, they are subject to the limitation in Art 12; though see section 8.2, ‘Article 12(1)’ for a discussion of the actual impact of this limitation. On the role of the General Assembly as regards making recommendations pertaining to the maintenance of international peace and security, see ch 26, ‘Keeping the Peace’, section 2.2, ‘Power to discuss and recommend’. 323

  Klein and Schmahl, ‘Article 10’ in Simma et al (eds), n 1, 461, at 464, para 6. See also GA Res 46/59, 9 December 1991, Annex, para 1, which provides that ‘in performing their functions in relation to the maintenance of international peace and security, the competent organs of the United Nations should endeavour to have full knowledge of all relevant facts. To this end they should consider undertaking fact-finding activities.’ See also ibid, para 11, which calls on the ‘General Assembly…wherever appropriate, [to] consider the possibility of providing for recourse to fact-finding in its resolutions relevant to the maintenance of international peace and security’. 324

  In the South-West Africa case, the ICJ ruled that the competence of the General Assembly to receive and examine reports could be derived from its competence to discuss and resolve under Art 10. While the Court did not elaborate, it would appear that the former powers were taken to be part of its competence to discuss and resolve; similarly, a competence to investigate may also be said to be necessary to its competence to discuss and resolve (International Status of South-West Africa (Advisory Opinion) ICJ Rep 1950, p 137). 325

  See ch 26, ‘Keeping the Peace’, section 2.2, ‘Power to discuss and recommend’ for a broader discussion of the General Assembly’s role in the preservation and restoration of international peace. 326

  UN Charter, Art 11(1).

327

  UN Charter, Art 11(2).

328

  A non-member state must accept in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the Charter (see Art 11(2) and Art 35(2)).

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329

  UN Charter, Art 11(3).

330

  UN Charter, Art 14. Art 35(1) provides that a member state or, in certain conditions, a non-member-state, may bring a dispute or situation to the attention of the General Assembly. 331

  Sands and Klein, Bowett’s Law of International Institutions (2009), 2. The authors attribute the phrase to Potter, An Introduction to the Study of International Organisations (1948), 115–30. 332

  UN Charter, Art 13(1)(a).

333

  ibid.

334

  UN Charter, Art 13(1)(b).

335

  ibid.

336

  ibid.

337

  ibid.

338

  ibid.

339

  UN Charter, Art 13(2).

340

  UN Charter, Art 13(1)(b) and (2). See also ch 22, ‘Promotion and Protection of Human Rights’. 341

  GA Res 1785 (XVII) (1962).

342

  GA Res 2997 (XXVII) (1972).

343

  Franda, The United Nations in the Twenty-First Century Management and Reform Processes in a Troubled Organization (2006), 225. 344

  See, eg, the discussion relating to Franco’s Spain and whether the General Assembly could condemn the regime without breaching Art 2(7) (UN RP (1945–54) vol I, Art 2(7), pp 61–6). 345

  In the words of Jennings and Watts, it is clear that Art 2(7) ‘does not exclude actions, short of dictatorial interference, undertaken with the view to implement the purposes of the Charter. Thus with regard to the protection of human rights and freedoms—a prominent feature of the Charter—the prohibition of intervention does not preclude study, discussion, investigation and recommendation on the part of the various organs of the United Nations’ (Jennings and Watts, Oppenheim’s International Law (1992), 448–9). 346

  See Nolte ‘Article 2 (7)’ in Simma et al (eds), n 1, 286–7, para 14. Nolte gives the example of the rejection of proposal to include an item on the ‘internal situation pertaining to the Republic of China’ on the agenda based on Art 2(7) (ibid). 347

  ibid.

348

  While not defined in Art 12, the term ‘dispute’ is used in Art 33 of the UN Charter to be something which ‘any dispute, the continuance of which is likely to endanger the maintenance of international peace and security’; the term ‘situation’ is elaborated upon in Art 34 and said to be something ‘which might lead to international friction or give rise to a dispute’. The terms as used in Arts 33 and 34, respectively may provide some guidance into the nature of the dispute or situation envisaged by the drafters in Art 12. 349

  UN Charter, Art 12, read in conjunction with Arts 10, 11(2), and 14.

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350

  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Rep 2004, p 149. Examples of this early practice include the General Assembly, in its 4th session, refusing to recommend certain measures on the question of Indonesia, on the ground, inter alia, that the Council remained seized of the matter. Similarly, the early practice of the Security Council was to delete items from its agenda in order to enable the General Assembly to deliberate on them, eg, the situation in Spain in 1946 and the dispute involving Greece on the one hand and Bulgaria, Albania, and Yugoslavia, on the other, in 1947 (ibid, p 149). See also ‘Practice of the United Nations as regards the Consideration of the Same Questions by the Security Council and the General Assembly’, Note to the Deputy Chef de Cabinet [1964] UN Juridical YB 230, para 5. 351

  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Rep 2004, p 149. The examples given by the Court are the matters of the Congo (1961) and Portuguese colonies (1963). 352

  [1964] UN Juridical YB 237, para 34.

353

  ibid. The General Assembly evinced a tendency to read the limitation at Art 12 narrowly. It took the view that was a distinction between ‘recommendations’ and other resolutions without a recommendatory nature—though clearly there would be room for disagreement about whether a resolution had a recommendatory nature. 354

  [1968] UN Juridical YB 185.

355

  ibid.

356

  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Rep 2004, pp 149–50. The Court continued (ibid, p 150): ‘It is often the case that, while the Security Council has tended to focus on the aspects of such matters related to international peace and security, the General Assembly has taken a broader view, considering also their humanitarian, social and economic aspects.’ 357

  ibid, p 150. No known protests by the Security Council against this course of action have been made (Klein and Schmahl, ‘Article 12’ in Simma et al (eds), n 1, 507, at 512, para 11). 358

  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Rep 2004, p 150. 359

  GA Res 337 (V) A (1950), para 1: ‘Resolves that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security. If not in session at the time, the General Assembly may meet in emergency special session within twenty-four hours of the request therefor. Such emergency special session shall be called if requested by the Security Council on the vote of any seven members, or by a majority of the Members of the United Nations.’ 360

  White, The Law of International Organisations (2005), 103.

361

  Where the General Assembly is in session, the convening of an emergency special session is not necessary. The procedure for convening a emergency special session of the General Assembly is set out in GA Res 377 (V) (1950) and may be called upon the passing of

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a procedural vote by the Security Council (see ibid, para 1) or a majority of member states of the UN. 362

  According to Sands and Klein this constitutes essentially ‘an assertion of secondary responsibility’ on behalf of the General Assembly in relation to the maintenance of international peace and security (Sands and Klein, n 331, 31). 363

  Though as White notes, ‘there appears to be no cogent argument against allowing the Assembly to recommend military measures to combat a threat to the peace’ (White, n 360, 103, relying on Bailey and Daws, The Procedure of the UN Security Council (1998), 296). 364

  GA Res 337 (V) (1950). The Resolution also established a Peace Observation Commission, to be composed of 14 member states, charged with observing and reporting on situations likely to endanger international peace and security, and a Collective Measures Committee, to be composed of 14 member states, charged with studying methods that might be used to maintain and strengthen international peace and security in accordance with the Purposes and Principles of the UN Charter. 365

  See Hogg, ‘Peace-Keeping Costs and Charter Obligations: Implications of the International Court of Justice Decision on Certain Expenses of the United Nations’ (1962) 62 Columb LR 1230, at 1234. 366

  A decision under Art 12(1) to request the General Assembly to make a recommendation on a matter notwithstanding the fact that the Security Council is exercising its powers in relation to the dispute is, apparently, governed by the voting rules under Art 27(3) of the UN Charter, which requires the concurring votes of the permanent members (thereby allowing any one of them to use its veto power). On the other hand, the procedure under Uniting for Peace simply requires a majority of Security Council members to convene an emergency special session. Klein and Schmahl, n 357, 518, para 29. 367

  According to the USSR, Uniting for Peace signified a violation of the division of powers under the UN Charter between the General Assembly and the Security Council. See, Hogg, n 365. 368

  See Klein and Schmahl, n 357, 512, para 12: ‘The problem of this interpretation lies in the fact that the permanent members of the [Security Council] are expressly granted the veto power…and its exercise is not necessarily aimed at paralysing the security mechanism of the UN. It may well be based on the conviction that there is no threat to the peace or that a State is wrongly accused of having committed an act of aggression…. In such a case, the blocking of coercive measures against a (member) State can just be a reasonable exercise of the functions assigned to the Security Council.’ See also Andrassy, ‘Uniting for Peace’ (1956) 50 AJIL 563, at 572–3. He argues that the Uniting for Peace cannot be considered contrary to the text of the UN Charter but could arguably be considered so, as regards its spirit. However, he concludes that where the Security Council fails to discharge its duties, there is nothing contrary to either the spirit or the text of the UN Charter if the General Assembly acts instead (ibid, 574). ‘No provision of the Charter, not even Article 24, as was observed by the Pakistani delegate, would allow the conclusion that the responsibility of the Organization as a whole is ended in case of inability or unwillingness of the Council to take prompt and effective action’ (ibid). 369

  Bowett sees no difficulty with the Uniting for Peace Resolution comporting with the Charter: he notes that nothing in Art 12 of the UN Charter specifies that the permanent members of the Security Council ‘all have to favour a request from that organ that the Assembly make a recommendation’. As to situations where the emergency special session is convened by a majority of member states, ‘as this would not occur until the Council had failed to act, and the residual responsibility of the Assembly implied by Article 24(1) came into play, it cannot be accepted that this is contrary to the Charter’ (Bowett, United Nations Forces: A Legal Study of United Nations Practice (1964), p 292).To Klein and Schmahl, the

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convocation of an emergency special session only removes the prohibition on recommendations by the General Assembly if it comes from the Security Council; there, the ‘mere convocation can be equated with a request under Article 12(1), last section, even if it does not expressly refer to the making of recommendations by the [General Assembly]’ (Klein and Schmahl, n 357, 518, para 29). 370

  Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) ICJ Rep 1962, p 151. 371

  Bowett (n 369, 291) states: ‘At no time does the Court uphold the right of the Assembly to recommend enforcement measures (though it emphasises repeatedly that only the Council may order coercive action), either under the Charter generally or under the Uniting for Peace Resolution. Moreover, the opinion of the Court studiously avoids all mention of that Resolution, even though it was much discussed in the Pleadings.’ See also Higgins, United Nations Peace-Keeping: Legal Essays (ed Cassese, 1978), 6. 372

  For a discussion of the Uniting for Peace Resolution in the context of UN peacekeeping and an analysis of the views of different states on the issue of its legality, see Higgins, United Nations Peacekeeping 1946–1967: Documents and Commentary, I: The Middle East (1969), 260–73. 373

  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory ICJ Rep 2004, p 150. 374

  For a list of emergency special sessions, see n 59.

375

  See the discussion in n 59. The 10th emergency special session was last resumed on 15 and 16 January 2009, at the request of the President of the General Assembly, to consider the crisis in the Gaza strip. It ended with the adoption of GA Res ES-10/18 (2009), which reiterated the Security Council’s urgent call for an immediate ceasefire leading to withdrawal of Israeli forces from Gaza and the unimpeded provision and distribution of humanitarian assistance (SC Res 1860 (2009)). The resolution also adjourned the 10th emergency special session temporarily, and authorized the President of the General Assembly to resume its meeting upon request from Member States. See also the ICJ’s discussion of a previous meeting of 10th emergency special session, which led to the adoption of a resolution requesting an advisory opinion from the ICJ (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory ICJ Rep (2004), pp 145– 6). 376

  Weiss et al, The United Nations and Changing World Politics (2014), 31.

377

  Whether brought before it by a state (whether or not a member of the UN), or by the Security Council. 378

  See, generally, Klein and Schmahl, ‘Article 11’ in Simma et al (eds), n 1, 491.

379

  Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) ICJ Rep 1962, p 164. The ICJ continued: ‘The word “action” must mean such action as is solely within the province of the Security Council. It cannot refer to recommendations which the Security Council might make, as for instance under Article 38, because the General Assembly under Article 11 has a comparable power. The “action” which is solely within the province of the Security Council is that which is indicated by the title of Chapter VI1 of the Charter, namely “Action with respect to threats to the peace, breaches of the peace, and acts of aggression”. If the word “action” in Article 11 paragraph 2, were interpreted to mean that the General Assembly could make recommendations only of a general character affecting peace and security in the abstract, and not in relation to specific cases, the paragraph would not have provided that the General Assembly may make recommendations on questions brought before it by States or by the Security Council. Accordingly, the last

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sentence of Article 11, paragraph 2, has no application where the necessary action is not enforcement action’ (ibid, 165). See also Klein and Schmahl, n 378, at 499.

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Part 2 The United Nations: What it is, 3 The Security Council Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): Collective security

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(p. 62) 3  The Security Council 1.  Introduction 3.01 2.  Membership 3.04 3.  Procedure 3.14 4.  Meetings 3.15 5.  Participation 3.43 6.  Voting 3.52 7.  Presidency 3.64 8.  Functions 3.72 Aust, ‘The Procedure and Practice of the Security Council Today’ in The Development of the Role of the Security Council (ed Dupuy, 1992), 365; Aust, Handbook of International Law (2010); Blum, ‘The Presidency of the Security Council and the Duty of Impartiality’ in International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (ed Dinstein, 1989), 51; Bühler, ‘Article 28’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 939; Brugière, La règle de l’unanimité des membres permanents au Conseil de Sécurité, Droit de Veto (1952); Conforti, ‘The Legal Effect of NonCompliance with Rules of Procedure in the UN General Assembly and Security Council’ (1969) 63 AJIL 479; Dolzer and Kreuter-Kirchhof, ‘Article 31’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1050; Einsiedel, Malone, and Ugarte (eds), The UN Security Council in the 21st Century (2016); Geiger, ‘Article 23’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 751; Higgins, The Development of International Law through the Political Organs of the United Nations (1963); Hulton, ‘Council Working Methods and Procedures’ in The UN Security Council: From the Cold War to the 21st Century (ed Malone, 2004), 237; Johnstone, ‘When the Security Council is Divided: Imprecise Authorizations, Implied Mandates, and the “Unreasonable Veto”’ in The Oxford Handbook of the Use of Force in International Law (ed Weller, 2015), 227; Luck, ‘Principal Organs’ in The Oxford Handbook on the United Nations (eds Daws and Weiss, 2008), 653; Milano, ‘Russia’s Veto in the Security Council: Whither the Duty to Abstain under Art 27(3) of the UN Charter?’ (2015) 75 ZöV 215; Pogany, ‘The Role of the President of the U.N. Security Council’ (1982) 31 ICLQ 231; Sands and Klein (eds), Bowett’s Law of International Institutions (2009); Schweisfurth, ‘Article 34’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1086; Schweisfurth, ‘Article 35’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1108; Sievers and Daws, The Procedure of the UN Security Council (2014); Talmon, ‘The Statements by the President of the Security Council’ (2003) 2 Chinese JIL 419; Tavernier, ‘Les declarations du Président du Conseil de Sécurité’ (1991) 39 AFDI 86; Tzanakopoulos, ‘Transparency in the Security Council’ in Transparency in International Law (eds Bianchi and Peters, 2013), 367; Volger, ‘Mehr Transparenz und mehr Beteilingung. Die informelle Reform der Arbeitsmethoden des UN-Sicherheitsrats’ (2010) 58 Vereinte Nationen 195; Wood, (p. 63) ‘Security Council Working Methods and Procedure: Recent Developments’ (1996) 45 ICLQ 150; Zimmermann, ‘Article 27’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 871.

1.  Introduction

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3.01  The Security Council is unique among the principal organs of the UN in two important ways: member states agree to accept and carry out the decisions it takes in accordance with the UN Charter;1 and member states have conferred upon it the primary responsibility for the maintenance of peace and security.2 Most would agree that it is also the most influential of the UN principal organs. This was not always so, however. During the long Cold War, the frequent exercise of the veto and the complex power structures among the permanent five member states meant that the Security Council was unable to address violations of international peace and security in the manner envisaged in the Charter, and sometimes was unable to address them effectively at all. This resulted in much of the work in the area of international peace and security being taken on by other principal organs, in particular the General Assembly and, to a lesser extent, the Secretary-General. 3.02  While the Security Council has been more productive and has expanded its activity considerably since the end of the Cold War, certain problems remain in the present day. Veto-wielding permanent member states of the Security Council often appear to put their national interests ahead of their responsibility to protect international peace and security, at times leading to the Security Council being unable to pass important draft resolutions. Where it is able to agree to pass such resolutions, their content is frequently ‘watereddown’, often leaving the Security Council’s intention unclear. The Security Council remains a highly politicized organ, featuring limited transparency in its decision making.3 Its voting system, which allows its five permanent members disproportionate influence in the operation of the Security Council and, in turn, the UN as a whole, has become a growing source of dissatisfaction over the years. 3.03  Since the end of the Cold War the productiveness of the Security Council has increased dramatically. In the 1990s it adopted an average of 64 resolutions a year; in the previous years of its existence, it adopted an average of just 14 per year.4 In 2016, (p. 64) it adopted 76 resolutions. Not only has the number of resolutions passed each year increased significantly since the early years, so too has their complexity and length.5

2.  Membership 2.1  Generally 3.04  The Security Council consists of five permanent and 10 non-permanent member states.6 Permanent membership in the Security Council was granted to five states based on their importance in the aftermath of World War II. These included7 the Republic of China, France, the Union of Soviet Socialist Republics (USSR), the United Kingdom of Great Britain and Northern Ireland (UK), and the United States of America (US).8 3.05  Non-permanent members are elected by the General Assembly for a two-year term, with five members being elected each year (and holding staggered terms). During the election process, the General Assembly shall pay ‘due regard, in the first instance to the contribution of members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organisation, and also to equitable geographical distribution’.9 While the latter factor has been a factor in the election process,10 the former appears not to have had much bearing.11 3.06  Decisions by member states as to which candidate state to elect for a non-permanent seat may depend on matters such as the effectiveness of the candidate state’s public relations (p. 65) campaign and how assiduously the candidate state courts the favour of other states.12 Candidate states may view non-permanent membership as a means by which to increase their influence on the world stage or to advance certain strongly held

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positions.13 In 2013, Saudi Arabia refused to take up a non-permanent seat, despite having been elected, apparently as a way to signal its displeasure with the organ’s functioning.14

2.2  Expansion 2.2.1  Historical 3.07  In 1963, the General Assembly, recognizing that the composition of the Security Council was ‘inequitable and unbalanced’, adopted a resolution to amend the UN Charter15 such that the Security Council included 10 non-permanent members—instead of six, as had originally been the case.16 It also amended the previous voting structure so that Security Council decisions would require the affirmative vote of nine members—instead of the seven required originally.17 The number and identity of the permanent five members did not change. The General Assembly further decided to establish a formal pattern by which nonpermanent members of the Security Council were to be elected, designed to ensure geographic distribution.18 The change led to something of a diminution of the powers of the permanent members in that, now, the 10 non-permanent members alone possessed the necessary nine votes to pass a procedural decision, whereas under the old system the six non-permanent members required the support of at least one permanent member to achieve the seven votes required at the time. (p. 66) 3.08  While neither the size nor the official composition of the permanent membership of the Security Council has changed, the parties entitled to represent two of the permanent member states have. In 1971 the General Assembly recognized the representatives of the People’s Republic of China as ‘the only lawful representative of China to the United Nations and that the People’s Republic of China is one of the permanent members of the Security Council’.19 The unseating of the Nationalist Government (Republic of China or ROC)20 by the People’s Republic of China put to rest a long-simmering disagreement on the representation of China in the UN. Given that the Charter makes specific reference to the ‘Republic of China’ in Article 23(1), an argument could have been made that the Charter should have been amended to reflect this change. 3.09  After the dissolution of the USSR in 1991, the Russian Federation—the largest of the Soviet republics—assumed the permanent seat held by the USSR.21 Given that the Charter makes specific reference to the ‘Union of Soviet Socialist Republics’ in Article 23(1), an argument could have been made that, in order for the Russian Federation to assume the permanent seat of the USSR, the Charter should have been amended. Moreover, if judged to be a new, succeeding state, the Russian Federation arguably should have been required to apply for admission to the UN as provided under Article 4, as several other successor states have been required to do.22 The arrangement whereby the Russian Federation assumed the permanent seat of the USSR was, however, immediately accepted by the US, and there appears to have been a lack of adverse reaction by any other member state or any UN organ.23

(p. 67) 2.2.2  Current expansion issues 3.10  Given the changed nature of political power since 1945 and the increase in the number of influential states that are not permanent members of the Security Council, arguments in favour of revising the composition of the Security Council—including the possible creation of more permanent (or semi-permanent) seats—and its voting rules are frequently made.24 In particular, the absence of permanent representation from Africa, given the large number of member states from that continent and the fact that those states have occupied much of the Security Council’s agenda over the years, has been the source of significant frustration. The limited geographical diversity among the five permanent

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members of the Security Council is clear from the fact that three such member states are Western, ie the UK, France, and the US. 3.11  The question of equitable representation on and increase in the membership of the Security Council was first introduced to the UN agenda in 1979, during the 34th session of the General Assembly.25 In 1993, the General Assembly established the Open-Ended Working Group on the ‘Question of equitable representation on and increase in the membership of the Security Council and related matters’.26 The Working Group began its deliberations the following year and has submitted progress reports to the General Assembly at its sessions annually.27 The Working Group appears to have achieved relatively little in the time of its existence, at least in terms of expanding the Security Council membership.28 The issue of Security Council expansion is frequently addressed at the annual General Debate of the General Assembly, under an agenda item entitled ‘Question of equitable representation on and increase in the membership of the Security Council and related matters’.29 (p. 68) 3.12  In the UN Millennium Declaration, arising from the Millennium Summit, the General Assembly resolved to intensify efforts to ‘comprehensively reform the Security Council in all its aspects’.30 As a follow-up to the Outcome of the Millennium Summit, the Secretary-General convened a High-Level Panel of eminent persons to advise on a number of issues relating to the improved functioning of the organization.31 The report of the HighLevel Panel put forward two models for expansion: •  Model A, which would have seen the creation of six new permanent seats (none of which would have veto power) and three new two-year, non-permanent seats, divided regionally; or •  Model B, which would have seen the creation of no new permanent seats but would have involved the creation of one new category of eight four-year, renewable-term seats and one new two-year, non-renewable seat, divided regionally. 32 However, neither model was accepted. 3.13  Nevertheless, there now appears to be broad agreement—amongst both developed and developing states—that an increase in the size of the Security Council is desirable. Indeed, all five of the permanent members of the Security Council have made public statements in favour of reform.33 There is, however, little in the way of uniformity of approach to expansion.34 One main issue is whether new members should be (p. 69) permanent, non-permanent, or ‘semi-permanent’, ie non-permanent members that have longer, renewable terms. Another issue is whether any new permanent member should possess the veto power;35 if not, the result would be two tiers of permanent members— those with vetoes and those without.36 In addition, there is a wide variety of views about which criteria would make a country a suitable candidate for permanent membership, including considerations of influence37 and/or ability to maintain international peace and security,38 equitable regional distribution,39 and other factors.40

3.  Procedure 3.14  The UN Charter provides that the ‘Security Council shall adopt its own rules of procedure, including the method of selecting its President’.41 The Security Council has done so,42 although its Rules of Procedure are described as ‘Provisional’. Their (p. 70) provisional nature had led one expert to observe that the Security Council ‘can, and does, depart from them whenever it considers it necessary’, so long as such a departure is not in contradiction to the content of the UN Charter itself.43

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4.  Meetings 4.1  Ordinary meetings 3.15  The UN Charter provides that the Security Council must be organized so as to function continuously, and each member state shall be represented at all times at the seat of the session.44 The Rules of Procedure provide that an ordinary (or non-periodic) meeting45 shall be called by the President when he/she deems necessary,46 at the request of a member state of the Security Council,47 or where a matter that the General Assembly or the Secretary-General considers likely to endanger (or at least impact upon) international peace and security is brought to the attention of the Security Council by either organ.48 In practice, the President’s decisions in this regard are almost always taken after informal consultations.49 Under Rule 1, in no case must the interval between ordinary meetings of the Security Council exceed 14 days. Where the President does not consider any matter on the Security Council’s agenda to require its immediate attention, he/she would consult with representatives (p. 71) of other Security Council member states to ascertain whether there was any objection to his/her waiving the requirement under Rule 1.50 In practice, however, the Security Council rarely goes for as long as 14 days without a meeting. 3.16  Meetings are normally held at the Security Council Chambers in the UN Headquarters in New York, though the Security Council may hold meetings at such other places as in its judgement will best facilitate its work.51 Since the mid-1990s, the Security Council has held thematic meetings, the topics of which are usually based upon the suggestion of the President of the Security Council.52 Meetings are normally held at the level of permanent representatives (‘ambassadors’) or, when they are not available, senior members of their missions.53

4.2  Periodic meetings 3.17  The UN Charter provides that the Security Council shall hold periodic meetings at which each of its members may, if it so desires, be represented by ‘a member of the government or by some other specially designated representative’.54 The purpose of such meetings is said by the Security Council to be to enable it to discharge more effectively its responsibilities under the Charter, providing ‘members with an opportunity for a general exchange of views on the international situation, rather than for dealing with any particular question’.55 The Security Council took the view that such meetings ‘would normally be held in private, unless it is otherwise decided’.56 (p. 72) 3.18  The first such meeting, held on 21 October 1970 as part of the 25th anniversary celebrations of the UN, was not considered to be a success.57 This meeting was, formally speaking, the only periodic meeting ever held.58 While there has been a recent tendency of the Security Council to hold meetings at the Foreign Minister level (‘High-Level Meetings’) or, less frequently, at the level of Heads of State or Heads of Government (‘Summit Meetings’), these are not convened as periodic meetings under Article 28(2) of the UN Charter59 and do not meet the formal requirements of a periodic meeting.60 Nevertheless, they share with periodic meetings the element of an elevated level of representation.

4.3  High-Level and Summit Meetings 3.19  Since September 1985, a number of ‘High-Level’ Security Council meetings have been held where most Security Council member states were represented by their Ministers of Foreign Affairs (and, in some cases, by their Heads of State or Heads of Government). The practice has developed such that these High-Level Meetings have become commonplace, with an average of two or three occurring each year between 2000 and 2010.61 While the first such meeting attracted 13 Foreign Ministers of Security Council member states, as the number of such meetings has increased, the personal participation of

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Foreign Ministers has diminished. The Secretary-General generally attends such meetings personally. 3.20  On 31 January 1992, the Security Council met for the first time at the level of Heads of State and Heads of Government to consider an item entitled ‘The responsibility of the Security Council in the maintenance of international peace and security’.62 Since then, there have been several additional meetings at the level of Head of State or Head of Government, known as ‘Summit Meetings’, on a number of different issues.63 Where the Head of State or Head of Government is not available, he/she may be represented by the Minister of Foreign Affairs.

(p. 73) 4.4  Public nature 3.21  Meetings of the Security Council should be open to the public unless the Security Council decides otherwise.64 Although the number of private meetings has increased over the years, the vast majority of Security Council meetings remain public.65 3.22  The number of public meetings of the Security Council held annually has increased significantly over the years. In the 1950s there were, on average, fewer than 50 public meetings per year. Between 1991 and 2000, the average number of public meetings of the Security Council was over 100 annually. By 2001, the number of public meetings per year was consistently in excess of 150 annually.66 In 2014 the Security Council held 241 public meetings, and in 2015 it held 228.67

4.5  Open debates and open briefings 3.23  In 1994, citing a need for greater transparency in the functioning of the Security Council and an increase in reliance on public debate, France proposed the establishment of new types of meeting formats in which the Council would meet in public.68 At that time there was only one type of public meeting format in use,69 a traditional meeting, held with the aim of adopting a resolution,70 with much of the work of the Security Council taking place by means of informal consultations. After a debate on the issue, a Presidential Statement was issued in which the Security Council stated that there should be ‘an increased recourse to open meetings, in particular at an early stage in its consideration (p. 74) of a subject’.71 As a result, in 1995, ‘open debates’—also known as ‘orientation debates’ or just ‘debates’—were introduced.72 Their purpose is to encourage discussion by members of the UN, either around a general theme or early in the Security Council’s consideration of a particular matter.73 Open debates have become widespread. 3.24  In 1998, another form of meeting developed. In a 1998 Presidential Note, the Security Council, stressing the importance of transparency, ‘agreed that the Secretary-General is to be encouraged to make statements to the Council, when he deems it appropriate, in public meetings of the Council’.74 This type of meeting came to be known as an ‘open briefing’, and later simply as a ‘briefing’.75 The development of this format was significant, as briefings by the Secretariat had previously taken place during informal consultations.76 While all member states are entitled to attend open briefings, the right to speak is, in principle, limited to members of the Security Council.77 In 2001, almost 70 of the Security Council’s 159 public meetings consisted of open briefings and open debates.78 The remaining public meetings were predominantly devoted to adopting Council decisions.79

4.6  Meeting formats 3.25  In an effort to increase transparency, the Security Council, in 2006, by means of a Presidential Note,80 agreed that meetings should be structured according to various

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formats.81 For public meetings, the following four formats were set out, which may impact on a member state’s ability to participate: (p. 75) •  ‘Open debate’: Secretariat briefings may or may not be conducted, and Council members may deliver statements; non-Council members may also be invited to participate in the discussion upon their request; •  ‘Debate’: Secretariat briefings may be conducted, and Council members may deliver statements; non-Council members that are directly concerned or affected, or that have a special interest in the matter under consideration, may be invited to participate in the discussion upon their request; •  ‘Briefing’: Secretariat briefings are conducted, and only Council members may deliver statements following briefings; •  ‘Adoption’: Council members may or may not deliver statements before and/or after adopting, inter alia, resolutions and presidential statements; non-Council members may or may not be invited to participate in the discussion upon their request. 82 These four formats for public meetings—some of which were already in existence—were again set forth, in identical terms, in a 2010 Presidential Note, which updated and superseded the 2006 Note.83 In that Presidential Note, ‘the Security Council reaffirm[ed] its commitment to increase recourse to open meetings, particularly at the early stage in its consideration of a matter’, in order to increase transparency.84 3.26  While the Security Council’s annual report does not break down all public meetings into formats, it does reveal that public meetings of the Security Council frequently use the open debate, debate and briefing formats, in addition to the more traditional public meeting format, where a resolution is adopted.85 3.27  At public meetings of the Security Council, any member of the UN that is not a member of the Security Council may be present at its delegation’s designated seat in the Security Council Chamber.86 Official records of public meetings are provisionally published shortly after meetings and press releases are made available. All formats of public meetings take place in the Security Council Chamber.87

(p. 76) 4.7  Private meetings 3.28  Where the Security Council so decides, it may hold its meeting in private.88 Here, no official record is available and no press release is issued.89 However, the Security Council, through the Secretary-General, will issue a short communiqué after the meeting.90 Communiqués tend to be of limited value: they are generally only one page long and indicate in general terms the topic considered and which non-members of the Security Council (if any) had been invited to participate (without a vote). They tend to conclude with the following, rather obscure, phrase: ‘The members of the Council, [and certain of the participants] had an exchange of views.’91 3.29  The subject matter of private meetings of the Security Council includes, for example, discussions with states that contribute troops to UN peacekeeping operations (known as troop-contributing countries or ‘TCCs’)92 and briefings by the President of the International Court of Justice (ICJ). Discussions of recommendations regarding the appointment of the Secretary-General must be carried out in a private session.93 3.30  During/in private meetings, ‘briefings or debates may be conducted, and Council members may deliver statements’.94 In private meetings other than those involving TCCs, ‘any Member of the United Nations which is not a member of the Security Council, members of the Secretariat and other persons may be invited to be present or to participate in the discussion, upon their request’.95 In TCC meetings, the countries, agencies, or

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organizations that may be invited to be present differ from those at other private meetings.96 (p. 77) 3.31  Private meetings other than TCC meetings are held in the Security Council Chamber; TCC meetings are held in the United Nations Economic and Social Council (ECOSOC)/Trusteeship Council Chamber or the Conference Room.97

4.8  Informal consultations of the whole 3.32  The Security Council carries out much of its work through informal consultations of the whole—sometimes known as ‘closed meetings’—which feature only members of the Security Council. These are not to be confused with private meetings.98 The main difference between private meetings and informal consultations of the whole is that with the latter, the meetings are closed to all but Security Council member states; with the former, the meetings are closed to the public and media but non-members of the Security Council may attend in certain circumstances. 3.33  In the early years of the organization, most of the work of the Security Council took place in its public meetings in the Council Chamber.99 Over time, and, in particular since the end of the Cold War, informal consultations among members have taken on an increasing importance.100 From 1991 onward, the number of informal consultations of the whole increased faster than did the number of public meetings.101 Now there is almost no discussion of draft resolutions at formal Security Council meetings—with the discussion taking place by means of informal consolations of the whole—and the public meetings tend to last only a few minutes.102 3.34  In informal consultations of the whole only members of the Security Council are present; even states that are the objects of the consultations are not permitted to be present.103 Informal consultations of the whole take place in the Security Council Consultation Room.104 At these informal consultations the members consider (p. 78) agenda items, draft resolutions, and presidential statements, discuss procedural questions, and decide whether a proposed resolution is likely to be adopted if put to a vote.105 3.35  If requested, the Secretariat may provide the informal consultation of the whole with a briefing.106 The absence of a public record in the informal consultations, coupled with the perfunctory treatment of the issues in the Security Council Chamber, makes it very difficult to interpret the thinking of the drafters of the resolution and may raise transparency concerns.107 Members will sometimes make formal explanations of their votes (‘EOVs’) at the public meetings.108 However, these may provide little in the way of clarification.109 3.36  The use of informal consultations of the whole reached its high point in the mid-1990s, leading to complaints by non-members of the Security Council that that organ lacked transparency. Since that time, steps have been taken to address these concerns through the greater use of public meetings of a more informative nature.110 By 2001, matters had been modified such that the Security Council held fewer informal consultations of the whole than in the past and more formal meetings.111 In addition to the informal consultations of the whole, there are frequent consultations among smaller groups of member states. These include the ‘P5’—that is, the permanent members of the Security Council;112 the ‘P3’—that is, Western permanent members (the US, the UK, and France); the ‘non-aligned caucus’113—that is, members of the Security Council who are also members of the NAM; and the ‘non-non-aligned caucus’—that is, members of the Security Council not falling into one of the other three groupings mentioned.114

(p. 79) 4.9  Informal dialogues

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3.37  In 1996, the Security Council had an ‘informal meeting’ at which it was briefed by the President of Italy. In 2000 and again in 2006, it had informal meetings with the Chairman of the US Senate Committee on Foreign Relations. Since 2007, the Security Council has developed a practice of holding what it refers to as ‘informal meetings’ or ‘informal dialogues’, where it is briefed by a variety of actors, including, for example, the Minister of Foreign Affairs of a state, the Chair of the AU Commission, or the Commander of the Kosovo Force (KFOR).115 3.38  Depending on the year, there may be as many as six or seven such informal dialogues annually. The Security Council may, where it deems it appropriate, use informal dialogues in its communications with member states that are ‘parties to a conflict and/or other interested and affected parties’, or with ‘the chairs of country-specific configurations of the Peacebuilding Commission’.116 The Secretariat may also be invited to provide a briefing. 3.39  The informal dialogues take place in the Security Council Consultation Room. No official record is made of the meetings.117

4.10  ‘Arria-formula’ meetings 3.40  This format gets its name from the Venezuelan Ambassador Diego Arria, who initiated the practice in 1992 in his capacity as President of the Security Council. These meetings are ‘informal, confidential gatherings which enable Security Council members to have a frank and private exchange of views, within a flexible procedural framework’, with invitees, including high representatives of governments and international organizations, as well as non-state parties.118 According to the UN Secretariat, ‘Arria-formula meetings’ differ from informal consultations of the whole in the following respects: •  They do not constitute an activity of the Council and are convened at the initiative of a member or members of the Council. Participation in such meetings is for individual members to decide upon and there have been instances when some members chose not to attend; they are held in a Conference Room, and not in the Security Council Consultation Room. 119 (p. 80) •  The convenor issues a written invitation to the other fourteen members, indicating the place, date and time of the ‘Arria-formula meeting’, as well as the name of the party to be heard, by a fax from his/her Mission rather than by notification from the Secretariat. 120 •  They are not announced in the daily Journal of the United Nations.

121

•  Unless so invited, members of the Secretariat are not expected to attend, except for interpreters and a Conference Officer. 122 •  No official record is made of the meetings.

123

3.41  Since the first such meeting, an average of nine meetings have been held every year; in some years, there have been as many as 20.124 The Security Council, in 2006, 2010, and 2013, indicated its intention to plan and take part in ‘Arria-formula’ meetings.125

4.11  Missions 3.42  Since 1964, the Security Council has established numerous missions to visit various states or regions where international peace and security is under threat.126 The composition of these operations varies: before 1993 the missions were composed of representatives of three member states of the Security Council. From 1993–2000, the composition of the missions increased, such that representatives of seven or eight states were generally in attendance, including at least one permanent member state. Since 2001, a practice has developed whereby the missions are composed of representatives of all or nearly all member states. The Security Council has, on two occasions, established a mission that took place in conjunction with an ECOSOC Ad Hoc Advisory Group.127 The From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

representative of one or more of the participating member states is designated as head of mission.128 Missions generally take place over four to 10 days, depending on the number of countries to be visited.

(p. 81) 5.  Participation 5.1  UN member states that are not members of the Security Council 3.43  Any member of the UN that is not a member of the Security Council may be invited to participate in formal meetings—whether public or private129—if the Security Council considers its interests to be ‘specifically affected’ by the discussion.130 Participation is also provided for as regards a UN member state that is not a member of the Security Council where it brings a matter to the attention of the Security Council under Article 35(1) of the UN Charter.131 In each case, the invitation to participate is at the discretion of the Security Council.132 Where a member of the UN that is not a member of the Security Council ‘is a party to a dispute’ under consideration, it must be allowed to participate without vote in the meeting.133 When dealing with the desire of a UN member state (which is not a member of the Security Council) to participate in a meeting of the Security Council, the practice of the Security Council has been, where possible, to consider the state to be ‘specifically affected’ rather than a ‘party to a dispute’.134 Such an approach means that the Security Council has discretion as to whether or not the state may participate. Also, by not characterizing a matter as ‘a dispute’, the Security Council may avoid the limitation on the voting rights of Security Council member states who are ‘party to a dispute’.135 3.44  When non-members of the Security Council are invited to speak at Security Council meetings, ‘they will be seated at the Council table on alternate sides of the President, (p. 82) with the first speaker being seated on the President’s right’.136 These non-members may speak before Security Council members, if appropriate.137 Where a non-member of the Security Council is invited to participate, it may submit proposals and draft resolutions; however, such proposals or draft resolutions may only be put to a vote where a representative of the Security Council so requests.138 3.45  Only Security Council members may participate in informal consultations of the whole. Participation in informal dialogues and ‘Arria-formula’ meetings is by invitation of the Security Council only.139

5.2  Non-member states of the UN 3.46  Any non-member state of the UN that ‘is a party to a dispute’ under consideration by the Security Council shall be allowed to participate without vote in the discussion relating to the dispute.140 ‘The Security Council shall lay down such conditions as it deems just for [such] participation.’141 In certain instances, the Security Council has decided that a nonmember state should not be invited to participate, based on the non-member’s not genuinely being a ‘state’142 or lack of legitimacy.143 Moreover, the Security Council’s practice has been to characterize matters before it as ‘situations’ or ‘questions’, rather than ‘disputes’. This gives it greater flexibility as to whether it wishes to allow the non-member state to participate; in addition, it serves to avoid the limitation on the voting rights of Security Council member states who are ‘party to a dispute’.144

5.3  Secretariat 3.47  The Security Council ‘may invite representatives of the Secretary-General or other persons, whom it considers competent for the purpose, to supply it with information or to give other assistance in examining matters within its competence’.145 The Security (p. 83) Council may request an ad hoc briefing from the Secretariat, ‘in cases in which an emergent situation which justifies a briefing arises’.146 Whether the Secretariat provides a briefing will depend on which type of public meeting is to occur.147 A ‘briefing’ meeting involves the circulation of a briefing text by the Secretariat.148 An ‘open debate’ or ‘debate’, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

may involve a briefing by the Secretariat if requested.149 There is no briefing by the Secretariat at an ‘adoption’ public meeting.150 The Secretariat may be requested to conduct a briefing at private meetings, including TCC meetings.151 A briefing may be conducted at informal consultations of the whole, and in 2010 the Security Council expressed its intention ‘to request the Secretariat to give ad hoc briefings at informal consultations on a daily basis, if necessary, when a situation justifies such briefings’.152 Secretariat briefings may even occur at informal dialogues.153 Whilst it is possible, Secretariat briefings are usually not conducted during ‘Arria-formula’ meetings.154 3.48  As a general rule, the Security Council calls upon the Secretariat to provide ‘a printed fact sheet, presentation materials and/or any other relevant reference materials, whenever possible, to Council members on the day prior to the consultations, when briefings in the Security Council consultations room are not given on the basis of a written report’.155 Members of the Secretariat will sometimes offer initial remarks or ad hoc briefings to supplement and update reports of the Secretary-General.156 Moreover, the Secretariat may be consulted by the President of the Security Council to suggest ‘areas for Council members and the Secretariat to focus on at the Council’s next informal consultations’.157

5.4  Non-state entities 3.49  The question of the participation of a non-state entity, such the Palestinian Liberation Organization (PLO), in meetings of the Security Council is not dealt with in the UN Charter or the Provisional Rules of Procedure. An issue arose in December 1975, when the Security Council considered a proposal by Egypt for the participation of the PLO in a debate on the situation in the Middle East.158 The Security Council (p. 84) President had been asked to record that the proposal was not being put forward under SC Rules 37159 or 39,160 but that, if it were adopted by the Council, the invitation to the PLO to participate in the debate would confer on it the same rights of participation as were conferred when a member state was invited under SC Rule 37.161 By a vote of 9:3, with three abstentions, the proposal was adopted. From 1975 to 1988, requests for participation by the PLO were submitted by a member state, in accordance with the adopted proposal.162 3.50  In 1989, a request to participate in Security Council proceedings was directly submitted by the permanent observer of Palestine, rather than by a member state on behalf of the PLO. Once again, the request was not made pursuant to SC Rules 37 or 39, and once again it was noted that if it were to be approved, the Council would invite the permanent observer to participate with the same rights as granted under SC Rule 37.163 The US opposed the request, indicating that it should have been made under SC Rule 39, which, it said, provided the only legal basis for the participation of non-governmental entities such as the PLO. A resolution approving the request was passed by a vote of 11:1, with three abstentions.164

5.5  Others 3.51  The Security Council has recognized the importance of increasing consultation and cooperation with regional and sub-regional organizations, including by inviting them to participate in the Security Council’s public and private meetings where appropriate.165 By Security Council Resolution 1353,166 the Security Council stressed the importance of consultation with TCCs, and pledged to hold public or private meetings with them ‘in order to ensure a full and high-level consideration of issues of critical importance to a specific peacekeeping operation’.167 The Security Council’s practice is to hold TCC consultations one week before the Security Council considers mandate renewals or modifications, if possible.168

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(p. 85) 6.  Voting 6.1  Generally 3.52  Each member of the Security Council has one vote.169 Decisions of the Security Council on procedural matters require the affirmative votes of nine members; and decisions on ‘all other matters’ (or ‘non-procedural’ or substantive matters) require the affirmative votes of nine members, including the concurring votes of the permanent members.170 Obviously, the permanent five members have a disproportionate influence on nonprocedural matters owing to their veto power. 3.53  A ‘concurring vote’ has been interpreted by the ICJ to include an abstention.171 3.54  An ‘absolute majority of votes’ of the Security Council is required for it to vote on the election of judges to the ICJ.172

6.2  ‘Procedural’ versus ‘non-procedural’ 3.55  The term ‘procedural’ is not defined in the UN Charter.173 The question of whether or not a matter could be characterized as procedural has frequently been a subject of (p. 86) controversy before the Security Council, given the importance the characterization has on the voting requirements.174 Where such an issue arises, the Security Council may first vote to characterize a proposed decision175 (the ‘preliminary question’), and only once characterized, vote on the proposed decision itself (the ‘principal question’).176 This vote on the characterization of a proposed decision is not considered to be procedural and so it must be made by an affirmative vote of nine members, including the concurring votes of the five permanent members.177 This has led to the scenario of the ‘double veto’, whereby a permanent member state of the Security Council has the opportunity to veto an attempt to characterize a proposed decision as procedural and to subsequently veto the proposed decision itself.178 3.56  Of course, the nature of the matter may be revealed without the Security Council needing to hold a preliminary vote on whether or not the matter is procedural. Where a draft resolution receives the required nine affirmative votes but is voted against by a permanent member, it is clearly considered to be procedural in nature if it is (p. 87) adopted by the Security Council and to be non-procedural (or substantive) if it is not so adopted.179 Given the recent trend at the Security Council for draft resolutions to be adopted unanimously, the characterization of a resolution as procedural or substantive has become far less significant.180 In fact, during the period from 2004–7, there were no instances of voting on the preliminary question during the period under review.181

6.3  Obligation to abstain 3.57  Article 27(3) of the UN Charter provides that Security Council members who are ‘a party to a dispute’ must abstain from voting in decisions under Chapter VI and Article 52(3) of the Charter. In recent practice this provision has been ignored.182 The last time the issue arose of a party to a dispute voting was in 1992, when Libya (not a member of the Security Council at the time) called on France, the UK, and the USA not to participate in a vote lest their participation violate the provision.183 The USA and UK rejected Libya’s characterization of the situation as a dispute to which they were party; instead, they argued, it was a matter involving a threat to peace and security, and therefore of concern to all states.184 The fact that the draft resolution was adopted unanimously would appear to indicate that the Security Council favoured the interpretation of the UK and the US, and to suggest that the application of Article 27(3) is limited.185

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6.4  Consensus voting 3.58  Since the 1990s there has been a trend in the Security Council towards consensus voting.186 Resolutions are still adopted by vote, but almost all are adopted unanimously. In addition, there has been a significant increase in reliance on Presidential (p. 88) Statements, which are also adopted by consensus.187 Consensus among the Security Council members has come to be seen as an important goal by the Security Council, being viewed as adding to the authority of the resolution.188 While this trend may suggest a cooperative Security Council, it must be recalled that most of the negotiations take place outside the Security Council meeting room; as a result, the text being voted upon is frequently a watered-down version, engineered to be sufficiently inoffensive or ambiguous to garner the necessary support.189

6.5  Exercise of the veto 3.59  The number of times permanent members have exercised their veto powers is difficult to calculate precisely.190 A reliable authority places the number of proposals vetoed by permanent members of the Security Council in the period from 17 June 1946 to 1 May 2014 as being in the region of 254.191 Of these, 220 proposals were vetoed in public meetings (China 10, France 18, USSR/Russia 124, UK 30, and the US 83);192 two proposals were vetoed in private meetings (UK 1 and USSR/Russia 1);193 and 31 were exercised in private meetings, not recorded in official records and relating to the election of SecretariesGeneral (China 19, USSR/Russia 6, USA 5, and UK 1).194 3.60  Statistics show a significant decrease in the use of the veto power since the end of the Cold War: between 1946 and 1989, some 270 vetoes were cast (more than six per year); between January 1990 and March 2003, only 14 were cast.195 From 1945–99, the USSR/ Russia exercised its veto power 116 times, during a period when there were 212 draft resolutions that were vetoed.196 (p. 89) 3.61  One must be very cautious not to read too much into statistics indicating the use of the veto over the years. The numbers do not include the ‘virtual veto’197 (sometimes known as the ‘unofficial’, ‘non-public’, ‘hidden’, or ‘pocket’ veto), whereby disagreement at the informal consultation stage means that draft resolutions are never voted upon because the likely result of the vote is clear.198 Nor do the statistics include what some have described as the ‘collective veto’, whereby seven Security Council members abstain from voting on a draft resolution, thereby preventing it from obtaining the necessary nine votes for the non-procedural decision to be adopted.199 3.62  In 2002, the Security Council passed Resolution 1441 finding Iraq in further material breach of its 1991 ceasefire agreement.200 The Resolution, which offered the Iraqi Government a final opportunity to comply with its disarmament obligations through the operation of an enhanced weapons inspection regime,201 did not set forth an authorization for the use of force. British Prime Minister Tony Blair pledged that the UK would not engage in military action in Iraq absent another UN resolution that specifically authorized the use of force.202 He took the view, however, that if a draft resolution specifically authorizing the use of force were to be ‘unreasonably’ vetoed by another permanent member of the Security Council, he was entitled to use force even without a specific resolution to that effect.203 In testimony before the Chilcot Inquiry into the War in Iraq, Blair’s Attorney-General, Lord Goldsmith, distanced (p. 90) himself from the ‘unreasonable veto’ approach.204 Even assuming that the threat of the French (and Russians) to veto a second resolution could be characterized as ‘unreasonable’, any rule that allowed a member state to circumnavigate the Security Council when, in its view, one of the permanent

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members was exercising or threatening to exercise an ‘unreasonable veto’, has no basis in law.205 3.63  In 2011, a group of five smaller member states, the Small Five Group (‘S5’),206 presented a set of reforms on the Working Methods of the Security Council, inter alia, requesting that the P5 refrain from using the veto to block Security Council action aimed at preventing or ending war crimes, crimes against humanity, and genocide.207 While the draft resolution met with considerable support, it was withdrawn on 16 May 2012 in the face of opposition by the P5.208 In October 2013, the French Foreign Minister referred to a proposal that France had put to the General Assembly, whereby the P5 would agree to suspend their veto powers when a ‘mass crime’ was involved.209 The French representative reiterated this commitment during the debate at the General Assembly in 2016 and urged the rest of the permanent members of the (p. 91) Security Council to act in the same manner.210 In reply, the UK representative stated that his country ‘was committed to never vetoing a credible draft resolution on preventing or ending mass atrocities’.211

7.  Presidency 7.1  Generally 3.64  The Presidency212 of the Security Council rotates among its member states based on English alphabetical order,213 with each holding the office for one calendar month.214 The President’s functions include acting as chief officer of meetings of the Security Council and as representative of the organ in various capacities.215 At the same time the President of the Security Council is performing his/her ‘Presidential’ functions on behalf of the entire membership, he/she must continue to act as a representative of his/her government.216 In the former capacity, he/she is expected to act impartially; in the latter, he/she is expected to advance the positions of his/her government.217 This dual role may present something of a challenge.218 To reconcile the duality of functions, it has become the established practice of the Council over the years for the President to take the floor as the representative of his/her country after all other members inscribed on the speakers’ list have done so, and to make clear in what capacity he/she is speaking.219 Where the President decides not to preside over a question to which his/her government is directly connected, he/she may so indicate and the chair will devolve, for the purpose of that question, to the representative of the next member in English alphabetical order.220 In practice, the President rarely (p. 92) gives up his/her chair, regardless of how directly connected his/her state is to the issue in question.221

7.2  Role in meetings 3.65  Among the functions of the President of the Security Council in relation to Security Council meetings are the following: summoning meetings;222 approving the agenda223 and overseeing the monthly provisional programme (calendar);224 calling on representatives who wish to speak in a meeting;225 making rulings on points of order;226 deciding on the order in which amendments to a draft resolution or motion are to be voted on;227 dealing with corrections;228 and approving the official record.229 3.66  When a Security Council meeting takes place at the Heads of State or Heads of Government (a Summit Meeting), the Presidency is generally assumed by the Head of State or Head of Government of the country that is President of the Security Council. So, for example, on 24 September 2009 the President of the United States, Barack Obama, acted as President of the Security Council.230

(p. 93) 7.3  Representative functions

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3.67  In addition, the President is charged with representing the Security Council ‘in its capacity as an organ of the United Nations’.231 This may include representing the Security Council in its relations with other organs of the UN and with states.232 The President will also engage in monthly consultations with TCCs and groups of member states on the Security Council’s programme of work, including matters relating to peacekeeping.233 The President should provide briefings to member states after informal consultations, give informal briefings to member states on the programme of work after it is adopted by the Security Council, and interact with the Chairs of the subsidiary organs of the Security Council.234 After consultation, the President is charged with suggesting areas for the Secretariat to focus on at the Security Council’s informal consultations.235 3.68  The President of the Security Council may issue press statements,236 Notes,237 and Presidential Statements.238 Presidential Statements are made upon consensus of the full membership and all members are allowed to participate fully in their drafting.239 While Presidential Statements have a long tradition (going back to 1946),240 it is only in more recent times that they have come to be relied upon heavily by the (p. 94) Security Council.241 Their legal status may be debatable, but they do have a practical significance.242

7.4  Other functions 3.69  Since 1997, Presidents of the Security Council have prepared assessments of the work completed during their month in office in the form of a letter addressed to the subsequent President of the Security Council.243 These assessments outline the regional and thematic issues addressed during the one-month period. While the former Presidents of the Security Council are encouraged to consult with other members of the Security Council, the assessments are not considered to represent the views of the Security Council as a whole.244 In addition, the President may have an influence on the ‘themes’ or areas of focus pursued during the term of his/her office. 3.70  In 2001, the Security Council agreed that ‘wrap-up sessions’ at the end of the term of a President would increase transparency and accountably.245 These optional sessions, which were to ‘evaluate procedural and substantive aspects of its work during the month’, at first only involved the participation of Security Council members, but were later opened to all member states in some cases.246 They may be held in public or in informal consultations.247 After reaching a peak of five in 2003, wrap-up sessions decreased to a single session in 2005, after which no further sessions were held for several years.248 (p. 95) 3.71  Beginning in late 2012 there were several suggestions to revive the holding of wrap-up sessions, including from Iran, speaking on behalf of the NAM,249 the Nordic countries, and other member states that favoured increased accountability and transparency.250 In December 2012,251 the President of the Security Council suggested that formal wrap-up sessions be organized when appropriate, and in August 2013, voiced the Security Council’s commitment to ‘considering the methodology of wrap-up sessions and informal briefing sessions, recognizing that those sessions can be organized by the President of the Council’.252 Starting in 2013, the Security Council began to hold closed sessions253 under the agenda item ‘Implementation of Note S/2010/507’ at the end of some months at the invitation of the outgoing President, with the consent of the Security Council.254 While the Official Communiqué of the closed meeting merely describes an ‘exchange of views’ as taking place, without elaborating the content of the discussion, given the note on working methods of 12 December 2012, this appears to represent a resumption of the ‘wrap-up’ session.255

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8.  Functions 8.1  Organization-related 3.72  Like the General Assembly, the Security Council has certain functions that relate to the successful working of the UN, including those impacting upon the functioning of other principal organs. However, its role in this regard is smaller than that of the General Assembly. Included here are functions pertaining to membership (admission, suspension, restoration of privileges after suspension and expulsion),256 the (p. 96) appointment of the Secretary-General,257 the election of ICJ judges,258 the conditions on which a state that is not a member of the UN may become a party to the Statute of the ICJ,259 the calling of special and emergency special sessions of the General Assembly,260 the holding of a general review conference,261 and the amendment of the Charter262 and the Statute of the ICJ.263 The Charter frequently requires that these functions are exercised in conjunction with the General Assembly, often with the Security Council called on to make a recommendation that is subject to confirmation by a decision of the General Assembly.264 The Security Council is empowered to request an Advisory Opinion from the ICJ on any legal question265—though it has only done so once.266 It is required to submit annual and, when necessary, special reports to the General Assembly for its consideration.267

8.2  Peace and security 3.73  The work of the Security Council primarily relates to the maintenance of international peace and security268—an area in which the member states of the UN have granted it the primary responsibility within the organization.269 The discharge of its peace (p. 97) and security functions is carried out though the powers bestowed upon it under Chapter VI of the UN Charter, which deals with the ‘Pacific Settlement of Disputes’, Chapter VII, which deals with ‘Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression’, Chapter VIII, which deals with ‘Regional Arrangements’, and Chapter XII which deals with the ‘International Trusteeship System’.270 The role of the Security Council in relation to peace and security is discussed in detail in other chapters;271 what follows is a brief overview of the Security Council’s peace and security functions. 3.74  Its peace and security functions may conveniently be divided into the following categories: (i) disarmament; (ii) pacific settlement of disputes; (iii) enforcement (including peace and security agreements under Article 43 of the UN Charter); (iv) functions relating to strategic areas in a trusteeship agreement.

8.2.1  Disarmament 3.75  Article 47 of the UN Charter provides that in order to promote the establishment and maintenance of international peace and security with the least diversion for armaments of the world’s human and economic resources, the Security Council shall be responsible for formulating, with the assistance of the Military Staff Committee, plans to be submitted to member states for the establishment of a system for the regulation of armaments.

8.2.2  Pacific settlement of disputes 3.76  These powers, which are contained primarily in Chapter VI of the UN Charter,272 deal with disputes that are likely to endanger the maintenance of international peace and security, and/or situations that might lead to international friction or give rise to a dispute. It is clear that the disputes or situations to be addressed under Chapter VI are of a lesser order of gravity than the threats to the peace, breaches of the peace, or acts of aggression that are dealt with in Chapter VII. Chapter VI bestows a number of powers on the Security Council, which are generally viewed recommendatory only273 and which, therefore, envisage the cooperation of the parties involved in the (p. 98) disputes or situations at issue.274 Included here are powers to call upon parties to settle their disputes,275 powers to investigate,276 and powers to make recommendations to parties regarding appropriate

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procedures or methods of adjustment277 and appropriate terms of settlement.278 In addition, the Security Council is charged with encouraging the pacific settlement of local disputes through regional arrangements or by regional agencies.279

8.2.3  Enforcement 3.77  The drafters of the Charter have bestowed upon the Security Council certain, potentially binding enforcement powers so as to allow it to discharge its competence as primary guardian of international peace and security. The Security Council’s powers in this regard are set out in Chapter VII of the Charter.280 Its enforcement powers are twofold. First, it possesses a power to establish binding non-forceful measures, such as the imposition of economic sanctions, the severance of diplomatic relations, or the establishment of international criminal tribunals.281 Second, should it consider that nonforceful enforcement measures would be inadequate or have proved to be so, it may take forcible action as may be necessary to maintain or restore international peace and security.282 Under Article 53,283 the Security Council is charged with using, where appropriate, regional arrangements or agencies for enforcement action under its authority. 3.78  Another function of the Security Council may be described as being of a ‘judicial’ enforcement nature: if any party to a case before the ICJ fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the Security (p. 99) Council may make recommendations or decide upon measures to be taken to give effect to the judgment.284

8.2.4  Strategic areas in a trusteeship agreement 3.79  According to the UN Charter, other peace and security-related functions of the Security Council relate to its responsibilities as regards areas designated as ‘strategic’ areas in a trusteeship agreement,285 under the International Trusteeship System.286 The only trust territory designated as a ‘strategic areas’ was the trust territory of the Pacific Islands;287 however, in 1990, the Security Council determined that the applicability of the trust agreement had terminated with regard to certain of these Pacific Islands288 and in 1994, with the independence of Palau, the Security Council’s role in this regard came to an end.289

Footnotes: 1

  Art 25 of the Charter of the United Nations, 24 October 1945, 1 UNTS XVI (‘UN Charter’). 2

  UN Charter, Art 24(1).

3

  For a comprehensive account, see Tzanakopoulos, ‘Transparency in the Security Council’ in Transparency in International Law (eds Bianchi and Peters, 2013), 367. 4

  Hulton, ‘Council Working Methods and Procedures’ in The UN Security Council: From the Cold War to the 21st Century (ed Malone, 2004), 237, at 239. For an annual listing to 2006, see Lowe et al (eds), The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (2008), App 5, Table 1, 689. 5 

Wood, ‘Security Council Working Methods and Procedure: Recent Developments’ (1996) 45 ICLQ 150, at 151. 6 

UN Charter, Art 23(1).

7

  The permanent membership of the Republic of China was taken over by the People’s Republic of China in 1971, and the permanent membership of the USSR was taken over by Russia in 1991 after the dissolution of the USSR. See discussion at paras 3.08–3.09.

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8

  UN Charter, Art 23(1).

9

  ibid.

10

  As early as 1945–6, groups began to emerge in relation to filling the non-permanent seats on the Security Council. A loosely geographical system was adopted by the General Assembly, dividing most of the original member states into five groups: British Commonwealth (five states), Asia and the Mideast (eight), Latin America (20), Eastern Europe (five), and Western Europe (six). See Peterson, The United Nations General Assembly (2006), 44. A verbal understanding is thought to have been made among the Great Powers in 1946, according to which the six non-permanent seats—originally the Security Council was composed of 11 states, five permanent and six non-permanent members; see para 3.07—were to be distributed among these groups, such that two seats went to Latin American states and one to each of the other four groupings (Conforti and Focarelli, The Law and Practice of the United Nations (2010), 72). See also ch 2, ‘General Assembly’, section 5.2.4.1, ‘Security Council’. 11

  According to Geiger, there seems to be no special practice relating to maintenance of international peace and security, ‘perhaps because the criterion…has been completely neglected in favour of the criterion of an equitable geographical distribution’. See Geiger, ‘Article 23’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 751, at 755, para 16. The contribution of a member state to the maintenance of international peace and security has, however, been a relevant consideration in discussions relating to the expansion of the permanent membership (see discussion at section 2.2.2, ‘Current expansion issues’). 12

  See generally Malone, ‘Eyes on the Prize: The Quest for Nonpermanent Seats on the UN Security Council’ (2000) 6 Global Governance 3; Dreher et al, ‘The Determinants of Election to the United Nations Security Council’, CESifo Working Paper Series No 3902 (2012), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2137541. As noted in ch 2, ‘The General Assembly’, section 5.2.4.1, ‘Security Council’, where the General Assembly is presented with a ‘clean slate’ of candidates by a regional group—one that does not feature any competing candidates—the decision as to which candidate is to be elected is, in effect, taken by the regional group. 13

  Malone, n 12, 5–9. See also Kuziemko and Werker, ‘How Much is a Seat in the Security Council Worth? Foreign Aid and Bribery at the United Nations’ (2006) 114 Journal of Political Economy 905, at 905–6; also generally Dreher, Sturm, and Vreeland, ‘Development Aid and International Politics: Does Membership on the UN Security Council Influence World Bank Decisions?’ (2009) 88 Journal of Development Economics 1. 14

  Worth, ‘Saudi Arabia Rejects U.N. Security Council Seat in Protest Move’, New York Times (18 October 2013), available at http://www.nytimes.com/2013/10/19/world/ middleeast/saudi-arabia-rejects-security-council-seat.html. 15

  Art 108 of the UN Charter provides: ‘Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council.’ 16

  GA Res 1991 A (XVIII) (1963), para 1.

17

  ibid. States were called upon in the resolution to ratify the amendments by 1 September 1965 (ibid, para 2).

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18

  The nature of the equitable geographical distribution was set out as follows: ‘(a) Five from African and Asian States; (b) One from Eastern European States; (c) Two from Latin American States; (d) Two from Western European and other States’ (ibid, para 3). 19

  GA Res 2758 (XXVI) (1971).

20

  The resolution also expelled ‘forthwith the representatives of the Chiang Kai-Shek from the place which they unlawfully occupy at the United Nations and in all the organizations related to it’ (ibid). 21

  By a letter dated 24 December 1991 (not issued as a Security Council document), the Secretary-General requested the President of the Security Council to bring to the attention of the members of the Council the text of a letter of the same date from the representative of the USSR, transmitting to the Secretary-General a letter from the President of the Russian Federation. In his letter, the President of the Russian Federation informed the Secretary-General that the membership of the USSR in the UN, including its seat on the Security Council, would be continued by the Russian Federation, and requested the Secretary-General to consider that letter as confirmation of the credentials to represent the Russian Federation in the UN organs for all the persons currently holding the credentials of representatives of the USSR to the UN (UNSC RP (1989–92) Provisional Rules of Procedure, Rules 13–17, p 10). 22

  This was the case with the former republics of the Socialist Federal Republic of Yugoslavia—despite the Federal Republic of Yugoslavia, comprised of Serbia and Montenegro, indicating at the time its desire to take up the Socialist Federal Republic’s seat (Scharf, ‘Musical Chairs: The Dissolution of States and Membership in the United Nations’ (1995) 28 Cornell ILJ 29, at 52–65). For a discussion of UN membership in the aftermath of state succession, see Crawford and Boyle, ‘Opinion: Referendum on the Independence of Scotland—International Law Aspects’, Annex A in Scotland Analysis: Devolution and the Implications of Scottish Independence (presented to Parliament by the Secretary of State for Scotland by Command of Her Majesty) (February 2013), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/79417/ Scotland_analysis_Devolution_and_the_implications_of_Scottish_Independan...__1_.pdf. See also ch 8, ‘Membership’. 23

  In late December 1991, US President Bush announced the US would support Russia’s assumption of the USSR’s seat as a permanent member of the UN Security Council (Scharf, n 22, 46–7). 24

  For a discussion on the pressures to expand the Security Council, both in the early years and more recently in 2005 under Secretary-General Kofi Annan, see Luck, ‘Principal Organs’ in The Oxford Handbook on the United Nations (eds Daws and Weiss, 2008), 660. 25

  UN Doc A/61/47, Supp no 47, 14 September 2007, Annex II, p 9.

26

  GA Res 48/26 (1993). This group is said to be nicknamed ‘the never-ending committee’ (MacFarquhar, ‘Change will not Come Easily to the Security Council’, New York Times (8 November 2010), available at http://www.nytimes.com/2010/11/09/world/ 09nations.html). MacFarquhar quotes diplomats involved as indicating that those who attend the Committee meetings basically read their position papers and then leave without engaging in real ‘bartering’. 27

  UN Doc A/63/47, Supp no 47 (2008); UN Doc A/62/47, Supp no 47 (2008); UN Doc A/ 61/47, Supp no 47, 14 September 2007; UN Doc A/60/47, Supp no 47 (2006); UN Doc A/ 59/47, Supp no 47 (2005); UN Doc A/58/47/Corr.1, Supp no 47 (2004), Annex III [contains negative votes of permanent members]; UN Doc A/57/47/Corr.1, Supp no 47 (2003); UN Doc A/56/47, Supp no 47 (2002); UN Doc A/55/47, Supp no 47 (2001); UN Doc A/54/47, Supp no 47 (2000); UN Doc A/53/47, Supp no 47 (1999); UN Doc A/52/47, Supp no 47 (1998); UN

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Doc A/51/47/Corr.1, Supp no 47 (1997); UN Doc A/50/47/Rev.1, Supp no 47 (1996) UN Doc A/49/47, Supp no 47 (1995); UN Doc A/48/47, Supp no 47 (1994). 28

  Bühler, ‘Article 28’ in Simma et al (eds), n 11, 939, at 965, para 71.

29

  At its 57th session (2002) the General Assembly, for the first time, considered the Annual Report of the Security Council jointly with the agenda item ‘Question of equitable representation on and increase in the membership of the Security Council and related matters’ (UN RP Supp no 10 (2000–09) vol II, Art 15, para 3). ‘This practice was not repeated during the fifty-eighth session; however, from the fifty-ninth to the sixty-third sessions, the Assembly continued joint debates of the two agenda items’ (ibid). The item has been included in the agenda of the current session (71st) of the General Assembly (see UN Doc A/71/251*, 16 September 2016, item 122). 30

  GA Res 55/2 (2000), para 30.

31

  UN Doc A/59/565, 2 December 2004, para 1.

32

  High-Level Panel on Threats, Challenges and Change, ‘Report, A More Secure World: Our Shared Responsibility’ annexed to UN Doc A/59/565, 2 December 2004, paras 244–60. 33

  For example, the representative of the US in the 2009 General Assembly debate on Security Council reform stated that the US was open, in principle, to a limited expansion of the number of both permanent and non-permanent seats (UN Doc GA/10887, 13 November 2009, available at http://www.un.org/press/en/2009/ga10887.doc.htm). The Chinese representative is reported as having said that ‘China supported the Council’s aim to increase representation of developing countries, especially of those in Africa’ (ibid). The French representative took the view that reform ‘must take place in both categories of membership (ie both permanent and non-permanent), and take into account the emergence of new Powers that wanted permanent seats and were in a position to make important contributions to the Council’s ability to maintain international peace and security’. The French representative stressed, however, that the Security Council ‘should remain a “reasonable” size’ so as not to diminish its effectiveness. See UN Doc GA/10886, 12 November 2009, available at http://www.un.org/press/en/2009/ga10886.doc.htm. A statement by the representative of the Russian Federation during the annual debate in 2011 indicated that his delegation favoured making the body ‘representative’; however, it would prefer to keep the Security Council ‘compact—with no more than 20 members’ (UN Doc GA/11169, 9 November 2011, available at http://www.un.org/press/en/2011/ ga11169.doc.htm). The UK representative at the 2011 debate indicated that his country’s position had been clear for some time: it supported permanent membership for Brazil, India, Germany, and Japan, and permanent African presentation (ibid). 34

  In 2016, during meetings of the General Assembly, calls were reiterated for a comprehensive reform of the Security Council membership to better reflect the global changes that have occurred since the founding of the organization in 1946. The views of Security Council member states were mixed. The Russian representative was firm that his country would not support any change that would infringe upon the veto power of the permanent members. A similar statement was made by the US representative. The representative of the UK, and some other UN members, recognized that any expansion of the Security Council membership should take due consideration of the need for swift and effective functioning of the Security Council (see UN Doc GA/11854, 7 November 2016, available at https://www.un.org/press/en/2016/ga11854.doc.htm).

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35

  In 2009 the US representative indicated that his country was not open to enlargement through a Charter amendment that changed the veto structure (UN Doc GA/10887, 13 November 2009, available at http://www.un.org/press/en/2009/ga10887.doc.htm). 36

  Unless, of course, all permanent members gave up the veto—something that is highly unlikely. 37

  Brazil, India, Germany, and Japan—all wealthy, large, and influential states—have formed an alliance (referred to at the ‘G4’) to advance permanent membership for of these states. See at http://www.mofa.go.jp/fp/unp/page3e_000585.html: ‘The Ministers re-iterated their resolve to continue contributing to the fulfillment of the purposes and principles of the UN Charter and emphazised that the G4 countries are legitimate candidates for permanent membership and supported each other’s aspirations.’ In 2009 and again in 2011, France declared its support for the candidacies of Brazil, India, Germany, and Japan (see UN Doc GA/10886, 12 November 2009, available at http://www.un.org/press/en/2009/ ga10886.doc.htm and UN Doc GA/11854, 7 November 2011, available at https:// www.un.org/press/en/2016/ga11854.doc.htm). 38

  Representatives of the US and France have indicated that any consideration of permanent seats must take into account a country’s ability to contribute to the maintenance of international peace and security (UN Doc GA/10886, 12 November 2009, available at http://www.un.org/press/en/2009/ga10886.doc.htm; UN Doc GA/10887, 13 November 2009, available at http://www.un.org/press/en/2009/ga10887.doc.htm; and also, more recently, UN Doc GA/11854, 7 November 2016, available at https://www.un.org/press/en/2016/ ga11854.doc.htm). 39

  Various state representatives have called for a permanent African and/or Arab representation. 40

  In the 2011 annual debate, the representative of the Solomon Islands called for permanent seats for developing countries. She also advocated for a non-permanent seat for small island states (UN Doc GA/11169, 9 November 2011, available at http://www.un.org/ press/en/2011/ga11169.doc.htm). 41

  UN Charter, Art 30.

42

  They were adopted by the Security Council at its 1st meeting (17 January 1946), and amended at its 31st, 41st, 42nd, 44th, and 48th meetings, on 9 April, 16 and 17 May, 6 and 24 June 1946; 138th and 222nd meetings, on 4 June and 9 December 1947; 468th meeting, on 28 February 1950; 1463rd meeting, on 24 January 1969; 1761st meeting, on 17 January 1974; and 2410th meeting, on 21 December 1982. The most current version is Security Council, ‘Provisional Rules of Procedure of the Security Council’ (UN Doc S/96/Rev.7, 1983) (hereafter referred to as ‘SC Rule’ followed by the Rule number). Although the Provisional Rules of Procedure have not been amended since 1982, the Council has clarified and modified its working methods and procedures by notes of the President and other means. See UN Doc S/2013/515 28 August 2013; UN Doc S/2012/937, 17 December 2012; UN Doc S/2012/922, 12 December 2012; UN Doc S/2010/507, 26 July 2010; UN Doc S/2008/847, 31 December 2008; UN Doc S/2007/749, 19 December 2007; UN Doc S/2006/507, 19 July 2006; UN Doc S/2006/78, 7 February 2006 43

  Aust, ‘The Procedure and Practice of the Security Council Today’ in The Development of the Role of the Security Council (ed Dupuy, 1992), 365, at 365. See Dolzer and KreuterKirchhof, however, who observe: ‘[T]he Rules of Procedure can only be amended pursuant to the rules provided for this purpose, and…any currently valid Rules of Procedure must be observed at any time’ (Dolzer and Kreuter-Kirchhof, ‘Article 31’ in Simma et al (eds), n 11, 1050, at 1053, para 12). More generally, see Conforti, ‘The Legal Effect of Non-Compliance

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with Rules of Procedure in the UN General Assembly and Security Council’ (1969) 63 AJIL 479. 44

  UN Charter, Art 28(1). The term ‘continuously’ has not been taken literally. In the words of the representative of Egypt in his capacity as President of the Security Council in 1949: ‘The Charter states that the Security Council shall function continuously, but I imagine that no one assumes that we sit here day and night. Unless there is a call for a meeting, we do not meet’ (UNSC RP (1946–51) Provisional Rules of Procedure, Rules 1–5, p 11). 45

  While the term ‘ordinary meeting’ is not used in the UN Charter or the Provisional Rules of Procedure, it is used here to distinguish between the ‘ordinary’ meetings described at Art 28(1) of the UN Charter, at which the member states are represented by their permanent representatives, and the periodic meetings described at Art 28(2) of the Charter, at which the member states are represented by a member of the government or other ‘specially designated representative’. Periodic meetings are discussed in section 4.2. 46

  SC Rule 1 provides: ‘Meetings of the Security Council shall, with the exception of the periodic meetings referred to in rule 4, be held at the call of the President at any time he deems necessary, but the interval between meetings shall not exceed fourteen days.’ 47

  SC Rule 2 provides: ‘The President shall call a meeting of the Security Council at the request of any member of the Security Council.’ 48

  SC Rule 3 provides: ‘The President shall call a meeting of the Security Council if a dispute or situation is brought to the attention of the Security Council under Article 35 or under Article 11(3) of the Charter, or if the General Assembly makes recommendations or refers any question to the Security Council under Article 11(2), or if the Secretary-General brings to the attention of the Security Council any matter under Article 99.’ 49

  Sievers and Daws, The Procedure of the UN Security Council (2014), 193–236.

50

  UNSC RP (1946–51) Provisional Rules of Procedure, Rules 1–5, p 8.

51

  UN Charter, Art 28(3) and SC Rule 5. The Security Council has met outside New York on a number of occasions. In the early years meetings were held in London and Paris to coordinate with the General Assembly. In 1972, the Security Council held a session in Addis Ababa, Ethiopia, and the following year in Panama City, Panama. See Bühler, n 28, 978–9, paras 108–9. In May 1990, the Security Council convened in the UN Office at Geneva to debate the situation on the Occupied Arab Territories; it did so to avoid the controversy that had arisen in 1988 when the US had denied Yasser Arafat a visa to attend the General Assembly (ibid, para 110). 52

  For example, in September 2010, Turkey, in its capacity as President of the Security Council, proposed a thematic meeting of the Security Council on counter-terrorism, which was held on 27 September 2010 (UN Doc S/2010/462, 3 September 2010). For more on the Presidency, see section 7, ‘Presidency’. Some members of the Security Council have complained that thematic debates ‘were consuming too much of the Council’s energy and time and noted that thematic debates were sometimes proposed not so much out of concerns about international peace and security but rather because of [a member state’s] domestic political considerations or because a thematic debate provided an opportunity for the Council to be chaired by the country’s foreign minister thus garnering [a] considerable amount of both domestic and international media exposure. Some privately expressed the view that certain thematic debates risked turning the Council debate into a seminar or a workshop’ (Security Council Report, Special Research Report No 1: Security Council Working Methods—A Work in Progress?, 30 March 2010, available at http://

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www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.5906427/k.91B7/ Special_Research_Report_No_1brSecurity_Council_Working_MethodsA_Work_in_Progressbr30_March_2 ). 53

  Wood, n 5, 153.

54

  UN Charter, Art 28(2). The Rules of Procedure expand on this: SC Rule 4 provides that periodic meetings ’shall be held twice a year, at such times as the Security Council may decide’. 55

  UN Doc S/9835, 12 June 1970.

56

  ibid.

57

  Sievers and Daws, n 49, 39–41.

58

  Bühler, n 28, 968, para 79.

59

  Sievers and Daws, n 49, 40–1.

60

  For a discussion of the special characteristics of (formal) periodic meetings, see Bühler, n 28, 975–6, paras 94–9. 61

  ibid, 969, paras 82–5. See also ibid, 970–2, Table 5. ‘It is now fairly common for each Council member, during its presidency, to have a ministerial-level government official preside over at least one important meeting’ (Sievers and Daws, n 49, 41). 62

  UNSC RP (1989–92) Provisional Rules of Procedure, Rules 1–5, p 8. The SecretaryGeneral’s influential ‘An Agenda for Peace’ was drafted as a result of a request made by the Security Council at this meeting (GA/SC ‘An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-Keeping’, UN Doc A/47/277-S/24111, 17 June 1992). 63

  Sievers and Daws characterize the following meetings as ‘summits’: (2) UN Doc S/PV. 4194, 7 September 2000, Agenda item: ‘Ensuring an effective role of the Security Council in the maintenance of international peace and security, particularly in Africa’; (3) UN Doc S/ PV.5261, 14 September 2005, Agenda item: ‘Threats to international peace and security’; (4) UN Doc S/PV.5749, 25 September 2007, Agenda item: ‘Peace and security in Africa’; (5) UN Doc S/PV.6191, 24 September 2009, Agenda item: ‘Maintenance of international peace and security: Nuclear non-proliferation and nuclear disarmament’; (6) UN Doc S/PV.6389, 23 September 2010, Agenda item: ‘Maintenance of international peace and security: Ensuring the Security Council’s effective role in maintaining international peace and security’; and (7) UN Doc S/PV.6621, 22 September 2011, Agenda item: ‘Maintenance of international peace and security: Conflict prevention’ (Sievers and Daws, n 49, 41–3). The last meeting was only considered to be a summit by some; others considered it to be a ‘high-level meeting’ (ibid, 43). Sievers and Daws speak of ‘summit fatigue’ developing at or about 2010, and note that, by that time, fewer and fewer presidents and prime ministers attended (ibid). 64

  SC Rule 48. An exception to this rule is the discussion and decision on the recommendation to the General Assembly relating to the appointment of the SecretaryGeneral (ibid). 65

  From 1946–2000, the number of private meetings of the Security Council was generally less (and sometimes far less) than 10 per cent. While the percentage of private meetings has varied, since 2000 there have been years where a significant percentage of meetings were private: eg, in 2001, 17.6 per cent were closed to the public; in 2002, 23.1 per cent were private. This trend may be reversing however: in 2015, only 6.93 percent of the Security Council’s meetings were held in private. See, for a chart, http://www.un.org/en/sc/ repertoire/data/2001-2015%20Meetings%20and%20consultations.pdf. It should be noted

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that the numbers refer to formal private meetings and do not include informal consultations. 66

  See http://www.un.org/en/sc/repertoire/data/ 2001-2015%20Meetings%20and%20consultations.pdf. 67

  See http://www.un.org/en/sc/repertoire/data/ 2001-2015%20Meetings%20and%20consultations.pdf. 68

  UNSC RP (1993–95) Provisional Rules of Procedure, Rules 48–57, p 9. See also UN Doc A/49/667–S/1994/1279, 11 November 1994. The French proposals called for ‘(a) Orientation debates open to all Members of the Organization at a time when the Council was preparing to begin consideration of an important question; [and] (b) Public exchanges of views between members of the Council (where nonmembers of the Council could attend but not speak)’ (ibid). 69

  UN Doc A/49/667–S/1994/1279, 11 November 1994.

70

  Soltau, ‘The Right to Participate in the Debates of the Security Council’, ASIL Insight (October 2000). 71

  UN Doc S/PRST/1994/81, 16 December 1994.

72

  Sievers and Daws, n 49, 52.

73

  Soltau, n 70. He refers to the first meeting of the Security Council on AIDS in Africa on 10 January 2000 as a prime example of a meeting that took place under this expanded format. 74

  UN Doc S/1998/1016, 30 October 1998, para 1. This statement recalled an earlier Presidential Statement where the need for greater recourse to open meeting of the Security Council was identified (UN Doc PRST/1994/81, 16 December 1994). 75

  ibid. The first ‘open briefing’ was held on 10 November 1998, when the United Nations High Commissioner for Refugees briefed the Security Council. 76

  A typical example of an ‘open briefing’ would be assessments and reports by the staff of the Department of Peacekeeping Operations, which are a crucial part of the Council’s work. 77

  Soltau, n 70. He notes that practice is not uniform, and at times non-members of the Security Council are invited to speak. For example, at a briefing on the situation in East Timor, held on 27 June 2000, Australia, Brazil, Indonesia, Japan, New Zealand, Norway, Portugal, and the Republic of Korea—all non-members of the Security Council—were invited to participate and proceeded to make interventions (ibid). 78

  UN Doc S/2002/603, 6 June 2002, p 5, para 1.

79

  ibid and fn 3.

80

  UN Doc S/2006/507, 19 July 2006. The measures set out in the Annex to the Note represented the outcome of the negotiations of the Informal Working Group on Documentation and Other Procedural Questions. 81

  ‘During its 2008 chairmanship of the Working Group on Documentation and Other Procedural Questions, Panama attempted to get agreement on further systematising the formats for Council members. It compiled a chart mapping both the existing, well established, as well as newly emerging formats. For each format, the document provided details such as who is able to attend, whether or not official record is kept, who is able to intervene and what type of a venue the meeting is held in. But there was a strong reluctance especially among some permanent members to locking in possible meeting

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formats in such a precise way. No agreement was reached by the time Panama left the Council at the end of 2008’ (Security Council Report, n 52, 8). 82

  UN Doc S/2006/507, 19 July 2006, Annex, para 35(a)(iii).

83

  UN Doc S/2010/507, 26 July 2010. A 2013 Presidential Note builds upon the provisions of the 2010 Note with the aim of complementing them; however, it provides little new as regards the nature of Security Council meetings (UN Doc S/2013/515, 28 August 2013). 84

  UN Doc S/2010/507, 26 July 2010, para 28.

85

  According to the Annual Report of the Security Council for the period from 1 August 2014–31 July 2015, the Security Council held 267 formal meetings during that reporting period, of which 248 were public (UN Doc A/70/2 (2015), p 10). Of these, seven were identified as ‘open debates’. These included three open debates on children in armed conflict (September 2014 and March and June 2015), two open debates on the protection of civilians (January and May 2015), and two open debates on women and peace and security (October 2014 and April 2015). The Annual Report also makes several references to four ‘debates’ (rather than ‘open debates’) on the UN Interim Administration Mission in Kosovo (UNMIK) (August and December 2014 and February and May 2015). 86

  UN Doc S/2010/507, 26 July 2010, p 7, para 36(a)(ii).

87

  United Nations/Department of Public Information (UN/DPI), The Security Council: Working Methods Handbook (2011), Annexed chart. 88

  SC Rule 48.

89

  A single copy of the verbatim record of the meeting is held by the Secretary-General, and this is available for inspection and correction by representatives of the states that have participated in the meeting (SC Rule 51). 90

  SC Rule 55.

91

  See, eg, the communiqué issued after the Security Council met in closed session on Iraq on 10 November 2010 (UN Doc S/PV.6419, 10 November 2010). 92

  SC Res 1353 (2001), Annex II (A), para 1, on the strengthening of cooperation with troop contributing countries (TCCs), provided that the Security Council may hold public or private meetings with the participation of troop contributing states, ‘in order to ensure a full and high-level consideration of issues of critical importance to a specific peacekeeping operation’. 93

  SC Rule 48.

94

  UN Doc S/2006/507, 19 July 2006, p 8.

95

  ibid.

96

  The procedures for ‘TCC meetings’ are as follows: ‘[B]riefings may be conducted, and Council members may deliver statements; parties described in resolution 1353 (2001) are invited to participate in the discussion, in accordance with the resolution’ (ibid). SC Res 1353 (2001), Annex II (B), para 3, provides that the following parties will be invited to consultation meetings with TCCs: ‘(a) Countries contributing troops, military observers or civilian police to the peacekeeping operation; (b) Prospective troop-contributing countries as identified by the Secretary-General; (c) Relevant United Nations bodies and agencies, when they have specific contributions to make to the issue under discussion; (d) Other bodies and agencies, as observers, as appropriate; (e) Countries that make special contributions, such as other civilian personnel, contributions to trust funds, logistics, equipment and facilities and other contributions, as appropriate; (f) The host country/ countries, as observers, as appropriate; (g) The representatives of a regional or subregional

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organisation or arrangement contributing troops as appropriate; and (h) Regional organisations, as observers when not contributing troops, as appropriate’. 97

  Working Methods Handbook, n 87; Bühler, n 28, 946, Table 1.

98

  Though, confusingly, private meetings are also sometimes referred to as ‘closed meetings’. 99

  Aust, n 43, 366.

100

  Reflecting how entrenched these informal consultations have become, in the 1970s a small room was constructed near the Security Council Chambers to facilitate these discussions. The room was equipped for simultaneous interpretation into the UN’s six languages (Aust, Handbook of International Law (2010), 192). 101

  Krasno, The United Nations: Confronting the Challenges of Global Society (2004), 332.

102

  Aust, n 43, 366. See also Aust, n 100, 192; Tzanakopoulos, n 3, 371–2, speaks of ‘the clear separation between the (secret) initiative-stage and drafting-stage from the (still public) adoption-stage’ of Security Council resolutions. 103

  Aust, n 100, 192–3. This approach all but obviates the guarantee in Art 31 of the UN Charter that a member state that is not a member of the Security Council may participate, without vote, in the discussion of any question brought before the Security Council whenever the Security Council considers that the interests of that member are specially affected, and that in Art 32 providing that any member state that is not a member of the Security Council or any state that is not a member of the UN shall be invited to participate, without vote, in the discussion relating to a dispute if it is a party to a dispute under consideration by the Security Council. 104

  Working Methods Handbook, n 87, Annexed chart.

105

  Aust, n 100, 192. Aust describes the nature of the consultations as being ‘completely normal in diplomacy, or indeed in business and other fields’, and indicates that the absence of other UN members, the public, and the media facilitates the free expression of views (ibid). 106

  Working Methods Handbook, n 87, Annexed chart.

107

  Aust, n 100, 192; Tzanakopoulos, n 3, 371–2; Volger, ‘Mehr Transparenz und mehr Beteiligung: Die informelle Reform der Arbeitsmethoden des UN-Sicherheitsrats’ (2010) 5 Vereinte Nationen 195. 108

  At least one commentator has described EOVs as amounting to authoritative indications of the members’ intentions (Aust, n 100, 192). 109

  ibid. Aust gives the example of the EOVs relating to the adoption of SC Res 1441 (2002). The Chilcot Inquiry Report, analysing the EOVs relating to the adoption of SC Res 1441 (2002), reached the conclusion that ‘[m]any Member States, including the US and the UK, stressed that resolution 1441 did not provide “automaticity” for the use of force’. See Committee of Privy Counsellors, ‘The Report of the Iraq Inquiry’ (6 July 2016), Section 3.5, pp 346–51. 110

  See the discussion of the various formats of public meeting that came about from 1995 at sections 4.4–4.6. 111

  UN Doc S/2002/603, 6 June 2002, p 2.

112

  Wood, n 5, 153, notes that it is ‘something of a myth’ that the P5 hold a dominant role in the Security Council; on many issues the P5 and P3 are in significant disagreement.

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113

  See discussion of the Non-Aligned Movement (NAM) in ch 2, ‘The General Assembly’, section 5.3.4, ‘Bloc voting’. 114

  The term ‘P1’ is sometimes used to refer to the US; this reflects the view of many that it is currently the most powerful permanent member of the Security Council. 115

  Working Methods Handbook, n 87, Annexed chart.

116

  UN Doc A/65/2, Supp no (2010), pp 59–61.

117

  Working Methods Handbook, n 87, Annexed chart.

118

  Working Methods Handbook, Background Note on the ‘Arria-Formula’ Meetings of the Security Council Members at http://www.un.org/en/sc/about/methods/bgarriaformula.shtml. The involvement of non-governmental organizations (NGOs) and other non-state representatives was initially opposed by some of the permanent Security Council member states (Bühler, n 28, 958, para 50). 119

  Working Methods Handbook, Background Note on the ‘Arria-Formula’ Meetings of the Security Council Members at http://www.un.org/en/sc/about/methods/bgarriaformula.shtml. ‘Arria-formula’ meetings are held in the Conference Room or Permanent Missions of a Security Council member state (Working Methods Handbook, n 87, Annexed chart). 120

  Working Methods Handbook, Background Note on the ‘Arria-Formula’ Meetings of the Security Council Members at http://www.un.org/en/sc/about/methods/bgarriaformula.shtml. 121

  ibid.

122

  ibid.

123

  Working Methods Handbook, n 87, Annexed chart.

124

  For a list of ‘Arria-formula’ meetings see at http://www.securitycouncilreport.org/unsecurity-council-working-methods/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3CF6E4FF96FF9%7D/working_methods_arria_formula.pdf. 125

  UN Doc S/2006/507, 19 July 2006, para 54; UN Doc S/2010/507, 26 July 2010, para 65.

126

  As of 2010, the Security Council had undertaken some 47 missions in various parts of the world. For a listing of these missions between 1946 and 2010, as prepared by the UN Secretariat, see at http://www.un.org/en/sc/repertoire/data/ Missions%20of%20the%20SC%201946-2010.pdf. 127

  For the terms of reference of the joint Security Council/ECOSOC Ad Hoc Advisory Group on Haiti, see UN Doc S/2005/220, 4 April 2005. For the terms of reference of the joint Security Council/ECOSOC Ad Hoc Advisory Group on Guinea-Bissau, see UN Doc S/ 2003/525, 5 May 2003. 128

  For a complete list, see at http://www.un.org/en/sc/repertoire/data/ Missions%20of%20the%20SC%201946-2010.pdf. 129

  The provisions in the UN Charter and the Rules of Procedure permitting the Security Council to allow the participation without vote by interested parties that are not members of the Security Council can also be applied to private meetings (Hulton, n 4, 238). See paras 3.30 and 3.45. 130

  UN Charter, Art 31 and SC Rule 37.

131

  SC Rule 37. Art 35(1) of the UN Charter provides: ‘Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34 [ie, ‘any dispute, or situation which might lead to international friction or give rise to a dispute’], to the attention of the Security Council or the General Assembly.’

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132

  The procedure for extending an invitation to member states to participate requires the member state to request an invitation in a letter addressed to the President of the Security Council. These letters are not issued as official documents. Controversial requests for invitations are discussed and agreed upon among Security Council members prior to convening the meeting. At the meeting, the President then informs the Security Council of the receipt of the letters of request and proposes that invitations be extended ‘under the relevant provisions of the Charter and rule 37 of the Council’s provisional rules of procedure’, without making reference to the particular Article of the UN Charter that is the basis of the invitation (UNSC RP (2008–09) Provisional Rules of Procedure, Participation, p 303). Not all requests are granted. For example, in September 2008, the representative of Cuba, in his capacity as the Chairman of the Coordinating Bureau of the NAM, wrote to the President of the Security Council voicing his regret that the Security Council had refused a ‘legitimate’ request from the NAM to participate in a meeting concerning the situation in the Middle East, including the Palestinian question (ibid, p 304). 133

  UN Charter, Art 32.

134

  Dolzer and Kreuter-Kirchhof, n 43, 1054, para 16.

135

  See section 6.3, ‘Obligation to abstain’.

136

  UN Doc S/2010/507, 26 July 2010, para 34.

137

  ibid, para 31.

138

  SC Rule 38.

139

  Working Methods Handbook, n 87, Annexed chart.

140

  UN Charter, Art 32.

141

  ibid.

142

  In 1948, the Security Council decided that North Korea would not be invited to participate due to a lack of statehood. Instead it was invited to participate under SC Rule 39, which allows representatives of the Secretary-General or other persons, whom the Security Council considers competent for the purpose, to supply it with information or to give other assistance in examining matters within its competence (Dolzer and KreuterKirchhof, ‘Article 32’ in Simma et al (eds), n 11, 1064, at 1065, para 6). The majority of the Security Council would not allow the German Democratic Republic to participate in a discussion of the invasion of Czechoslovakia in 1968, ‘with reference to the lack of statehood of the territory occupied by the Soviet Union in Eastern Germany’ (ibid). Since 2007 the Security Council has extended invitations to representatives of Kosovo under SC Rule 39 by their names, rather than under SC Rule 37 (UNSC RP (2008–09) Provisional Rules of Procedure, Participation, p 308/1225). 143

  Rhodesia’s request to participate in a Security Council meeting in 1966 was rejected because of the illegality of the regime (Dolzer and Kreuter-Kirchhof, n 142, 1065, para 6). 144

  See section 6.3, ‘Obligation to abstain’. Zimmermann, ‘Article 27’ in Simma et al (eds), n 11, 871, at 923, paras 223 et seq. 145

  SC Rule 39.

146

  UN Doc S/2010/507, 26 July 2010, para 6.

147

  For types of public meetings, see para 3.25.

148

  Working Methods Handbook, n 87, Annexed chart.

149

  ibid.

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150

  ibid.

151

  ibid.

152

  UN Doc S/2010/507, 26 July 2010, para 7.

153

  Working Methods Handbook, n 87, Annexed chart.

154

  ibid.

155

  UN Doc S/2010/507, 26 July 2010, para 9.

156

  ibid, para 22.

157

  ibid, para 20.

158

  UNSC RP (1975–89) Provisional Rules of Procedure, Participation, p 54. The representatives of Guyana, Iraq, Mauritania, the United Republic of Cameroon, and the United Republic of Tunisia put forward the same proposal. 159

  SC Rule 37 deals with a state that is a member of the UN but not a member of the Security Council. 160

  See n 142 for the content of SC Rule 39.

161

  UNSC RP (1975–89) Provisional Rules of Procedure, Participation, p 54. Those in favour of an invitation being issued cited the special role of the PLO as recognized by the UN and the need to acknowledge its international status. They argued, in the absence of any procedural rule dealing with the situation, that the Security Council should allow the PLO to participate under no particular rule. Those opposed to the invitation argued that the UN Charter, the provisional rules, and established practice excluded issuing an invitation. SC Rule 37 provides for participation without vote. 162

  UNSC RP (1989–92) Provisional Rules of Procedure, Participation, p 58 and fn 29.

163

  ibid.

164

  ibid.

165

  UN Doc S/2010/507, 26 July 2010, para 32. See also GA Res 60/1 (2005) (‘World Summit Outcome’), para 170(a); and SC Res 1631 (2005). 166

  SC Res 1353 (2001).

167

  UN Doc S/2010/507, 26 July 2010, p 6, para 33. These meetings tend to be held in private. 168

  ibid.

169

  UN Charter, Art 27(1). See ch 10, ‘Voting’, particularly section 3, ‘Security Council’.

170

  UN Charter, Art 27(2) and (3). Before the composition of the Security Council was increased to 15 member states from 11, seven affirmative votes for procedural matters and seven affirmative votes were required including the concurring votes of the permanent members were required for all other matters. See section 2.2.1, ‘Historical’ regarding the change in size of the Security Council that entered into force in 1965. 171

  The ICJ rejected an assertion that a resolution of the Security Council was ultra vires because two permanent member states had abstained rather than providing ‘concurring votes’ as required in Art 27(3) of the UN Charter: ‘[T]he proceedings of the Security Council extending over a long period supply abundant evidence that presidential rulings and the positions taken by members of the Council, in particular its permanent members, have consistently and uniformly interpreted the practice of voluntary abstention by a permanent member as not constituting a bar to the adoption of resolutions….This procedure followed by the Security Council, which has continued unchanged after the amendment in 1965 of Article 27 of the Charter, has been generally accepted by Members

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of the United Nations and evidences a general practice of that Organization’ (Legal Consequences for States of the Continued Presence of South Africa in Namibia ICJ Rep 1971, p 22). See a discussion on this point and a listing of the relevant Security Council resolutions at Franck, Recourse to Force: State Action Against Threats and Armed Attacks (2002), 7–8. This may be compared to the situation with the General Assembly and ECOSOC. Rule 86 of the General Assembly Rules of Procedure (UN Doc A/520/Rev.17, April 2008) provides that for members to be considered to be ‘present and voting’, they must cast ‘an affirmative or negative vote; it does not include an abstention’. See also Rule 60(2) of ECOSOC’s Rules of Procedure (UN Doc E/5715/Rev.2 (1992)). See ch 2, ‘The General Assembly’, section 5.1, ‘Generally’ and ch 5, ‘The Economic and Social Council’. 172

  Art 10(1), ICJ Statute. According to Sievers and Daws, n 49, 598: ‘The practice has always been to interpret the words “absolute majority” as meaning a majority of the qualified electors, whether or not they vote. When the Security Council comprised eleven members, the absolute majority in the Council was six. Following the enlargement of the Security Council to fifteen members, the absolute majority has been eight.’ Art 10(2) of the ICJ Statute provides that the Security Council’s vote on the election of judges shall be taken without any distinction between permanent and non-permanent members of the Security Council. 173

  San Francisco Declaration, 7 June 1945, ‘Statement by the Delegations of the Four Sponsoring Powers on Voting Procedure in the Security Council’ XI United Nations Conference on International Organization (UNCIO) 710ff, Part I, para 2, sets out certain areas that were considered procedural and would be subjected, under the Yalta formula, to a procedural vote. 174

  Sands and Klein (eds), Bowett’s Law of International Institutions (2001), 1084.

175

  Apart from where a matter is clearly indicated as ‘procedural’ (Zimmermann, n 144, 904, para 142). 176

  Zimmermann notes that the practice of the Security Council is inconsistent on whether or not it votes first on the preliminary question or the principal question (ibid, 907, paras 152–4). According to one school of thought (primarily that of the USSR), it would be illogical and contrary to the wording of the UN Charter to consider the principal question before making a preliminary determination of its nature; another school of thought (supported by the other permanent members) argues that it is more efficient to vote on the principal question first, because where the vote results in a rejection or a qualified majority there is no need to inquire further (ibid). In 1950, when the Security Council was considering a complaint of an armed invasion of Taiwan, it was proposed that the representative of the People’s Republic of China be invited to participate in the discussion. The Republic of China, which at the time sat as a permanent member of the Security Council (see para 3.08), took the view that the proposal was non-procedural and therefore subject to its veto power; however, this reasoning was not accepted (ibid, 896, para 102). Sievers and Daws have drawn certain conclusions from the Security Council’s practice in this area: ‘First, although the San Francisco Statement (see n 173) listed certain matters which were to be regarded as procedural, in the actual practice of the Security Council during its early years this list was not seen as determinative. Rather, defining which matters were procedural had to be done on a case-by-case basis. Second, the “chain of events” rationale [whereby the need to consider the “preliminary question” would only arise with certain important decisions and actions of the Security Council, such as those likely to initiate a chain of events which might require the Security Council to invoke enforcement measures under Chapter VII, but not with decisions that were clearly procedural] showed itself in the early cases to be highly subjective, and therefore not decisive in determining whether a matter was procedural or substantive. Third, it is possible for the “preliminary question” to be voted on before or after voting has taken place on the main proposal. In

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some cases, members have preferred to await the outcome of the vote on the main proposal before raising the “preliminary question”, since the vote and the President’s interpretation of the results might obviate the need to take up the “preliminary question”. In other cases, some Council members have insisted on first taking up the “preliminary question” when it has seemed that the way members would vote might depend on whether the main question was regarded as a matter of procedure or of substance. Fourth, although some Presidents attempted to resolve the “preliminary question” through a presidential ruling, a general consensus developed among the Council members that the “preliminary question” was itself a substantive matter and therefore, if raised, should be decided by the Council as a whole through a vote.’ See Sievers and Daws, n 49, 326–7. 177

  See UN RP (1945–54) vol II, Art 27, paras 29–39 and pp 104–6.

178

  ibid.

179

  UNSC RP (1946–51) Provisional Rules of Procedure, Voting, p 143.

180

  UNSC RP (2004–07) Provisional Rules of Procedure, Voting, p 117.

181

  ibid, pp 117–19. In two instances, it was clear that the proposals must have been viewed as procedural (because they were voted against by a permanent member but still were adopted), and in six they must have been viewed as substantive (because they were voted against by a permanent member and, despite having the required nine votes, were defeated). 182

  See Milano, ‘Russia’s Veto in the Security Council: Whither the Duty to Abstain under Art 27(3) of the UN Charter?’ (2015) 75 ZöV 215, where he examines whether Art 27(3) has fallen into desuetude in view of the crisis in Crimea and the Russian veto on the draft resolution S/2014/189, 15 March 2014. 183

  UNSC RP (1989–92) Provisional Rules of Procedure, Voting, pp 91–2. The issue has not been raised in the Security Council since then (UNSC RP (2004–07) Provisional Rules of Procedure, Voting, p 120; UNSC RP (2008–09) Provisional Rules of Procedure, DecisionMaking and Voting, p 322/1225; UNSC RP (2010–11) Provisional Rules of Procedure, Decision-Making and Voting, p 328; UNSC RP (2012–13) Provisional Rules of Procedure, Decision-Making and Voting, p 70). 184

  The UK representative took the view that the matter was one of ‘the proper reaction of the international community to the situation arising from the failure of the Libyan Arab Jamahiriya…to respond effectively to the most serious accusations of State involvement in acts of terrorism’ (UNSC RP (1989–92) Provisional Rules of Procedure, Voting, pp 91–2). 185

  SC Res 731 (1992).

186

  Hulton, n 4, 237.

187

  ibid, 237–8. Presidential Statements are discussed at para 3.68.

188

  ibid.

189

  For example, SC Res 1441 (2002) was adopted by consensus. The meaning of that resolution and what was required before a use of force against Iraq was authorized has been the subject of much discussion. 190

  ‘Various statistics of vetoes cast have been compiled over the years, some limited to negative votes cast by permanent members on main proposals, and others also including negative votes by permanent members on separate parts of a draft resolution, on amendments, and/or on the “preliminary question”. Thus, depending on the scope of compilation, statistics on the statistics can vary significantly’ (Sievers and Daws, n 49, 313).

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191

  ibid, 311. For a chart listing details of each proposal vetoed, see ibid, 300–10. See also Security Council Report, The Veto, 2015, no 3 (19 October 2015) available at http:// www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3CF6E4FF96FF9%7D/research_report_3_the_veto_2015.pdf and, in particular, the charts associate therewith, at http://www.securitycouncilreport.org/atf/cf/ %7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/ P5%20and%20Use%20of%20the%20Veto.pdf, outlining the exercise of the veto from 1946 to 30 September 2015. 192

  Sievers and Daws, n 49, 311. Note that more than one permanent member state may cast a veto in relation to a proposal. 193

  ibid. Here the vetoing member states were unofficially identified (ibid).

194

  ibid, 312. As noted by Seivers and Daws, this category is ‘potentially less precise’ as it is reported by individuals (UN Secretaries-General in their memoirs and other senior officials) to have occurred in private meetings but not officially reported (ibid, 313). 195

  Hulton, n 4, 238–9.

196

  Lowe et al (eds), n 4, App 5, Table 2, 690.

197

  Aust, n 100, 195. According to Zimmermann, the veto power functions as the ‘sword of Damocles’, since the explicit or implicit threat by a member state that it is going to make use of this power seriously affects the decision-making process and the formulation of draft resolutions finally put to the vote (Zimmermann, n 144, 931, paras 267–8). 198

  For example, even though the Security Council had deemed the conflict in Kosovo in 1998 and 1999 to be a threat to regional peace and security (see, eg, SC Res 1199 (1998); SC Res 1203 (1998); and SC Res 1244 (1999)), it was evident, based on preliminary discussions, that the Russian and Chinese delegates would have vetoed a resolution authorizing the use of force. Evidently, in that case, ‘NATO decided that not asking for authorization was preferable to having it frustrated by veto, which might have complicated diplomatic efforts to address the crisis, and would have rendered consequent military action politically more difficult’ (Henkin, ‘Kosovo and the Law of “Humanitarian Intervention”’ (1999) 93 AJIL 824, at 825) 199

  Aust, n 100, 195. See also Zimmermann, n 144, 932, paras 268–72. Zimmerman describes this as a ‘group veto’ (ibid). See also Sievers and Daws, n 49, 316ff. The authors observed: ‘[T]he expression “hidden veto” is not accurate. The failure of a draft proposal to attain the requisite majority can occur in any decision-making body, and bears no equivalence to the “weighted voting” accorded to the permanent members under the UN Charter. Nevertheless, it is important to bear in mind that originally five, and now seven or more, Council members, acting in concert, numerically have the power to block decisions in the Council. In the context of the 1976 Israeli rescue of passengers from a hijacked aircraft which had landed at Entebbe, Uganda, the United Kingdom put forward a resolution which would condemn aerial hijacking. In the voting, two members abstained, while the Soviet Union and six others declined to participate in the vote. The draft resolution was thus defeated’ (ibid, 316–17 and fn 44, referring to UN Doc S/PV.1943, 14 July 1976, para 162). 200

  SC Res 1441 (2002).

201

  ibid, para 2. Para 4 provided that ‘false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq’s obligations’ to be reported to the Security Council. 202

  Byers, War Law: Understanding International Law and Armed Conflict (2005), 1.

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203

  ibid.

204

  Committee of Privy Counsellors, ‘The Iraq Inquiry: Statement by the Rt Hon Lord Goldsmith QC’ (4 January 2011), p 6, para 2.8 available at http://www.iraqinquiry.org.uk/ media/96134/2011-01-04-Statement-Goldsmith.pdf. 205

  White, ‘Decision-Making’ in Research Handbook on the Law of International Organizations (eds Klabbers and Wallendahl, 2011), 242; Johnstone, ‘When the Security Council is Divided: Imprecise Authorizations, Implied Mandates, and the “Unreasonable Veto”’ in The Oxford Handbook of the Use of Force in International Law (ed Weller, 2015), 227, at 247–8. On a somewhat related point, see Dissenting Opinion of Judge Alvarez in Competence of the General Assembly for the Admission of a State to the United Nations (Advisory Opinion) ICJ Rep 1950, p 12, at 20, who suggested that, as regards matters of admission at least, the General Assembly possessed a reviewing function, such that it could determine whether or not the Security Council’s power of veto had been abused. 206

  Composed of the following states: Costa Rica, Jordan, Liechtenstein, Singapore, and Switzerland. 207

  Bühler, n 28, 966, para 74. This proposal represented a revised approach to an earlier, 2006 initiative (ibid, para 73). 208

  Emch, ‘Swiss Withdraw UN Draft Resolution’, SWI, swissinfo.ch, 18 May 2012, available at http://www.swissinfo.ch/eng/politics/Swiss_withdraw_UN_draft_resolution.html? cid=32719648. In addition, the UN’s Senior Legal Adviser, Patricia O’Brien, issued a legal opinion on the issue of the required majority necessary for the adoption of the draft resolution, advising that a two-thirds majority was appropriate for the case at hand (ibid; see also http://www.innercitypress.com/OLA2PGAs5May.pdf). See also Bühler, n 28, 966–7, para 74. According to Tzanakopoulos, n 3, 382 and fn 79, the five permanent members of the Security Council ‘reacted angrily’ to the S5 proposal, and this sealed the fate of the draft resolution tabled in 2012; see also Volger, n 107. 209

  The Foreign Minister described France’s proposal as follows: ‘Our suggestion is that the five permanent members of the Security Council—China, France, Russia, Britain and the United States—themselves could voluntarily regulate their right to exercise their veto. The Charter would not be amended and the change would be implemented through a mutual commitment from the permanent members. In concrete terms, if the Security Council were required to make a decision with regard to a mass crime, the permanent members would agree to suspend their right to veto. The criteria for implementation would be simple: at the request of at least 50 member states, the United Nations secretary general would be called upon to determine the nature of the crime. Once he had delivered his opinion, the code of conduct would immediately apply. To be realistically applicable, this code would exclude cases where the vital national interests of a permanent member of the Council were at stake’ (Fabius, ‘A Call for Self-Restraint at the UN’, New York Times (4 October 2013), available at http://www.nytimes.com/2013/10/04/opinion/a-call-for-selfrestraint-at-the-un.html?_r=3&). 210

  UN Doc GA/11854, 7 November 2016, available at https://www.un.org/press/en/2016/ ga11854.doc.htm. 211

  ibid.

212

  See generally Sievers and Daws, n 49, 110–25.

213

  SC Rule 18.

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214

  ibid. During the period from 14 July to 2 September 1994, Rwanda, then a nonpermanent member of the Security Council, had no representation in the Security Council. By a presidential statement dated 25 August 1994, the Council decided to suspend the operation of SC Rule 18 so as to allow the presidency of the Security Council to be held in September 1994 by Spain (UN RP Supp no 9 (1995–99) vol III, Art 23, para 5). 215

  SC Rule 19 provides: ‘The President shall preside over the meetings of the Security Council and, under the authority of the Security Council, shall represent it in its capacity as an organ of the United Nations.’ 216

  See, generally, Blum, ‘The Presidency of the Security Council and the Duty of Impartiality’ in International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (ed Dinstein, 1989), 51–9. 217

  ibid, 51. See also Werners, The Presiding Officers in the United Nations (1967), 198.

218

  See Pogany, ‘The Role of the President of the U.N. Security Council’ (1982) 31 ICLQ 231, at 234. 219

  A practice has developed ‘whereby the President will preface the statements he or she makes as the representative of his or her country by the words “I shall now make a statement in my capacity as the representative of X” and on concluding the statement, the President will frequently announce: “I now resume my functions as President of the Security Council”’ (Blum, n 216, 52–3). 220

  SC Rule 20: ‘Whenever the President of the Security Council deems that for the proper fulfilment of the responsibilities of the presidency he should not preside over the Council during the consideration of a particular question with which the member he represents, is directly connected, he shall indicate his decision to the Council. The presidential chair shall then devolve, for the purpose of the consideration of that question, on the representative of the member next in English alphabetical order, it being understood that the provisions of this rule shall apply to the representatives on the Security Council called upon successively to preside.’ The President may not, however, be compelled to vacate the chair, even if some or all of the other members believe this to be for the best (Blum, n 216, 53). 221

  Blum, n 216, 54.

222

  SC Rule 1 provides: ‘Meetings of the Security Council shall, with the exception of the periodic meetings referred to in rule 4, be held at the call of the President at any time he deems necessary, but the interval between meetings shall not exceed fourteen days.’ Pogany notes that the President enjoys some limited discretion in this regard (Pogany, n 218, 232 and fn 4). 223

  SC Rule 7 provides that ‘[t]he provisional agenda…shall be drawn up by the SecretaryGeneral and approved by the President of the Security Council’. 224

  The President is also charged with making the monthly provisional programme publicly available. See UN Doc S/2010/507, 26 July 2010, paras 38–41. 225

  SC Rule 27. This is normally in the order in which they indicate their desire to speak. See also SC Rules 29 and 30). ‘The members of the Security Council agree that, as a general rule, the President of the Council should adhere to the prescribed speakers’ list. The members of the Security Council encourage the President to facilitate interaction by inviting any participant in the consultations to speak at any time, irrespective of the order of the prescribed speakers’ list, when the discussion requires it’ (UN Doc S/2010/507, 26 July 2010, para 24).

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226

  SC Rule 30. If the President’s ruling is challenged, it falls to the Council as a whole to decide on the matter. According to the English text of the Provisional Rules of Procedure, in the event of a challenge to the President’s ruling, it is the ruling of the President that must be put to a vote; whereas under the French text (which broadly corresponds to the Spanish and Chinese texts), it is the challenge that must be voted upon. In practice the French text has generally been followed (Pogany, n 218, 233). He observed (ibid): ‘Consequently, whereas nine votes are required to defeat a ruling of the President on a point of order, only seven votes are required in order to sustain the President’s ruling.’ 227

  SC Rule 36.

228

  SC Rule 52.

229

  SC Rule 53.

230

  UN Doc S/PV.6191, 24 September 2009.

231

  SC Rule 19.

232

  Pogany, n 218, 232. He gives the example of the President of the Security Council appealing to Iran and Iraq on behalf of the members of the Security Council to ‘desist from all armed activity and all acts that might worsen the dangerous situation and to settle their dispute by peaceful means’ in 1980 (ibid, 233). In representing the Security Council in its relations with other organs, the President meets, eg, with the President of the General Assembly to brief the latter on the work of the Council (see, eg, at https://www.un.org/en/ ga/president/68/news/01212014presidents_security_council_and_ecosoc.shtml). On 29 November, the International Day of Solidarity with Palestinian People, the President has represented the Security Council in the General Assembly (see Sievers and Daws, n 49, 122). 233

  UN Doc S/PRST/1994/22, 3 May 1994, p 3.

234

  UN Doc S/2010/507, 26 July 2010, para 3. The President should provide attending member states with copies of the statements that he/she makes to the media following informal consultations, if appropriate (ibid). 235

  ibid, paras 20–7.

236

  Press statements should be drafted in such a way that adequate participation of all members of the Security Council is allowed (ibid, para 42). For a comparison of press statements and Presidential Statements, see Talmon, ‘The Statements by the President of the Security Council’ (2003) 2 Chinese JIL 419, at 427–30). Note that press statements, which are made on behalf of the Security Council, may be contrasted to press briefings by the President; the content of the latter is largely left to the discretion of the President after discussions on its broad outline (Wood, n 5, 154). Press statements have no legal status at all (Talmon, above, at 449). 237

  For a partial listing of Notes by the President of the Security Council, see https:// www.un.org/sc/suborg/en/subsidiary/wgdocs/notes. The Security Council’s annual reports provide a listing of Notes by the President of the Security Council in Part I (XV). 238

  Since 1993, the Security Council’s annual reports provide a listing of Statements by the President of the Security Council in Part I (II). 239

  In a Note by the President of 19 July 2006, the members of the Council reaffirmed that all members of the Security Council should be allowed to participate fully in the preparation of, inter alia, Presidential Statements, and reaffirmed that their drafting should be carried

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out in a manner that would allow adequate participation of all members of the Council. See UN Doc S/2010/507, 26 July 2010, paras 41–3. 240

  Talmon, n 236, 420.

241

  ibid. Talmon notes that from 1946 to 1990 there were just 148 Presidential Statements (averaging fewer than four per year); from 1991–2000, 653 Presidential Statements were issued (averaging more than 50 per year) (ibid). 242

  Aust, eg, states that they are ‘not generally regarded as having the same status as a resolution’, and notes that they are typically ‘used to express the opinion of the Council on a matter which does not require the formality of a resolution’ (Aust, n 43, 370); cf Travernier, who likens presidential statements to Security Council resolutions in terms of their legal, political, and practical effects (Tavernier, ‘Les declarations du Président du “Conseil de Sécurité” (1991) 39 AFDI 86, as cited in Talmon, n 236, 421). Talmon concludes (at 458): ‘Although not a legally binding decision in the sense of Article 25 of the UN Charter, [a Presidential Statement] is not without legal implications. Its adoption by consensus ensures that it carries considerable political weight.’ 243

  In 1997, members of the Security Council agreed, inter alia, to attach as an addendum to the Annual Report to the General Assembly ‘brief assessments on the work of the Security Council, which representatives who have completed their functions as President of the Security Council may wish to prepare, under their own responsibility and following consultations with members of the Council for the month during which they presided’. See UN Doc S/1997/451, 12 June 1997, para 5. 244

  ibid.

245

  Security Council Report, Security Council Transparency, Legitimacy and Effectiveness, Special Research Report No 3 (18 October 2007), available at http:// www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.3506555/. 246

  UNSC RP (2000–03) Provisional Rules of Procedure, Rules 1–5, p 7.

247

  Security Council Report, n 245. When wrap-up sessions are held in informal consultations, only members of the Security Council are present. 248

  ibid. Part of the reason for their disappearance was ‘the disagreement they generated within the Council about the issue of involving non-members’ of the Security Council (ibid). According to a study prepared by the NGO, Security Council Report, ‘Over the years some Council members held informal briefings with the wider membership at the end of their presidency (for example, Brazil on 26 February 2011 and South Africa on 31 January 2012).’ See Security Council Report, ‘Update Report: Working Methods: Wrap-Up Sessions’ (25 February 2013), available at http://www.securitycouncilreport.org/update-report/workingmethods-wrap-up-sessions.php. 249

  During the open debate on working methods on 26 November 2012. See UN Doc S/PV. 6870, 26 November 2012; and UN Doc S/PV.6870/Resumption 1, 26 November 2012. 250

  Security Council Report, ‘Update Report: Working Methods: Wrap-Up Sessions’, n 248.

251

  UN Doc S/2012/922, 12 December 2012, para 15.

252

  UN Doc S/2013/515, 28 August 2013, para 2(i).

253

  Their private nature was contested. ‘Pakistan was initially keen to have the wrap-up session as a public briefing, but there were some Council members—in particular permanent members—that preferred to keep it to a private meeting format.’ Security Council Report, ‘Update Report: Working Methods: Wrap-Up Sessions’, n 248.

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254

  In 2013, sessions were held on 31 January (Pakistan), 28 February (Republic of Korea), 30 April (Rwanda), 30 May (Togo), 27 June (UK), 29 August (Argentina), and 29 October (Azerbaijan). Sessions were not held after the Russian Federation finished its presidency at the end of March, nor after the US finished its presidency at the end of July. 255

  The NGO, the Security Council Report, describes the meetings as ‘wrap-up’ sessions. See Security Council Report, ‘Update Report: Working Methods: Wrap-Up Sessions’, n 248. 256

  The provisions regarding admission, suspension, and expulsion (Arts 4, 5, and 6 of the UN Charter, respectively), involve a two-part process: a recommendation of the Security Council and a decision of the General Assembly. For a discussion of the General Assembly’s functions as regards the working of the UN, see ch 2, ‘General Assembly’, section 7.2, ‘Organization-related functions’. Issues relating to membership are considered in detail in ch 8, ‘Membership’. 257

  Art 97 of the UN Charter provides: ‘The Secretary-General shall be appointed by the General Assembly upon the recommendation of the Security Council.’ SC Rule 80 provides that ‘Any recommendation to the General Assembly regarding the appointment of the Secretary-General shall be discussed and decided at a private meeting.’ 258

  The Security Council’s role here is circumscribed, given that it must act alongside the General Assembly and based on a list of persons nominated by the Permanent Court of Arbitration; see Arts 4–12, ICJ Statute. In addition, the Security Council has the responsibility to fix the date of an election where a vacancy occurs (Art 14, ICJ Statute). 259

  Art 93(2) of the UN Charter provides that a non-member state may become a member to the ICJ Statute ‘on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council’. See also Art 35(2) of the Statute of the ICJ, which gives the Security Council the power to lay down the conditions under which the Court shall be open to non-member states. 260

  The power of the Security Council to convoke special sessions of the General Assembly is set out at Art 20 of the Charter. As to emergency special sessions, see GA Res 337 (V) (1950) (the ‘Uniting for Peace’) and the discussion in ch 2, ‘The General Assembly’, section 3.4, ‘Emergency special sessions’. 261

  UN Charter, Art 109(1) and (3).

262

  UN Charter, Arts 108 and 109(2).

263

  Art 69, ICJ Statute.

264

  One exception here is the Security Council’s role in deciding to restore the exercise of rights and privileges of a suspended member state; this power is held by the Security Council alone (UN Charter, Art 5). 265

  UN Charter, Art 96(1).

266

  By SC Res 284 (1970) it asked for an advisory opinion from the ICJ on the legal consequences for states of South Africa’s continued presence in Namibia; see Legal Consequences for States of the Continued Presence of South Africa in Namibia (Advisory Opinion) ICJ Rep 1971, p 16. 267

  UN Charter, Art 24(3).

268

  See discussion in chs 26, ‘Keeping the Peace’ and 27, ‘Peacekeeping and Other Peace Operations’. 269

  UN Charter, Art 24(1). The ICJ has observed that while the responsibility conferred is ‘primary’, it is not exclusive: ‘The Charter makes it abundantly clear…that the General Assembly is also to be concerned with international peace and security.’ It observed, however, that only the Security Council, which is given a power to impose an explicit obligation of compliance under Chapter VII, can require enforcement by coercive action From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

against an aggressor. See Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) ICJ Rep 1962, p 163. 270

  UN Charter, Art 24(2).

271

  In particular, see ch 26, ‘Keeping the Peace’ and ch 27, ‘Peacekeeping and Other Peacekeeping Operations’. 272

  Chapter VI also bestows a more limited dispute-settling role on the General Assembly under Art 35 of the UN Charter. 273

  Whilst it is true that Chapter VI decisions have rarely been considered mandatory, it must be recognized that there is scope for such a possibility. The ICJ has observed that Art 25, which obliges states to ‘accept and carry out the decisions of the Security Council’, ‘is not confined to decisions in regard to enforcement action but applies to “the decisions of the Security Council” adopted in accordance with the Charter’: Legal Consequences for States of the Continued Presence of South Africa in Namibia ICJ Rep 1971, p 53. See also Higgins, who took the view that nothing prevents the Security Council from taking binding decisions under Chapter VI if it clearly indicates an intention to do so: Higgins, ‘A General Assessment of United Nations Peace-keeping’ in United Nations Peace-Keeping: Legal Essays (ed Cassese, 1978), 1, at 4. 274

  Many consider a decision by the Security to establish fact-finding missions under Art 34 of Chapter VI to be binding on the state(s) to be visited. See Schweisfurth, ‘Article 34’ in Simma et al (eds), n 11, 1086, at 1103, para 42. 275

  UN Charter, Art 33.

276

  UN Charter, Art 34.

277

  UN Charter, Art 36(1). As regards this type of recommendation, the Charter provides that the Security Council should take into account that legal disputes should as a general rule be referred by the parties to the ICJ in accordance with the provisions of the Statute of the ICJ (UN Charter, Art 36(3)). 278

  UN Charter, Arts 37(2) and Art 38.

279

  UN Charter, Art 52(3).

280

  The key to unlocking the powers of the Security Council under Chapter VII is Art 39 of the Charter, which reads: ‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.’ For a discussion of how this has been applied in practice, see ch 26, ‘Keeping the Peace’, section 3, ‘The role of the Security Council’. 281

  UN Charter, Art 41. For a discussion of the Security Council’s practice as regards the imposition of non-forcible sanctions, see ch 26 ‘Keeping the Peace’, section 3.2 on ‘Sanctions’; see also ch 31, ‘Criminal Tribunals Established by, or in Relation with, the UN’ for discussion of the establishment of international adjudicative tribunals by the UN as a means of non-forcible enforcement. 282

  UN Charter, Art 42. For a discussion of the Security Council’ practice as regards the imposition of forcible sanctions, see ch 26, ‘Keeping the Peace’, section 3.3, ‘Force’. 283

  Located in Chapter VIII of the UN Charter.

284

  UN Charter, Art 94(2). Article 94(2) has been activated only once, namely in the case of Military and Paramilitary Activities in and against Micaragua (Nicaragua v USA) (Merits)

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ICJ Rep 1986, p 14. See generally Oellers-Frahm, ‘Article 94’ in Simma et al (eds), n 11, 1957, at 1966–71. 285

  Art 82 of the UN Charter provides for areas in a trusteeship agreement to be designated as strategic. See ch 4, ‘The Trusteeship Council’, particularly section 8, ‘Relations with other principal organs’. 286

  UN Charter, Art 83(1). Non-strategic areas fall to the Trusteeship Council under the supervision of the General Assembly. 287

  In SC Res 21 (1947), Art 1, the Security Council designated ‘The Territory of the Pacific Islands, consisting of the islands formerly held by Japan under the mandate in accordance with Article 22 of the covenant of the League of Nations’ as a strategic area and placed it under the Trusteeship System established in the Charter. 288

  The Federated States of Micronesia, the Republic of the Marshall Islands, and the Commonwealth of the Northern Mariana Islands all became fully self-governing (associated with the US) in 1990 (Res 683 (1990)). 289

  In 1994, the Security Council determined that the objectives of the trusteeship agreement had been fully attained and that the applicability of the trusteeship agreement had terminated with respect to Palau (SC Res 956 (1994)).

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Part 2 The United Nations: What it is, 4 The Trusteeship Council Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): Territory

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(p. 100) 4  The Trusteeship Council 1.  Introduction 4.01 2.  Membership 4.03 3.  Procedure and meetings 4.08 4.  Functions 4.11 5.  Objectives 4.12 6.  Trust territories 4.13 7.  Non-self-governing territories 4.23 8.  Relations with other principal organs 4.27 9.  Reform 4.28 Chowdhuri, International Mandates and Trusteeship Systems: A Comparative Study (1955); Crawford, The Creation of States in International Law (2007); Geiger, ‘Article 86’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), 1883; Jennings and Watts (eds), Oppenheim’s International Law, I: Peace (2008); Melnyk, ‘United Nations Trusteeship System’ in the Max Planck Encyclopedia of Public International Law (MPEPIL) (April 2013); Rauschning, ‘Article 75’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), 1841; Rauschning, ‘Article 77’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), 1861; Redgwell, ‘Reforming the United Nations Trusteeship Council’ in Reforming International Environmental Governance: From Institutional Limits to Innovative Reforms (eds Bradnee, Chambers, and Green, 2005), 178; Wilde, ‘Trusteeship Council’ in The Oxford Handbook on the United Nations (eds Daws and Weiss, 2008), 149.

1.  Introduction 4.01  Echoing the mandates system of the League of Nations,1 the Trusteeship Council was established as a principal organ of the UN and charged with responsibility for assisting in the administration and supervision of ‘trust territories’.2 It carried out (p. 101) this function in relation to 11 trust territories between 1946 and 1994. As noted by Secretary-General Annan, it ‘played a vital role in raising standards of administration in the trust territories and promoting the wider process of decolonization’.3 4.02  On 25 May 1994, the process of self-government or independence for the people of Palau—the last remaining trust territory—was completed.4 On 1 November 1994, the Trusteeship Council suspended its functioning.5 Despite calls for its dissolution,6 the Trusteeship Council remains in existence and continues to meet periodically; however, it does not carry on any substantive activity7 and is instead ‘reduced to a purely formal existence’.8 In 2005, the UN General Assembly called for the deletion of Chapter XIII of the UN Charter and of references to the Trusteeship Council in Chapter XII of the Charter.9 To date, no steps have been taken to implement this suggestion.

2.  Membership 2.1  Generally 4.03  When it was active, the Trusteeship Council consisted of between five and 14 member states. The UN Charter provides that the Trusteeship Council is to be composed of three groups: (a) member states that administered trust territories (‘administering members’);10 (b) the permanent members of the Security Council that were not administering members (‘non-administering members’); and (c) as many additional non-administering members as From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

necessary to ensure that there was parity between administering members and nonadministering members.11 Member states in the third group were elected by the General Assembly for three-year terms and could be re-elected. (p. 102) 4.04  The Trusteeship Council began functioning in 194612 with 10 members.13 It grew to 12 members in 194714 and to 14 members in 1955, its largest ever size.15 Beginning in 1960, as trusteeship territories began to become independent states, the size of the Trusteeship Council shrank, with administering members either leaving the Trusteeship Council or, in the case of permanent members of the Security Council, moving from group (a) membership to group (b) membership. On 27 April 1960, Togoland, under French administration, became independent. Although the size of the Trusteeship Council did not change—it was still composed of 14 members—parity between administering and non-administering members was not observed.16 On 1 July 1960, when Somaliland became independent, membership of the Trusteeship Council fell to 13, and parity continued to be unobserved.17 On 31 December 1961, the membership of the Trusteeship Council dropped to 10, and parity between administering and non-administering members was restored.18 On 1 July 1962, when Ruanda-Urundi became the separate states of Rwanda and Burundi, the composition of the (p. 103) Trusteeship Council dropped to nine and parity was, once again, lacking.19 This was remedied on 31 December 1962, when the membership of the Trusteeship Council fell to eight.20 4.05  On 31 January 1968, Nauru, which had been administered by Australia, New Zealand, and the UK, became independent. As a result, New Zealand ceased being on the Trusteeship Council entirely, and the UK ceased being an administering state (group (a)) and became a non-administering (group (b)) member by virtue of its permanent membership in the Security Council. For its part, Australia continued as an administering member as it also was Administering Authority for New Guinea. Because the only administering members at this point were Australia (New Guinea) and the US (Palau), and because there were four non-administrating members (China, France, USSR, and the UK), there was no way that parity between administering and non-administering members could be restored while retaining all of the permanent members of the Security Council.21 As such, the principle of parity was abandoned on the advice of the Legal Counsel.22 4.06  The membership of the last remaining group (c) member (Liberia) expired on 31 January 1968,23 and from that point the Trusteeship Council was composed of six members until the independence of New Guinea in September 1975, when Australia ceased its membership. From September 1975 until 1994, when Palau gained independence, the Trusteeship Council was composed of five members: the US in group (a) and the other permanent members of the Security Council in group (b).24 Currently, the Trusteeship Council is composed of five members—the five permanent member states of the Security Council—all in group (b).

2.2  Representation of China 4.07  In 1971, after the General Assembly passed a resolution indicating that the People’s Republic of China was the only lawful representative of China at the UN,25 the (p. 104) People’s Republic of China acceded to membership in the Trusteeship Council, replacing the representatives of the Republic of China.26 China took the Chinese seat at the Trusteeship Council at its 38th session (1971); however, beginning from the 39th session (1972), the representative of the People’s Republic of China did not participate in its deliberations.27 It was not until the 56th session of the Trusteeship Council in 1989 that China began to participate in the sessions again.28

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3.  Procedure and meetings 4.08  The UN Charter provides that the Trusteeship Council shall adopt its own rules of procedure,29 including the method of selecting its President. According to the 6th revision of its Rules of Procedure, the Trusteeship Council was to meet in two regular sessions each year, one convened in the latter half of June and the other in the latter half of November.30 4.09  Each member of the Trusteeship Council has one vote.31 Decisions are made by a majority of the members present and voting.32 4.10  In May 1994, corresponding with the completion of the process of self-government or independence for the people of Palau, the Trusteeship Council amended its rules of procedure (7th revision) so that it would meet as and where occasion may require, by decision of the Trusteeship Council, or by decision of its President, or at the request of a majority of its members, or at the request of the General Assembly, or at the request of the Security Council acting in pursuance of the relevant provisions of the Charter of the United Nations.33 Since May 1994, the Trusteeship Committee has met approximately every two years for a short, organizational meeting, the sole order of business at which is the (p. 105) appointment of the President and Vice-President34 and the adoption of a provisional agenda. The meetings tend to last between five and 10 minutes.35

4.  Functions 4.11  Under the UN Charter, the Trusteeship Council is charged with the following functions: •  assisting the Security Council, if so requested, with certain of its functions regarding strategic areas; 36 •  assisting the General Assembly with its functions regarding trusteeship agreements for areas designated as non-strategic (including the approval of trusteeship agreements and of their amendment); 37 •  considering reports submitted by the administering authority;

38

•  accepting petitions and examining them in consultation with the administering authority; 39 •  providing for periodic visits to the trust territories;

40

and

•  formulating a questionnaire on the political, economic, social, and educational advancement of the inhabitants of each trust territory, which shall form the basis of the annual report by the administering authority to the General Assembly. 41

5.  Objectives 4.12  Article 76 of the UN Charter provides that the basic objectives of the trusteeship system are: (a)  to further international peace and security; (b)  to promote the political, economic, social, and educational advancement of the inhabitants and their progressive development towards self-government or independence;

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(p. 106) (c)  to encourage respect for human rights and fundamental freedoms without any distinction based on race, sex, language, or religion; and (d)  to ensure equal treatment for all UN member states and their nationals. The promotion of the advancement of the inhabitants is said to be the ‘paramount obligation of the trustee powers’.42

6.  Trust territories 6.1  Categories 4.13  Article 77(1) of the UN Charter provides that the ‘trusteeship system shall apply to such territories in the following categories as may be placed there under by means of trusteeship agreements’. The categories include: (a)  territories previously held under a mandate under the Covenant of the League (‘territories now held under mandate’); (b)  territories detached from enemy states as a result of the Second World War; and (c)  territories voluntarily placed under the trusteeship system by states hitherto responsible for their administration.

6.2  Territories supervised 4.14  The General Assembly approved 10 territories formerly held as mandates, ie category (a) territories. 4.15  At its 1st session, in 1946, the General Assembly approved43 trusteeship agreements for eight former mandates; the administering authority (or authorities) is (or are) in parenthesis: 1.  New Guinea (Australia);

44

2.  Ruanda-Urundi (Belgium);

45

3.  The Cameroons under French mandate (France); 4.  Togoland under French mandate (France); 5.  Western Samoa (New Zealand); 6.  Tanganyika (UK);

46

47

48

49

(p. 107) 7.  the Cameroons under British mandate (UK); 8.  Togoland under British mandate (UK).

50

and

51

4.16  At its second session, in 1947, the General Assembly approved52 trusteeship agreements for the following former mandates: 1.  Nauru (Australia, New Zealand, UK); 2.  the Pacific Islands (US).

53

and

54

4.17  In 1950, the General Assembly approved one category (b) territory,55 the Trusteeship Agreement for Somaliland (Italy).56 4.18  No category (c) territories were proposed.57

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6.3  Entities that did not become trust territories 6.3.1  Transjordan and Palestine 4.19  With regard to the former mandated territory of Transjordan,58 the mandatory power, the UK, informed the General Assembly at its 1st session that it intended to establish the independence of that territory.59 At the General Assembly’s 2nd session, the question of the future status of the former mandated territory of Palestine was placed before the General Assembly by the mandatory power, the UK.60 The General Assembly adopted General Assembly Resolution 181 (II) (1947), recommending the establishment of a Jewish state, an Arab state, and an internationalized city of Jerusalem.

6.3.2  South West Africa (Namibia) 4.20  Controversially, South Africa proposed to incorporate into its union the territory of South West Africa,61 which South Africa had administered as a mandate. At its 1st session, the General Assembly declared that it was unable to accede to that incorporation, recommended that the territory be placed under the trusteeship (p. 108) system, and invited the Government of the Union of South Africa to propose for the consideration of the General Assembly a trusteeship agreement for the territory.62 Similar recommendations were contained in resolutions adopted at the 2nd, 3rd and 4th sessions of the General Assembly.63 Member states of the General Assembly were unable to agree on whether the provision at Article 77(1) of the UN Charter—which provides that ‘the trusteeship system shall apply to such territories [including “territories now held under mandate” in Article 77(1)(a)] as may be placed thereunder by means of trusteeship agreements’—was mandatory, thereby obliging South Africa to place South West Africa under the trusteeship system.64 4.21  Consequently, the General Assembly decided to request an Advisory Opinion from the ICJ.65 The Court indicated (unanimously) ‘that the provisions of Chapter XII of the Charter are applicable to the Territory of South-West Africa in the sense that they provide a means by which the Territory may be brought under the Trusteeship System’, and that (by eight votes to six) ‘the provisions of Chapter XII of the Charter do not impose on the Union of South Africa a legal obligation to place the Territory under the Trusteeship System’.66 The General Assembly accepted the Advisory Opinion and again invited South Africa to place South West Africa under the trusteeship system.67 In 1966, the General Assembly declared that South Africa had failed to fulfil its obligations as regards South West Africa and, as a result, terminated South Africa’s mandate over South West Africa.68

6.4  Administering authority 4.22  Article 81 of the UN Charter provides that ‘the authority which will exercise the administration of the trust territory … hereinafter called the administering authority, may be one or more states or the Organization itself’. While, as noted, there was one (p. 109) instance of three states acting as the administering authority,69 the UN itself has never acted in that role.70

7.  Non-self-governing territories 4.23  Chapter XI of the UN Charter is composed of Articles 73 and 74, and is entitled ‘Declaration Regarding Non-Self-Governing Territories’. Article 73 of the Charter provides that members of the UN ‘which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government’ have, ‘as a sacred trust’, obligations to promote the well-being of the inhabitants of these territories. The interests of a dependent territory’s inhabitants have priority over those of the colonial power. Article 74 of the Charter provides that the policy of UN member states as regards non-self-governing territories must be ‘based on the general principle of good-

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neighborliness, [with] due account being taken of the interest and well-being of the rest of the world, in social, economic and commercial matters’. 4.24  Non-self-governing territories are distinct from territorial administrations. They do not correspond with the states or territories where territorial administrations have been put in place. Moreover, what is envisaged under Chapter XI of the Charter is that UN member states will undertake responsibility for the administration of the dependent territories; unlike with territorial administrations, no role for the organization itself is envisaged. 4.25  At its 1st session, the General Assembly recognized 74 dependent territories, in addition to those to which Chapters XII and XIII apply (ie trusteeship territories). In 1960, the General Assembly passed a Declaration on the Granting of Independence of Colonial Countries and Peoples that dealt with trust and non-self-governing territories (GA Res 1514 (XV) 1960). In 1961, the General Assembly established the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence of Colonial Countries and Peoples, to monitor and implement the Declaration (GA Res 1654 (XVI) 1961—known as the Special Committee on Decolonization or ‘C-24’). It annually reviews the list of territories to which the Declaration is applicable and makes recommendations as to its implementation. 4.26  At the time of writing, 17 non-self-governing territories remain under the administration of five states.71 See Table 4.1.(p. 110) Table 4.1  Non-self-governing territories Territory

Listing as NSGT

Administering power

Land area (sq km)

Population

Since 1963

Spain72

266,000

586,000

AFRICA Western Sahara

ATLANTIC AND CARIBBEAN Anguilla

Since 1946

United Kingdom

96

15,700

Bermuda

Since 1946

United Kingdom

53.35

65,187

British Virgin Islands

Since 1946

United Kingdom

153

28,200

Cayman Islands

Since 1946

United Kingdom

264

58,238

Falkland Islands/ Malvinas

Since 1946

United Kingdom73

12,173

2,500

Monserrat

Since 1946

United Kingdom

103

5,000

Saint Helena

Since 1946

United Kingdom

310

5,765

Turks and Caicos

Since 1946

United Kingdom

948.2

36,689

United States Virgin Islands

Since 1946

United States

352

105,080

EUROPE

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Territory

Listing as NSGT

Administering power

Land area (sq km)

Population

Gibraltar

Since 1946

United Kingdom

5.8

33,140

American Samoa

Since 1946

United States

200

55,170

French Polynesia

1946–7 and since 2013

France

3,600

271,800

Guam

Since 1946

United States

540

159,358

New Caledonia

1946–7 and since 1986

France

18,575

268,767

Pitcairn

Since 1946

United Kingdom

35.5

39

Tokelau

Since 1946

New Zealand

12.2

1,411

PACIFIC

(p. 111) 8.  Relations with other principal organs 4.27  The Trusteeship Council is designated as one of the six principal organs of the UN; however, even when the Trusteeship Council was active, its status as a principal organ was largely in name only, given that the UN Charter required the Trusteeship Council to act under the authority of the General Assembly or the Security Council.74 The work of the Trusteeship Council was carried out under the authority of or at the request of the General Assembly for non-strategic areas,75 or the Security Council for strategic areas.76 With the exception of the Pacific Islands, all trust territories were designated as non-strategic. Article 91 of the UN Charter provides that the Trusteeship Council shall avail itself of the assistance of ECOSOC and the specialized agencies, where appropriate.

9.  Reform 4.28  After the Trusteeship Council finished its work in 1994, the General Assembly requested comments from member states on the Council’s future.77 Various suggestions have been made, though none has gained widespread support.78 One proposal was to bestow upon the Trusteeship Council the role of supervising and coordinating transitional administrations79 in cases where local actors are considered to be incapable (p. 112) of governing or are unwilling to govern.80 Given that Article 78 of the UN Charter provides that the trusteeship system shall not apply to territories that have become UN member states, and given that membership in the UN covers virtually all territory, it has been observed that attributing such a role to the Trusteeship Council would be difficult, if not impossible.81 4.29  Since 2005, when the UN General Assembly called for the deletion of Chapter XIII of the Charter and of references to the Trusteeship Council in Chapter XII of the Charter,82 reform proposals appear to have been all but abandoned.83

Footnotes: 1

  ‘At the End of the Second World War it was felt generally that the basic principles of the mandates system had stood the test of experience, that they were in conformity with the great humanitarian objects which official declarations and public opinion included among the major purposes of the War, and that they ought to be made an integral part of the new international organization of the United Nations. Accordingly, there was substituted for the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

mandates system a new machinery with a different name—that of trusteeship—but with essentially similar purposes’ (Jennings and Watts (eds), Oppenheim’s International Law, I: Peace (2008), 308). For an historical look at the development of the trusteeship system, and its link to the League of Nations’ mandate system, see Chowdhuri, International Mandates and Trusteeship Systems: A Comparative Study (1955), 13–36. 2

  See section 6 for a discussion of trust territories.

3

  Report of the Secretary-General, In larger freedom: towards development, security and human rights for all UN Doc A/59/2005, 21 March 2005, para 218. 4

  The Trusteeship Council recognized that the people of Palau had freely exercised their right to self-determination in a plebiscite and that the US had discharged its obligations as an Administering Authority (TC Res 2199 (LXI) (25 May 1994)). See also SC Res 956 (1994), where the Security Council determined, in light of the entry into force on 1 October 1994 of the new status agreement for Palau, that the Trusteeship Council had successfully completed the task entrusted to it under the Charter. Palau was admitted as a UN member state by GA Res 49/63 (1995). 5

  Geiger, ‘Article 86’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), 1883, at 1883, para 1. 6

  The Secretary-General called for the dissolution of the Trusteeship Council by Charter amendment (1994 48 UNYB 8, para 46). 7

  See UN RP Supp no 10 (2000–09) vol V, Art 90, p 2. See nn 77–83 and accompanying text.

8

  Report of the Secretary General, n 3, para 165.

9

  GA Res 60/1 (2005), para 176: ‘Considering that the Trusteeship Council no longer meets and has no remaining functions, we should delete Chapter XIII of the Charter and references to the Council in Chapter XII.’ 10

  In the early years, because Italy was the Administering Authority for Somaliland but, at the same time, not a member of the UN, issues regarding its participation in the work of the Trusteeship Council arose and the rules of procedure had to be modified (UN RP (1945–54) vol IV, Art 86, pp 313–15). 11

  Art 86 of the Charter of the United Nations, 24 October 1945, 1 UNTS XVI (‘UN Charter’). 12

  Because the elections of the group (c) member states could only take place after territories had been placed under the system by means of trusteeship agreements, the Trusteeship Council was not established until December 1946 (Rauschning, ‘Article 75’ in Simma et al (eds), n 5, 1841, at 1845, para 13; GA Res 64 (1) (1946)). 13

  In 1946, eight Trusteeship Agreements were approved by the General Assembly (GA Res 63 (I) (1946)), resulting in five administering members of the Trusteeship Council: Australia, Belgium, France, New Zealand, and UK (some administering members had authority over more than one territory.) The US, China, and the USSR became nonadministering members (ie group (b)). Because administering members (group (a)) outnumbered non-administering members (group (b)) by two, two non-administering members were elected by the General Assembly as group (c) (Iraq and Mexico). 14

  In 1947, when the USA became an Administering Authority (Palau), it moved from group (b) to group (a), necessitating the election of two new non-administering members in group (c) and increasing the Trusteeship Council’s membership to 12.

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15

  In 1950, the Trusteeship Agreement for Somaliland under Italian Administration was approved (GA Res 442 (V) (1950)). However, since Italy was not a member of the UN at the time, it did not become a member of the Trusteeship Council; instead it was given the right to participate without a vote in matters relating to Somaliland (UN RP (1945–54) vol IV, Art 86, pp 313–15). When, on 14 December 1955, Italy gained membership in the UN, it joined the Trusteeship Council as an administering member; as a result, a corresponding nonadministering member was added in group (c) and the Trusteeship Council increased to 14 member states. 16

  On 27 April 1960, France ceased being an administering member, but remained a member of the Trusteeship Council by virtue of its permanent membership in the Security Council. As a result, there were six administering (or group (a)) members (Australia, Belgium, Italy, New Zealand, the UK, and the US) and eight non-administering members (China, France, USSR in group (b), and Bolivia, Burma, India, Paraguay, and the United Arab Republic in group (c)) (UN RP Supp no 3 (1959–66) vol III, Art 86, p 218). 17

  On 1 July 1960, Italy withdrew from the Trusteeship Council upon Somaliland’s becoming independent. From that point until 31 December 1961, the Trusteeship Council continued without any additional change in composition, ie with five administering and eight non-administering states (UN RP Supp no 3 (1959–66) vol III, Art 86, pp 215–18). 18

  Parity was restored on 31 December 1961 on the expiry of the membership of two group (c) member states. From that point, the Trusteeship Council was composed of five administering members (Australia, Belgium, New Zealand, the UK, and the US) and three non-administering states who were members by virtue of their permanent membership in the Security Council (China, USSR, and (now) France); as such, only two group (c) nonadministering members were required and the membership dropped to 10 (ibid, p 219). 19

  Belgium withdrew from the Trusteeship Council as Ruanda-Urundi became the separate states of Rwanda and Burundi (ibid). 20

  The membership of two states in group (c) expired (Bolivia and India) and the membership was reduced to eight: four group (a) members (Australia, New Zealand, the UK, and the US); three group (b) members (China, USSR, and France); and one newly elected group (c) member (Liberia) (ibid). 21

  UN RP Supp No 4 (1966–69) vol II, Art 86, pp 257–8.

22

  [1967] UN Juridical YB 330. It held, in part: ‘Continuance of a permanent majority of non-administering members on the Council will render inoperative sub-paragraph 1 c. of Article 86, as the conditions it was designed to meet, namely an excess of administering Powers over non-administering Powers in the Council, is unlikely to recur. The practical result will be that supervision of the administration of Trust Territories based on an equal balance on the Council between administering and non-administering members will disappear and will be replaced by supervision effected under a permanent majority of nonadministering members.’ (ibid, at 331) 23

  UN RP Supp no 4 (1966–69) vol II, Art 86, p 257.

24

  UN RP Supp no 9 (1995–99) vol V, Art 86, p 2.

25

  GA Res 2758 (XXVI) (1971).

26

  UN RP Supp no 5 (1970–78) vol IV, Art 86, p 153.

27

  ibid, p 157.

28

  UN RP Supp no 8 (1989–94) vol V, Art 86, p 3.

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29

  UN Charter, Art 90(1). Trusteeship Council, ‘Rules of Procedure of the Trusteeship Council’ (UN Doc T/1/Rev.7, 1995) (hereinafter ‘TC Rule’ followed by the relevant rule number). Where the version of the Rules of Procedure in existence before the current version is referred to, the Rule number is followed by the designation ‘Rev.6’. 30

  Rule 1 Rev.6. Provision was made for special sessions to be held as required at the request of the Trusteeship Council, a majority of its members, the General Assembly, or ‘the Security Council acting in pursuance of the relevant provisions of the Charter’ (TC Rule 2 Rev.6). In addition, a special session may be requested by ECOSOC or any member of the Trusteeship Council; however, this request must be approved by a majority of the members of the Trusteeship Council before such a session is called (TC Rule 3 Rev.6). 31

  UN Charter, Art 89 (1); TC Rule 34. Members who abstain shall not be counted as present and voting (TC Rule 35). 32

  UN Charter, Art 89(2).

33

  Trusteeship Council, ‘Amendment of the rules of procedure of the Trusteeship Council’, Res 2200 (LXI) (25 May 1994), Annex. 34

  In all cases, the representative from either the UK or France has been elected President by acclamation, and the representative from either the UK or France (whichever is not holding the position of President) has been acclaimed as Vice-President. 35

  UN RP Supp no 10 (2000–09) vol V, Art 90, p 4. See also UN News Centre, ‘Trusteeship Council Elects President, Vice-President of Seventieth Session, Adopts Provisional Agenda’ (UN Doc TR/2432, 11 December 2015), available at https://www.un.org/press/en/ 2015/tr2432.doc.htm. 36

  UN Charter, Art 83(3).

37

  UN Charter, Art 85(1).

38

  UN Charter, Art 87(a).

39

  UN Charter, Art 87(b).

40

  UN Charter, Art 87(c).

41

  UN Charter, Art 88.

42

  Jennings and Watts (eds), n 1, 309, para 91.

43

  GA Res 63 (I) (1946).

44

  Gained independence 1975 and joined with the non-self-governing territory of Papua to form the state of Papua-New Guinea. 45

  Gained independence 1962 as the two separate states of Rwanda and Burundi.

46

  Gained independence 1960 and became the Republic of Cameroon.

47

  Gained independence to form Togo in 1960.

48

  Gained independence in 1962.

49

  Gained independence in 1961; joined with Zanzibar in 1964 and became the United Republic of Tanzania. 50

  Gained independence as Cameroon in 1960; in 1961, the northern territory united with Nigeria and the southern territory united with the Republic of Cameroon. 51

  United with the Gold Coast (administered by the UK) to form Ghana, 1957.

52

  GA Res 140 (II) (1947).

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53

  Gained independence in 1968 as Nauru.

54

  The Federated States of Micronesia, the Republic of the Marshall Islands, and the Commonwealth of the Northern Mariana Islands all became fully self-governing (associated with the US) in 1990; Palau became fully self-governing in 1994. 55

  GA Res 442 (V) (1950).

56

  Gained independence 1960, joined with British Somalia (a protectorate) to form Somalia. 57

  UN RP (1945–54) vol IV, Art 77, p 163.

58

  ‘Transjordan belonged to the mandate territory of Palestine, but was separated as a “special” territory on 25 May 1925’: Rauschning, ‘Article 77’ in Simma et al (eds), n 5, 1861, at 1862, para 4. 59

  UN RP (1945–54) vol IV, Art 77, p 162.

60

  ibid.

61

  See discussion in Jennings and Watts (eds), n 1, 300–7, para 88.

62

  GA Res 65 (l) (1946).

63

  GA Res 141 (II) (1947), GA Res 227 (III) (1948), and GA Res 337 (IV) (1949).

64

  UN RP (1945–54) vol IV, Art 77, p 164.

65

  GA Res 338 (IV) (1949). The question was as follows: ‘What is the international status of the Territory of South West Africa and what are the international obligations of the Union of South Africa arising therefrom, in particular: (a) Does the Union of South Africa continue to have international obligations under the Mandate for South West Africa and, if so, what are those obligations? (b) Are the provisions of Chapter XII of the Charter applicable and, if so, in what manner, to the Territory of South West Africa? (c) Has the Union of South Africa the competence to modify the international status of the Territory of South West Africa, or, in the event of a negative reply, where does competence rest to determine and modify the international status of the Territory?’ 66

  International Status of South-West Africa (Advisory Opinion) ICJ Rep 1950, p 144.

67

  GA Res 449 (V) (1950).

68

  GA Res 2145 (XXI) (1966). South Africa claimed that the General Assembly was acting ultra vires; however, the ICJ, in the Namibia Advisory Opinion, held that the General Assembly had lawfully exercised its powers (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (Advisory Opinion) ICJ Rep 1971, p 47). 69

  Nauru was administered by Australia, New Zealand, and the UK.

70

  ‘Although no trust territories have been placed under administration by the UN, provision has sometimes been made in other treaties to take account of the possibility: see eg Art XIII of the Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties 1969 (TS No 77 (1975)’ (Jennings and Watts (eds), n 1, 310, para 92, fn 3). To some, the UN’s governance role in relation to certain territorial administrations has been said to resemble the UN’s acting as an administering authority; as is discussed in ch 27, ‘Peacekeeping and other Peace Operations’, this analogy is approximate only. 71

  See at http://www.un.org/en/decolonization/nonselfgovterritories.shtml. All data are from UN Secretariat 2016 Working Papers on Non-Self-Governing Territories (NSGTs) and,

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for Western Sahara,from UNdata (http://data.un.org/), a database of the UN Statistics Division of the Department of Economic and Social Affairs, United Nations. 72

  ‘On 26 February 1976, Spain informed the Secretary-General that as of that date it had terminated its presence in the Territory of the Sahara and deemed it necessary to place on record that Spain considered itself thenceforth exempt from any responsibility of any international nature in connection with the administration of the Territory, in view of the cessation of its participation in the temporary administration established for the Territory. In 1990, the General Assembly reaffirmed that the question of Western Sahara was a question of decolonization which remained to be completed by the people of Western Sahara’ (at http://www.un.org/en/decolonization/nonselfgovterritories.shtml#foot1). 73

  ‘A dispute exists between the Governments of Argentina and the United Kingdom of Great Britain and Northern Ireland concerning sovereignty over the Falkland Islands (Malvinas) (see ST/CS/SER.A/42)’ (ibid). 74

  The Trusteeship Council ‘functions, practically, like the Commission which was a subsidiary organ to the League Council, as an auxiliary organ of the General Assembly and the Security Council’ (Chowdhuri, n 1, 182). ‘The Trusteeship Council is intended to be an auxiliary organ of the General Assembly as well as of the Security Council’ (Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (1950), 669) See also Conforti and Focarelli, who described it as, effectively, ‘[a] subsidiary organ of the General Assembly’ (Conforti and Focarelli, The Law and Practice of the United Nations (2010), 138). 75

  Art 85(1) of the UN Charter provides: ‘The functions of the United Nations with regard to trusteeship agreements for all areas not designated as strategic, including the approval of the terms of the trusteeship agreements and of their alteration or amendments, shall be exercised by the General Assembly.’ Art 85(2) of the Charter recognizes a role for the Trusteeship Council: ‘The Trusteeship Council, operating under the authority of the General Assembly, shall assist the General Assembly in carrying out these functions.’ Art 16 of the Charter vests in the General Assembly non-strategic trusteeship functions. 76

  Art 83(1) of the Charter provides: ‘All functions of the United Nations relating to strategic areas, including the approval of the terms of the trusteeship agreements and of their alteration or amendment, shall be exercised by the Security Council.’ A role for the Trusteeship Council (‘the Security Council shall … avail itself of the assistance of the Trusteeship Council’) is recognized in Art 83(3). 77

  GA Res 50/55 (1996).

78

  Crawford notes that Malta sought a review of the role of the Trusteeship Council, on the basis that it might be assigned new responsibilities, including environmental stewardship and management of international common areas such as outer space and the seabed beneath international waters. However, relatively little support from governments was received. Crawford, The Creation of States in International Law (2007), 601. 79

  See ch 27, ‘Peacekeeping and other Peace Operations’, section 7 ‘United Nations Transitional Administrations’. 80

  See Melnyk, ‘United Nations Trusteeship System’ in MPEPIL (April 2013), para 2, who speaks of a ‘plethora of proposals’ to reactivate the trusteeship regime; he observes that ‘due to hardly surmountable political and legal restraints these initiatives have led nowhere’. Crawford notes that various proposals have emerged over the years calling for the trusteeship system ‘to cope with so-called “failed States”, or with the restructuring of

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States after major conflict’. He gives the examples of proposals for arrangements of this kind for Cambodia, Bosnia and Herzegovina, and East Timor (Crawford, n 78, 600–1). 81

  Crawford describes Art 78 of the UN Charter as ‘a major legal difficulty’, noting that the prohibition would appear to apply not only to the whole territory of member states but to parts of their territory, thus excluding situations such as Kosovo (Crawford, n 78, 601). 82

  GA Res 60/1 (2005), para 176.

83

  Wilde ‘Trusteeship Council’ in The Oxford Handbook on the United Nations (eds Daws and Weiss, 2008), 149, at 157. However, commentators periodically suggest that the Trusteeship Council be given a modified role: see, eg, a more recent call for Syria to be placed under the Trusteeship Council system (Kraus, ‘A Radical Win-Win Solution for Syria: Syria has become a failed state. Now it’s time for the UN to treat it like one’, 29 October 2015, available at http://fpif.org/a-radical-win-win-solution-for-syria/); or the proposal that the Council may have a role to play in international environmental governance for natural resources that constitute ‘common concern of humankind’ (Redgwell ‘Reforming the United Nations Trusteeship Council’ in Reforming International Environmental Governance: From Institutional Limits to Innovative Reforms (eds Bradnee, Chambers, and Green, 2005), 178).

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Part 2 The United Nations: What it is, 5 The Economic and Social Council Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): Sustainable development — International organizations

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(p. 113) 5  The Economic and Social Council 1.  Introduction 5.01 2.  Membership, procedure, and voting 5.04 3.  Functions 5.21 4.  Meetings and programme of work 5.30 5.  Participation in meetings 5.37 6.  ECOSOC’s relationships with the other principal organs 5.48 7.  Areas of competence 5.59 8.  Reform 5.65 Aston, ‘The United Nations Committee on Non-Governmental Organizations: Guarding the Entrance to a Politically Divided House’ (2001) 12 EJIL 943; Breen, ‘The Neccessity of a Role for the ECOSOC in the Maintenance of International Peace and Security’ (2007) 12 JCSL 261; Chaitidou, ‘Article 67’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1728; Chaitidou, ‘Article 72’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1816; Chesterman, Johnstone, and Malone, Law and Practice of the United Nations: Documents and Commentary (2016); Delbez, ‘Les pouvoirs du Conseil économique et social’ in Études en l’honneur de Georges Scelle (1950), 212; Franda, The United Nations in the Twenty-First Century: Management and Reform Processes in a Troubled Organization (2006); Ghébali, ‘Aux origines de l’Ecosoc: l’évolution des commissions et organisations techniques de la Société des Nations’ (1972) 18 AFDI 469; Hobe, ‘Article 71’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1788; Hüfner and Spröte, ‘Zur Reform des Wirtschafts- und Sozialbereichs der Vereinten Nationen’ in Die Reform der Vereinten Nationen (ed Hüfner, 1994), 99; Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems (1964); Kunig and Tietje, ‘Article 64’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1709; Kunig and Tietje, ‘Article 65’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1718; Kunig and Tietje, ‘Article 66’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1723; Landwehr, ‘Article 69’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1772–78; Meltzer, ‘Restructuring the United Nations System: Institutional Reform Efforts in the Context of North–South Relations’ (1978) 32 International Organization 993; Meng, ‘Article 60’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1658; Riedel and Arend, ‘Article 55 (c)’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1565; Röben, ‘Article 61’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1667; Röben, ‘Article 62’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1678; Rosenthal, ‘Economic and Social Council’ in The Oxford Handbook on the United Nations (eds Daws and Weiss, 2008), 136; Rucz, Le Conseil Économique et Social de l’ONU et la Coopération pour (p. 114) le Développement (1983); Schermers and Blokker, International Institutional Law: Unity within Diversity (2011); Seidel (1995) 33 Archiv des Völkerrechts 21; Stoll, ‘Article 55 (a) and (b)’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1535; Trauttmansdorff, ‘The Origins of the United Nations’ in The United Nations: Law and Practice (eds Cede and Sucharipa-Behrmann, 2001), 25; Zamora, ‘Economic Relations and Development’ in The United Nations and International Law (ed Joyner, 1997), 232.

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1.  Introduction 5.01  Whilst the Economic and Social Council (ECOSOC or ‘the Council’) has not been without its successes over the years,1 it has, more than any other principal organ, been the object of relentless criticism and attempts at, sometimes radical, reform.2 Among the impediments to its successful functioning have been its size (considered by some to be too large and by others not to be large enough),3 its ambiguous relationship with the General Assembly (including an overlapping of subject areas),4 and the fact that, as regards its activities in relation to economics, it operates in the shadow of the powerful institutions created at Bretton Woods5 and certain aspects of its social activities are dealt with by other international organizations or specialized agencies. (p. 115) 5.02  The League of Nations had no parallel organ for economic and social matters;6 however, a ‘Central Committee for Economic and Social Questions’ in the League was proposed in the 1939 ‘Bruce Report’.7 Though the findings of the Bruce Report were never implemented, the importance of economic and social well-being—and the link between that well-being and the maintenance of international peace—would appear to have been in the minds of the drafters of the UN Charter.8 According to the travaux préparatoires of the UN Charter: The scope of the Organisation was…broadened to include functions which would enable the Organisation to eradicate the underlying causes of war as well as to deal with crises leading to war. Under the Economic and Social Council the Organisation would deal with economic and social problems.9 5.03  The fact that ECOSOC emerged as one of the UN’s six principal organs,10 despite having originally been proposed as a subsidiary organ of the General Assembly,11 may be a reflection ‘of the importance of economic and social cooperation and the priority attached to economic reconstruction’.12 However, the fact that ECOSOC operates under the authority of the General Assembly in almost all of its activities—and the General Assembly’s clear willingness to micromanage ECOSOC—suggests that its status as a principal organ may be of limited significance.13

(p. 116) 2.  Membership, procedure, and voting 2.1  Size 5.04  Originally ECOSOC was composed of 18 member states.14 However, in December 1963, the General Assembly, recognizing that the increase in UN membership made enlargement of ECOSOC necessary, called for an amendment to the UN Charter to increase membership of the Council from 18 to 27.15 This amendment entered into force on 31 August 1965.16 ECOSOC was further expanded to a membership of 54 on 12 October 1973, when a 1971 General Assembly resolution amending the UN Charter entered into force.17 With this second enlargement of ECOSOC, the General Assembly enshrined equitable geographic distribution for the whole membership of the Council.18 5.05  Calls for the universalization of ECOSOC membership have been made over the years, but no agreement has been reached on the issue.19 5.06  It has been argued by some that ECOSOC was more efficient in its early days when it had fewer member states. However, it has also been argued that until (p. 117) ECOSOC’s membership becomes open to all UN member states, plenary bodies like the General Assembly and its Main Committees20—which have a subject-matter overlap with ECOSOC21 —will be considered more legitimate by some states.22

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2.2  Election of members 5.07  Members of ECOSOC are elected by the General Assembly by a two-thirds majority23 for three-year terms, with 18 members being elected annually.24 The five permanent members of the Security Council are almost permanently represented in ECOSOC, despite there being no legal provision to this effect.25 5.08  An issue arose in 1961, when the General Assembly elected only five of the six members it was called upon to elect under Article 61.26 With some members arguing that decisions taken in such circumstances would be open to challenge, the Office of Legal Affairs joined the discussion. The matter was dealt with on an informal basis, with the Acting President of ECOSOC appealing to the President of the General Assembly to fill the membership vacancy on an expedited basis.27 In 1983, legal advice was sought as to what would happen if the General Assembly was temporarily unable to elect a member of ECOSOC.28 The legal advice was that in such a scenario ECOSOC would be ‘imperfectly constituted until the election is completed’, but that ‘any decisions taken by the Council while thus imperfectly constituted would still be valid decisions—though, in the first instance, this is a matter for the Council itself to consider’.29

(p. 118) 2.3  Subsidiary organs 5.09  Article 7(2) of the UN Charter provides that ECOSOC, as a principal organ, is able to establish such subsidiary organs as may be necessary.30 Moreover, Article 68 gives ECOSOC a particular power to set up commissions in economic and social fields, for the promotion of human rights, and as may be otherwise required for the performance of its functions. ECOSOC’s Rules of Procedure provide that it ‘may establish and define the composition and terms of reference of: a) Functional commissions and regional commissions; b) Sessional committees of the whole and other sessional bodies; c) Standing and ad hoc committees’.31 ECOSOC’s subsidiary organs currently include: eight Functional Commissions,32 five Regional Commissions,33 and three Standing Committees.34 Until the end of 1993, ECOSOC worked through three Sessional Committees;35 however, the General Assembly eliminated them and decided that, from 1994, their work should be subsumed into that of ECOSOC’s plenary.36 In addition, ECOSOC has a number of ad hoc bodies, expert bodies, and other related bodies.37 Certain of these subsidiary organs have created their own subsidiary bodies—though prior approval of ECOSOC may be required.38

(p. 119) 2.4  Rules of procedure 5.10  While certain of ECOSOC’s procedural rules are provided in the Charter itself,39 it falls to ECOSOC to adopt its own rules of procedure.40 It did so in its 1st session in 1946.41 This rule-making power may indicate that ECOSOC is entitled to act independently concerning its own proceedings.42 However, on certain occasions ECOSOC has amended its Rules of Procedure as a direct or indirect consequence of General Assembly resolutions.43 5.11  Certain chapters of the ECOSOC Rules of Procedure44 ‘apply to the proceedings of the committees and sessional bodies of the Council, and their subsidiary bodies unless provided otherwise’.45 In addition, ECOSOC has adopted Rules of Procedure for its Functional Commissions;46 moreover, it may prepare rules of procedure for other subsidiary organs.47

2.5  Voting 5.12  Each member of ECOSOC shall have one vote,48 a fact that may have led to ECOSOC being considered less attractive to certain states than the Security Council, whose five (p. 120) permanent members have a veto power, or the Bretton Woods institutions, with their weighted voting arrangements. According to Article 67(2) of the UN Charter, decisions shall be made by a majority of the members present and voting.49 For a member to be considered to be present and voting, its representative must cast an affirmative or negative vote; an From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

abstention is not considered a vote.50 Representatives of a majority of the members must be present for any decision to be taken.51 5.13  According to the Rules of Procedure, other than with elections,52 voting normally takes place by a show of hands—though a representative may request a roll-call vote.53 In practice, however, most decisions or resolutions are approved by consensus.54 The President has no voting right in his/her capacity as President but only as the representative of a member of the Council.55 The President (or a Vice-President acting as President) may delegate his/her right to vote to another member of his/her delegation.56 5.14  The word ‘decision’, as used in Article 67(2) of the UN Charter, is not defined, but a 1950 study prepared by the Secretary-General for the General Assembly noted that it refers to ‘all types of actions’ taken by the General Assembly and, by analogy, ECOSOC, ‘by a vote while performing its functions under the Charter’.57 ECOSOC’s (p. 121) determinations are sometimes referred to as ‘decisions’ and sometimes as ‘resolutions’.58 The numbering system for ECOSOC decisions and resolutions has changed over the years.59 5.15  It is generally accepted that decisions and resolutions of ECOSOC are not binding on member states or the specialized agencies.60

2.6  Bureau 5.16  The Bureau is comprised of the President and four Vice-Presidents, who shall be elected with regard for equitable geographical rotation or distribution.61 The President and Vice-Presidents are elected at the first meeting of the organizational session.62 As noted, voting in elections for the President and Vice-Presidents is to be by secret (p. 122) ballot,63 unless there is a slate of agreed candidates. This has been the case in recent years, with Presidents and Vice-Presidents having been elected by acclamation. Members of the Bureau hold office until their successors are elected and are eligible for re-election.64 If the President or a Vice-President becomes unable to carry out his/her functions, if he/she ceases to be a representative of a member of ECOSOC, or if the country of which he/she is a representative ceases to be an ECOSOC member, he/she will cease to hold office and a new election will be held.65 5.17  In its 2013 reforms of ECOSOC, the General Assembly strengthened the role of the Bureau, calling upon it to take measures to improve the organization of the Council and to assist in making its substantive sessions more relevant, more focused, and better prepared.66

2.7  President 5.18  At the opening of the first meeting of the year, the out-going President opens the session and makes a statement.67 An election for President (and the four Vice-Presidents) then takes place, after which the newly elected President addresses the meeting. The President is also charged with closing each plenary meeting.68 The President shall, subject to the Rules of Procedure, have complete control over ECOSOC proceedings and over the maintenance of order at its meetings.69 He/she is charged with directing the discussions, ensuring the observance of the ECOSOC Rules of Procedure, according the right to speak, putting questions to the vote, and announcing decisions.70 He/she should control the proceedings and decide on the adjournment or suspension of a meeting.71 In conducting these functions, the President remains under the authority of ECOSOC.72 5.19  It falls to the President to decide on the ‘special responsibilities’ of each of the VicePresidents.73 In 2014, for example, on the proposal of the President, ECOSOC (p. 123) divided the responsibilities in the Bureau such that certain segments would be the responsibility of the President and others would fall to the named Vice-Presidents.74

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5.20  In 2013, the General Assembly decided that the President, in consultation with the subsidiary bodies and member states, would propose the annual theme.75

3.  Functions 5.21  ECOSOC’s functions may be divided into the following main areas: 1.  promoting economic and social issues and making recommendation thereupon; 2.  the calling of conferences and preparing draft conventions; 3.  coordination and assistance; and 4.  follow-up.

3.1  Promotion and recommendation functions 5.22  ECOSOC is charged with promoting a wide variety of economic and social issues.76 It works towards this objective primarily through discussions and debates in its plenary session and its subsidiary bodies and the recommendations that emerge therefrom.77 It may also initiate studies78 to assist it in arriving at its recommendations and in preparing draft conventions.79 The practice of ECOSOC in these areas is considerable in terms of the number of resolutions or decisions passed by it and the General Assembly.80 Its ‘formal decisions and resolutions [as well as its deliberations] have (p. 124) helped raise public awareness of emerging development issues and have influenced policymaking within the UN system and at the national level’.81

3.2  Calling international conferences and preparing draft conventions 5.23  The subject matters on which ECOSOC may prepare draft conventions or call conferences are not listed in the UN Charter; instead, ECOSOC is simply empowered to prepare draft conventions ‘with respect to matters falling within its competence’.82 The preparation of draft conventions may be undertaken on ECOSOC’s own initiative or at the request of the General Assembly, one of the ECOSOC’s subsidiary organs, a specialized agency, a non-governmental organization (NGO) with consultative status, or a conference convened under Article 62(4).83 ECOSOC may request its subsidiary bodies, the SecretaryGeneral, or other UN bodies to prepare a convention.84 Lists of international conferences and of draft conventions and protocols are maintained by the UN Secretariat.85 ECOSOC has been particularly successful in relation to holding international conferences and preparing draft conventions in the field of human rights.86

3.3  Coordination and assistance functions 5.24  While its relationship with the General Assembly may be described as subordinate in many respects—notwithstanding the fact that both are ‘principal organs’ of the UN— ECOSOC’s relationship with specialized agencies, NGOs, and member states is more collaborative.

3.3.1  Specialized agencies 5.25  Article 57 of the UN Charter provides that the specialized agencies87 established by intergovernmental agreement with wide international responsibilities in economic, social, cultural, educational, health, and related fields shall be brought into a relationship with the UN. ECOSOC is given a role in achieving this objective through (p. 125) its capacity— subject to the approval of the General Assembly—to enter into agreements with these specialized agencies that define the terms of their relationships with the UN.88 ECOSOC is also charged with coordinating the activities of the specialized agencies, ‘through consultation with and recommendations to such agencies and through recommendations to the General Assembly and to the members of the United Nations’.89 ECOSOC may take From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

steps to obtain regular reports from the specialized agencies.90 In addition, it may make arrangements with the specialized agencies to obtain reports from them on the steps taken to give effect to recommendations made by ECOSOC and recommendations made by the General Assembly on matters falling within ECOSOC’s competence.91 It may communicate its observations on these reports to the General Assembly.92

3.3.2  World Bank, IMF, WTO, and UNCTAD 5.26  Since 1998, ECOSOC has met annually with the Bretton Woods institutions and the World Trade Organization (WTO), usually in April.93 In 2006, the General Assembly decided that there should be Special High-Level meetings of ECOSOC with the Bretton Woods institutions, the WTO, and the United Nations Conference on Trade and Development (UNCTAD),94 to focus on one or more annual themes.95 (p. 126) In the ‘Monterrey Consensus’, which was adopted at the 2002 International Conference on Financing for Development, held in Monterrey, Mexico, the importance of ECOSOC’s Special High-Level meetings as part of the follow-up process for the Monterrey Consensus was underlined.96 Beginning in April 2016, the Special High-Level meeting is to be included as part of the ECOSOC forum on Financing for Development follow-up.97

3.3.3  Non-governmental organizations 5.27  Amongst its most important coordination functions is ECOSOC’s role in making suitable arrangements for consultation with NGOs that are concerned with matters within its competence.98 ECOSOC carries out this task through its Committee on NonGovernmental Organizations, which has been described as the ‘guardian of the entrance door’ to the UN for NGOs, and is particularly important in regulating the collaboration of the Council with civil society.99 While ECOSOC’s arrangements (p. 127) for consultation with NGOs ‘have generally strengthened the position of these organizations within the UN’,100 certain of its practices have raised criticism over the years.101 ECOSOC’s role as regards the participation of NGOs in the UN system is considered further when discussing participation in meetings later in this chapter.102

3.3.4  UN member states 5.28  ECOSOC may make arrangements with member states of the UN to obtain reports on the steps taken by them to give effect to recommendations made by ECOSOC and recommendations made by the General Assembly on matters falling within ECOSOC’s competence. It may also communicate its observations on these reports to the General Assembly.103 In addition, ECOSOC is required under the UN Charter to ‘perform such functions as fall within its competence in connection with the carrying out of the recommendations of the General Assembly’.104 More generally, it is required ‘to perform such other functions…as may be assigned to it by the General Assembly’.105 ECOSOC is, moreover, required to assist the Security Council upon its request.106 In addition, it is obliged to perform services as requested by member states and specialized agencies; however, this obligation only arises with the approval of the General Assembly.107

3.4  Follow-up 5.29  ‘Since the 1990s, ECOSOC has assumed a complementary role to the General Assembly in the follow-up to major UN conferences in the economic and social spheres.’108 It has been called upon to focus on the follow-up of several conferences, including the implementation of the Millennium Development Goals (MDGs)109 and the Monterrey Consensus.110 In 2006 and again in 2013, the General Assembly reaffirmed that ECOSOC ‘should continue to strengthen its role as the central mechanism for system-wide coordination and thus promote the integrated and coordinated implementation of and follow-up to the outcomes of (p. 128) the major United Nations conferences in the economic, social and related fields’.111 In 2015, the General Assembly endorsed the Addis Ababa Action Agenda of the Third International Conference on Financing for Development From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

(AAAA), which called for, inter alia, an annual ECOSOC forum on financing for development follow-up.112

4.  Meetings and programme of work 4.1  Meetings 5.30  Until 1991, ECOSOC usually met twice each year; however, in 1991, the General Assembly decided that ECOSOC would hold a single annual meeting, consisting of an organizational session and a substantive session.113 The 1991 General Assembly resolution also provided detailed directions as to how the annual sessions were to be organized, including the timing, length, and content of the two sessions and the various segments that comprise the substantive session.114 5.31  The structure of meetings was modified by a 2013 General Assembly resolution.115 While ECOSOC continues to have one annual meeting (comprising an organizational and a substantive session),116 the resolution modified the timing, length, and content of the two sessions and the various segments comprising the substantive session. 5.32  Previously the meetings of ECOSOC alternated between Geneva and New York; however, currently, ECOSOC holds the regular meetings of its substantive sessions in New York, and only the humanitarian affairs segment continues to alternate between New York and Geneva.117

4.2  Annual programme of work 5.33  The organizational session is held over several meetings throughout the year. Since the 2015 session, the first meeting of the organizational session is held in July of the (p. 129) previous year.118 As to the substantive session, the General Assembly has provided that it consists of the following segments, which meet between February and July:119 (a)  an operational activities for development segment, to be held immediately following the first regular session of the executive boards of the funds and programmes of the UN system; 120 (b)  a humanitarian affairs segment to be held in June;

121

(c)  a high-level segment devoted to one or more themes 122 to be held in July, 123 which is to include the High-Level Political Forum on Sustainable Development (HLPF) 124 (which, in turn, is to include a three-day ministerial segment 125 leading to a Ministerial Declaration 126 ) and a biennial, two-day Development Cooperation Forum (DFC); 127 (p. 130) (d)  dedicated coordination and management meetings (CMM) to be held regularly, the timing of which are at ECOSOC’s discretion; 128 and (e)  an integration segment—the timing and modalities of which are left to ECOSOC— to consolidate the inputs of member states, the subsidiary bodies, the UN system, and other relevant stakeholders. 129 5.34  In addition, ECOSOC holds two informal forums annually: since 2008, the annual Partnership Forum;130 and since 2012, an annual Youth Forum.131

4.3  Annual themes

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5.35  In its 2013 reform of ECOSOC, the General Assembly decided that ECOSOC shall base its annual programme of work on a main theme.132 The General Assembly provided that the theme was to: (a)  Be determined at the beginning of [ECOSOC’s] cycle; (p. 131) (b)  Be selected taking into account the role of the Council in promoting the balanced integration of the economic, social and environmental dimensions of sustainable development, as well as the post-2015 development agenda; (c)  Be decided by the Council based on inputs from its subsidiary bodies, as well as Member States; (d)  Provide guidance to the work of its entire system while respecting the agenda, diversity of mandates and specialized expertise of the various subsidiary bodies; and (e)  Enable [ECOSOC] to promote system-wide coherence and coordination of issues requiring the effective response of the United Nations system. 133

4.4  Special sessions 5.36  Special sessions of ECOSOC may be held by decision of ECOSOC,134 on the request or with the concurrence of a majority of the members of ECOSOC,135 upon the request of the General Assembly or the Security Council,136 or by decision of the President of ECOSOC with the concurrence of the Vice-Presidents—and, as appropriate, in consultation with members of ECOSOC.137 In addition, a special session may be requested by the Trusteeship Council, any member of the UN, or a specialized agency; here, however, a special session will be convened only if a majority of the members of ECOSOC concur in the request.138 In 1994, ECOSOC held two special sessions: one on the situation of human rights in Rwanda139 and another to suspend the consultative status of an NGO.140 Since 2003, ECOSOC has held a number of ‘Special Meetings on Emergency Situations’.141 Certain of its subsidiary organs have also held special sessions.142

(p. 132) 5.  Participation in meetings 5.1  Participation by ECOSOC members 5.37  Article 61(4) of the UN Charter provides that each ECOSOC member ‘shall have one representative’. ECOSOC Rule 16 provides that the representative may be accompanied by such alternate representative and advisers as may be required. The credentials of the representative and the names of alternates must be submitted to the Secretary-General no less than three days before the first meeting the representatives are to attend.143

5.2  Participation of UN member states that are not ECOSOC members 5.38  According to the UN Charter, members of the UN that are not ECOSOC members shall be invited to participate, without vote, in its deliberations on any matter of particular concern to that member.144 ECOSOC’s Rules of Procedure make similar provision.145 In practice, such states are invited by the President of ECOSOC with the tacit agreement of the membership146—though a request for an invitation may be initiated by the state wanting to participate or a member of ECOSOC.147 It falls to ECOSOC to decide whether or not a matter is ‘of particular concern’ to a non-member state of ECOSOC.148 The practice has been ‘to allow representatives of (p. 133) Governments invited to participate in [ECOSOC] deliberations to make statements, to submit written or verbal draft resolutions and to participate in the work of drafting committees or working groups’ of ECOSOC.149

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Annually, a number of invitations are issued (some years as many as 25) by ECOSOC for participation in its meetings and those of its committees and commissions.150

5.3  Participation of states that are not UN members 5.39  While Article 69 of the UN Charter does not provide for participation by states that are not members of the organization, Rule 72 of the ECOSOC Rules of Procedure provides for invitations to participate to be made to UN member states and ‘any other state’. The first time this occurred was at ECOSOC’s 16th session, when the Government of the Kingdom of Libya was invited to make a statement on an agenda item on assistance for Libya.151 The practice of inviting non-UN members to participate has also occurred with ECOSOC’s subsidiary organs.152 At its 63rd session, ECOSOC amended the footnote to ECOSOC Rule 72, with the result that it ‘confirmed its practice of inviting States not Members of the United Nations to take part in its deliberations by virtue of their membership in any of the specialized agencies of the United Nations’.153

5.4  Nature of participation of non-members 5.40  The President of ECOSOC has, over the years, placed certain restrictions on the right of observers (ie, states or state-like entities that are not members of ECOSOC, whether or not members of the UN) to participate in its proceedings. These have included observers being told that they could not speak in exercise of a right of reply,154 or being (p. 134) told to limit their remarks to matters relating to the item under discussion or that were germane to the agenda item.155 While the practice has not always been clear, the Director of the General Legal Division of the Office of Legal Affairs has taken the view that observer states may sponsor or co-sponsor a draft resolution.156 Participation of states that were nonmembers of the UN in the Functional Commissions of ECOSOC may require the prior authorization or consent of ECOSOC.157 Nothing precludes the President from affording observer states the right to reply.158

(p. 135) 5.5  Other participants 5.5.1  Generally 5.41  ECOSOC may also invite any recognized national liberation movement to participate without vote.159 In addition, it may make arrangements for representatives of the specialized agencies to participate, without vote, in its deliberations and in the deliberations of the commissions established by it.160 The President of the Trusteeship Council may also participate in the deliberations of ECOSOC, though without the right to vote.161

5.5.2  Intergovernmental organizations 5.42  Representatives of international organizations that have been accorded permanent observer status by the General Assembly, or which have been designated by ECOSOC on the recommendation of the Bureau on an ad hoc or continuing basis, may participate, without vote, in the deliberations of ECOSOC on questions within the scope of the activities of those organizations.162 Generally the participating intergovernmental organization will be represented by a member of its secretariat; however, where the meeting is sufficiently important, it may be represented by its Director-General.163

5.5.3  Non-governmental organizations 5.43  Article 71 of the UN Charter provides that ECOSOC may make arrangements for consultation with NGOs164 that are concerned with matters within the competence of ECOSOC, which may include participation, without vote, in its deliberations and the (p. 136) deliberations of the subsidiary entities established by it.165 ECOSOC has emphasized the ‘clear distinction’ in the Charter between the right to ‘participate, without vote’ in ECOSOC’s deliberations afforded to all UN member states (Article 69) and representatives of the specialized agencies (Article 70), and the ‘suitable arrangements for consultation’ From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

that NGOs are to have (Article 71), and underlined the more limited nature of the latter.166 As of 1 September 2015, 4,507 NGOs had some form of consultative status with ECOSOC.167 5.44  A major change in approach to the UN system concerning the granting of consultative status occurred in 1996, with ECOSOC Resolution 1996/31.168 While consultative status provides an organization with certain rights,169 the category into which an organization falls—General Consultative Status, Special Consultative Status, or Roster Status—may impact on the nature of the consultation it may undertake with ECOSOC.170 On occasion, ECOSOC will reclassify an NGO from one type of consultative status to another.171 Where ECOSOC considers it to be appropriate, it (p. 137) may suspend an NGO’s consultative status.172 Most specialized agencies grant consultative status to NGOs in much the same way as ECOSOC.173

5.5.3.1  General Consultative Status 5.45  Organizations awarded General Consultative Status174 must be concerned with most of the activities of ECOSOC and its subsidiary bodies, and must be able to demonstrate to the satisfaction of the Council that they have substantive and sustained contributions to make to the achievement of the objectives of the United Nations in [the relevant] fields…and are closely involved with the economic and social life of the peoples of the areas they represent.175 Their membership should be ‘considerable’ and ‘broadly representative of major segments of society in a large number of countries in different regions of the world’.176 As of September 2015, there were 143 organizations with General Consultative Status. Organizations with such status are diverse in nature and include, for example, Oxfam International, Greenpeace International, the Humane Society of the United States, the International Trustee Fund of the Tsyolkovsky Moscow State Aviation Technological University, and the Transnational Radical Party.

5.5.3.2  Special Consultative Status 5.46  Organizations awarded Special Consultative Status177 are concerned with ‘only a few of the fields of activity covered by the Council and its subsidiary bodies’, and must be known with their fields.178 As of September 2015, there were 3,056 organizations with Special Consultative Status. They tend to be even more diverse in nature and ‘less closely linked with economic and social life’ than those granted General Consultative Status.179 They include, for example, Amnesty International, the American Bar Association, and the Alpha Kappa Alpha Sorority.

5.5.3.3  Roster Status 5.47  Organizations with Roster Status are those that ECOSOC, the Secretary-General in consultation with ECOSOC, or ECOSOC’s Committee on Non-Governmental Organizations considers ‘can make occasional and useful (p. 138) contributions to the work of the Council or its subsidiary bodies or other UN bodies with their competence’.180 As of September 2015, there were 970 organizations with the Roster Status. They include organizations as diverse as United Way International, Refugees International, the National Rifle Association of America Institute for Legislative Action, and the United Nations of Yoga.

6.  ECOSOC’s relationships with the other principal organs 6.1  General Assembly

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5.48  ECOSOC is generally subservient to the General Assembly,181 despite each being characterized as a principal organ in Article 7(1) of the UN Charter. The relationship between the General Assembly and ECOSOC has led to a considerable overlapping of functions—and an attendant lack of clarity. ECOSOC’s subservient and, at times, uncertain relationship with the General Assembly is frequently cited as being one of its most fundamental flaws.182 5.49  ECOSOC’s powers and functions are mainly set out in Chapters IX (‘International Economic and Social Cooperation’) and X (‘The Economic and Social Council’) of the UN Charter. Chapter IX calls for the UN to promote higher standards of living, solutions to economic and social problems, and universal respect for human rights;183 and provides that all member states pledge themselves to take action to this end.184 The Chapter then discusses the UN’s role as regards ‘specialized agencies…in economic, social, cultural, educational, health, and related fields’.185 While the earlier articles in the Chapter do not indicate which principal organ or organs is or are to act (instead, referring to ‘the Organization’), ECOSOC’s role—and the requirement (p. 139) that it carry it out under the General Assembly’s authority186—becomes clear from the last article in Chapter IX.187 5.50  While the functions in Chapter X are bestowed upon ECOSOC directly, many such functions either involve the preparation of recommendations or proposals to the General Assembly188—which, given that the General Assembly may accept or reject such recommendations, would appear tantamount to requiring its approval—or are specifically said to be subject to the approval of the General Assembly.189 Article 66(3) charges ECOSOC with performing any functions the General Assembly assigns to it. While some of ECOSOC’s functions in Chapter X do not specifically require ECOSOC to report to or seek the approval of the General Assembly,190 Article 60 might be construed as suggesting that even when acting under Chapter X, ECOSOC must exercise its powers ‘under the authority of the General Assembly’.191 Where a ‘final’ decision of the General Assembly is at variance with a ‘final’ decision of ECOSOC, the former would prevail—at least in areas where both have responsibilities.192 (p. 140) 5.51  The General Assembly has controlled the workings of ECOSOC from the early years of the functioning of the UN.193 In 1948, the General Assembly passed a resolution on improving the work of ECOSOC.194 At times, the General Assembly has requested ECOSOC to reconsider its decisions, and ECOSOC has done so.195 On some occasions the General Assembly has addressed the subsidiary bodies of ECOSOC directly, as well as through ECOSOC.196 As we have seen in the discussion of ECOSOC’s agenda of work, the General Assembly has taken decisions governing ECOSOC’s functioning in an extremely precise way, going so far as to prescribe the length, content, and structure of its meetings.197 As noted, members of ECOSOC are elected by the General Assembly.198 (p. 141) 5.52  Lastly, under Article 17(1) of the UN Charter, it falls to the General Assembly to consider and approve the budget of the organization, including the funding allocated to ECOSOC.

6.2  International Court of Justice 5.53  In September 1946, ECOSOC adopted a resolution noting the General Assembly’s authority under Article 96(2) of the UN Charter to authorize UN organs and Specialized Agencies to request Advisory Opinions from the International Court of Justice and recommending that the General Assembly do so with respect to ECOSOC.199 In December 1946, the General Assembly did so.200 ECOSOC has requested Advisory Opinions of the Court only twice in its history, once in 1988201 and once in 1998,202 each time pertaining to

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the applicability of the UN Convention on Privileges and Immunities to Special Rapporteurs working for ECOSOC’s now-defunct Commission on Human Rights or its Sub-Commission.

6.3  Trusteeship Council 5.54  While of historical interest only, given the non-active status of the Trusteeship Council, the UN Charter envisioned that the Trusteeship Council would, when appropriate, make use of the assistance of ECOSOC and the specialized agencies as regards matters with which they were concerned.203 The Trusteeship Council is also given certain privileges in the ECOSOC Rules of Procedure.204

(p. 142) 6.4  Secretary-General 5.55  Certain duties of the Secretary-General are provided for in ECOSOC’s Rules of Procedure, including assisting ECOSOC with drawing up its basic programme of work,205 drawing up the provisional agenda for each ECOSOC session,206 communicating ECOSOC’s provisional agenda to various parties,207 acting in the capacity of Secretary-General at all ECOSOC meetings,208 providing the staff required by ECOSOC, making arrangements for ECOSOC’s meetings, keeping ECOSOC members informed of questions that may be brought before ECOSOC for consideration,209 and making sound recordings of ECOSOC meetings.210 The Secretary-General is also required to assist ECOSOC with certain budgetary matters.211 The Secretary-General, or his/her representative, may make oral or written statements to ECOSOC on any question under consideration.212 The SecretaryGeneral is also given certain privileges in the ECOSOC Rules of Procedure.213 In 2013, the General Assembly underlined the Secretary-General’s important role in assisting the General Assembly in its work to reform ECOSOC.214 5.56  The Secretariat is also responsible for undertaking certain duties to support ECOSOC, including interpretation of speeches,215 translation, printing and circulation of documents and records,216 and preparing summary records of public meetings of ECOSOC and its subsidiary organs.217

6.5  Security Council 5.57  Article 65 of the UN Charter provides that ECOSOC may ‘furnish information to the Security Council and shall assist the Security Council upon its request’. Other aspects of (p. 143) the relationship are detailed in ECOSOC’s Rules of Procedure.218 During the Cold War there was relatively little cooperation between the two Councils. Early efforts to provide arrangements for ECOSOC to confer with the Security Council were not followed through upon;219 however, the terms of reference of at least one of ECOSOC’s subsidiary organs220 and the relationship agreements221 of several specialized agencies feature provisions calling for a relationship between those entities and the Security Council.222 5.58  In his 1992 Report, An Agenda for Peace, Secretary-General Boutros-Ghali called on the Security Council to invite ‘a reinvigorated and restructured Economic and Social Council to provide reports, in accordance with Article 65 of the Charter, on those economic and social developments that may, unless mitigated, threaten international peace and security’.223 Whether or not a direct result of the Secretary-General’s (p. 144) Report, cooperation between the two Councils increased from the mid-1990s, with the Security Council inviting the President of ECOSOC to participate in its proceedings.224 In 1998 the Security Council invited ECOSOC to contribute to the elaboration of a long-term programme of support for Haiti;225 and in 1999 ECOSOC created an Ad Hoc Advisory Group on Haiti.226 The 2004 Report of the Secretary-General’s High-Level Panel, Threats, Challenges and Change, welcomed the improved exchange of information between the two organs.227

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7.  Areas of competence 7.1  Generally 5.59  As regards ECOSOC’s areas of competence,228 the Council is charged with dealing with two main subject categories: (i) ‘international economic, social, cultural, educational, health, and related matters’;229 and (ii) ‘human rights and fundamental freedoms’.230 The first category may be conveniently divided into ‘economics’ on the one hand and ‘social, cultural, educational, health, and related matters’ on the other. A final category, not mentioned in the UN Charter but that has been developed in recent years, has been ECOSOC’s role in peacebuilding activities.231

(p. 145) 7.2  Economics 5.60  One area in which ECOSOC has been consistently lacking in influence is in relation to international economics.232 This is perhaps in part due to a preference by wealthier countries to rely on the weighted voting of the World Bank institutions,233 in part due to the preference of some developing countries for other UN-related entities dealing with economic development that are perceived as being more amenable to their needs,234 and in part due to a tendency of key experts to gravitate towards the international financial institutions.235 There is also overlap with the General Assembly’s Second Committee, which deals with Economic and Financial matters and has plenary membership. One commentator described ECOSOC as having ‘assumed the role of a preparatory body’ for the Second (Economic and Finance) Committee of the General Assembly.236 In the words of SecretaryGeneral Annan in his Report In larger freedom, over time ECOSOC ‘has been too often relegated to the margins of global economic and social governance’.237

7.3  Social, cultural, educational, health, and related matters 5.61  The work of ECOSOC as regards social, cultural, educational, health, and related matters238 has been more successful than in the area of economics. This may, in part, be due (p. 146) to its increased ability to convene national actors.239 There is, however, considerable overlap not only with the Third Committee (Social, Humanitarian and Cultural), but also with the specialized agencies,240 as well as with UN semi-autonomous subsidiary organs, such as the UNDP, the United Nations Children’s Fund (UNICEF), etc.

7.4  Human rights 5.62  Human rights issues are dealt with elsewhere in this volume,241 but it is important to note that this was—and, though to a lesser extent, continues to be—one of ECOSOC’s most important functions, especially in the area of standard setting. Since 2006, when the Commission on Human Rights (a subsidiary organ of ECOSOC) was replaced by the Human Rights Council (HRC—a subsidiary organ of the General Assembly), ECOSOC’s role in the area has been less prominent.242 Nevertheless, the Council continues to play an important role in the promotion of human rights through the work of some of its other subsidiary organs, for example the CSW243 and the CESCR.244

7.5  Peacebuilding 5.63  Even before the establishment of the Peacebuilding Commission in 2005, ECOSOC had engaged in peacebuilding. In 1999, ECOSOC created the Ad Hoc Advisory Group on Haiti.245 In 2000, the General Assembly requested ECOSOC to consider creating an ad hoc advisory group on countries emerging from conflict, ‘with a view to assessing their humanitarian and economic needs and elaborating a long-term programme of support for implementation that begins with the integration of relief into development’.246 In 2002, ECOSOC created a framework for advisory groups on African countries emerging from conflict.247 It subsequently created two Ad Hoc (p. 147) Advisory Groups: in 2002 it created

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the Ad Hoc Advisory Group on Guinea-Bissau;248 and in 2003 it created the Ad Hoc Advisory Group on Burundi.249 5.64  In its 2005 World Summit Outcome, the General Assembly called for the establishment of the Peacebuilding Commission (PBC)250 with a standing Organizational Committee that featured, inter alia, members of ECOSOC elected from regional groups.251 The PBC was jointly established by the General Assembly and the Security Council, with seven members of ECOSOC to be a part of its 31-member standing Organizational Committee.252 ECOSOC was charged with providing advice to the Organizational Committee about states on the verge of lapsing or relapsing into conflict.253 In 2012, ECOSOC and the PBC held a joint event entitled ‘Partnerships for job creation for young peoples emerging from conflict’.254 Following the admission of South Sudan to the UN, and following a joint event by ECOSOC and the PBC on the theme ‘Promoting durable and sustainable development in the Sudan and South Sudan’, ECOSOC requested that the Secretary-General report on the progress of the UN development system in supporting South Sudan.255 The General Assembly requested the Presidents of ECOSOC and the General Assembly to coordinate with the Bureaux of relevant organs, including the PBC, ‘in order to achieve maximum synergy and effectiveness’.256

8.  Reform 8.1  Generally 5.65  Almost from its earliest functioning, the UN—and in particular the General Assembly —has worked to reform ECOSOC,257 often referred to as ‘restructuring (p. 148) and revitalisation of the United Nations in the economic, social and relations fields’.258 As early as 1948, the General Assembly passed a resolution noting the interest shown by certain delegations in improving the work of ECOSOC, and recommending that members consider the problem and communicate suggestions to the Secretary-General.259 Among the earlier major reforms were those proposed in 1969–70,260 the mid-1970s,261 and the mid-1980s.262

(p. 149) 8.2  Reforms in the mid-2000s and beyond 5.66  More recently, three important reports have addressed ECOSOC reform: (i) the 2004 Report of the Secretary-General’s High-Level Panel on Threats, Challenges, and Change, A more secure world: Our shared responsibility;263 (ii) the Secretary-General’s 2005 Report, In larger freedom;264 and (iii) the World Summit Outcome Report.265

8.2.1  High-Level Panel Report 5.67  The changes proposed for ECOSOC in the High-Level Panel Report were relatively modest266—especially when compared to some of the quite radical proposals for reform that had been put forward in the preceding decade.267 The Report noted that ECOSOC’s role as regards decision-making on international economic matters, never strong in the first place,268 was unlikely to develop.269 Instead, it recommended strategies to enhance ECOSOC’s relevance and contribution to collective security through its provision of: (i) normative and analytical leadership;270 (ii) ‘an arena in which States measure their commitments to achieving key development objectives’;271 and (iii) ‘a venue for engaging the development community at the highest level, in effect transforming it into a development cooperation forum’.272 Finally, the report (p. 150) observed that, given ECOSOC’s limited capacity, there remained a need for ‘a body that brings together the key developed and developing countries to address the critical interlinkages between trade, finance, the environment, the handling of pandemic diseases and economic and social development’ at the level of national leaders.273

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8.2.2  Secretary-General’s Report, In larger freedom 5.68  In his 2005 Report, In larger freedom,274 the Secretary-General noted that over time, ECOSOC ‘has been too often relegated to the margins of global economic and social governance’.275 He proposed a number of ways in which ECOSOC could improve its work: 1.  assessing progress towards agreed development goals; 2.  acting as a high-level international development cooperation forum;

276

3.  assessing ‘threats to development’ (such as famines, epidemics, and major natural disasters) and promoting coordinated responses; 277 4.  developing its ‘post-conflict management’ work (by working with the PBC);

278

and

5.  providing direction to the various intergovernmental bodies working in the area of global development. 279 5.69  In order to implement these improvements, the Secretary-General called for a ‘new and more flexible structure’ for ECOSOC,280 with ‘an effective, efficient and representative intergovernmental mechanism for engaging its counterparts in the institutions dealing with finance and trade’.281

8.2.3  World Summit Outcome Report 5.70  In September 2005, the General Assembly adopted the 2005 World Summit Outcome.282 It provided that ECOSOC should: (p. 151) 1.  promote global dialogue on trends in the economic, social, environmental, and humanitarian fields; 283 2.  hold a biennial high-level Development Cooperation Forum (DCF) to review trends in international development cooperation; 284 3.  ‘Ensure follow-up of the outcomes of major UN conferences and summits’;

285

4.  ‘Support and complement international efforts aimed at addressing humanitarian emergencies’; 286 5.  ‘Play a major role in the overall coordination of funds, programmes and agencies ensuring coherence and avoiding duplication of mandates and activities’ among them. 287

It stressed that in order to perform these functions, the organization of work, the agenda, and the methods of work of ECOSOC needed to be adapted.288 5.71  The reform provisions for ECOSOC from the World Summit Outcome have been developed and augmented by two wide-reaching General Assembly resolutions: General Assembly Resolutions 61/16 of 20 November 2006 and 68/1 of 20 September 2013. As referred to throughout this discussion, these resolutions and their comprehensive annexes have had a considerable impact on the work of ECOSOC—including on the length, structure, and content of its meetings,289 the nature of its responsibilities,290 and its overall functioning.291

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Footnotes: 1

  Rosenthal notes that ECOSOC has had many successes, including in the areas of streamlining and improving its working methods, introducing greater coherence in the activities of the different intergovernmental bodies, and adapting its agenda to changing circumstances: ‘Many states have viewed ECOSOC as an impartial and objective meeting place where different positions and approaches can be contrasted, and implications of alternative policy prescriptions can by analysed.’ See Rosenthal, ‘Economic and Social Council’ in The Oxford Handbook on the United Nations (eds Daws and Weiss, 2008), 141–3. See also Report of the Secretary General, In larger freedom: towards development, security and human rights for all (UN Doc A/59/2005, 21 March 2005), where Secretary-General Annan refers favourably to ECOSOC’s work in building bridges with trade and financial institutions, and contributing to linking the issues of security and development (paras 172– 3). 2

  See section 8, ‘Reform’.

3

  See, eg, Martens, ‘The Reform of the UN Economic and Social Council (ECOSOC): A Never-Ending Story?’ (14 November 2006, Global Policy Forum), at https:// www.globalpolicy.org/social-and-economic-policy/social-and-economic-policy-at-the-un/ reform-of-ecosoc-and-the-social-and-economic-policy-process-at-the-un/47509.html. Martens notes that ECOSOC is perceived by some—especially developing countries—to be too small to function as a truly representative forum for discussion of economic and social matters (given its non-universal membership); at the same time, it is viewed as being too large by other countries, which dismiss it as cumbersome and ineffective. 4

  For a discussion of ECOSOC’s relationship with the General Assembly, see section 6.1, ‘The General Assembly’. 5

  The ‘Bretton Woods institutions’ were created in the aftermath of the Second World War, in 1944, by 43 countries at Bretton Woods, New Hampshire, US. They consist of the World Bank (originally just the International Bank for Reconstruction and Development, IBRD) and the International Monetary Fund (IMF). A planned International Trade Organization (ITO), never came into existence. The purpose of their creation was to provide a stable institutional framework to rebuild the global economy, and avoid depression and isolationism, which were considered two of the main reasons that led to the Second World War. 6

  Art 23 of the Covenant of the League of Nations, 28 June 1919, 225 Parry’s CTS 195, provided that the member states would entrust the League with the general supervision over certain social areas (labour conditions, treatment of native inhabitants, traffic in women and children, disease control). 7

  Stanley Bruce, Australian Prime Minister from 1923–9 and a League of Nations delegate from 1932–6. When, in 1936, Bruce was elected as president of the League Council, he began to develop a plan for unprecedented reform that would reduce the Council’s control and introduce ‘in its place a new directing organ which should be technically competent and capable of enhancing the authority of the various agencies [in social and economic affairs]’. See Walters, History of the League of Nations (1952), 754–5, quoting a summary of Bruce’s thinking by economic adviser FL McDougall, as cited by Franda, The United Nations in the Twenty-First Century: Management and Reform Processes in a Troubled Organization (2006), 160. 8

  For a historic account on the origins of ECOSOC see Ghébali, ‘Aux origines de l‘Ecosoc: l’évolution des commissions et organisations techniques de la Société des Nations’ (1972) 18 AFDI. See also Report of the High-Level Panel on Threats, Challenges and Change, A more secure world: Our shared responsibility, annexed to UN Doc A/59/565, 2 December 2004, para 274, where it was noted that ‘The framers of the Charter of the United Nations From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

understood that peace and security were inseparable from economic development.’ Röben refers to the concept of ‘functionalism’ as being a rationale behind the establishment to ECOSOC: ‘that is the cooperation between States in different fields which would in turn lead to peace and harmony in the world in general’. See Röben, ‘Article 61’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1669, at 1670, para 1. 9

  ‘Summary Report of the 16th Meeting of Committee’ I/1, United Nations Conference on International Organization (UN Doc 976, I/1/40, p 1). 10

  Art 7(1) of the Charter of the United Nations, 24 October 1945, 1 UNTS XVI (‘UN Charter’). 11

  Röben, n 8, 1669, para 1.

12

  Rosenthal, n 1, 139.

13

  See the discussion in section 6.1, ‘The General Assembly’.

14

  GA Res 207 (III) (1948) recommended equitable geographic distribution in membership of the subsidiary organs of ECOSOC. 15

  GA Res 1991 B (XVIII) (1963). At the same time, without prejudice to the distribution of seats in ECOSOC, the General Assembly decided that the additional members would be elected according to a pattern of geographical distribution: seven from African and Asian States, one from Latin American States, and one from ‘Western European and other States’ (ibid, para 3). States were called upon in the Resolution to ratify the amendments by 1 September 1965. 16

  See Art 108 regarding the process for entry into force of amendments to the UN Charter. 17

  GA Res 2847 (XXVI) (1971).

18

  ibid. The Resolution provided for elections according to the following pattern: 14 members from African States; 11 members from Asian States; 10 members from Latin American States; 13 members from Western European and other States; and 6 members from Socialist States of Eastern Europe (para 4). After the General Assembly decided to enlarge the Council to 54 members in 1971, ECOSOC decided to enlarge the membership in its sessional committees to 54 members (ECOSOC Res 1621 (LI) (1971)). Note: ECOSOC’s sessional committees were dissolved by the General Assembly at the end of 1993 (GA Res 48/162 (1993), Annex I, para 17). 19

  In 1975 the General Assembly established an Ad Hoc Committee on the Restructuring of the Economic and Social Sectors of the United Nations System (GA Res 3362 (S-VII) (1975)). The Committee’s 1977 Report recommended, inter alia, that ‘consideration should be given to ways and means of making the Council fully representative’ (see GA Res 32/197 (1977), Annex, Section II, para 13). In 1979, the General Assembly considered a draft resolution sponsored by Argentina and Jamaica, calling for universal membership in ECOSOC (UN RP Supp no 6 (1979–84) vol IV, Art 61, p 134, paras 7–8). Consideration of the matter was deferred several times by the General Assembly (ibid, pp 134–5, paras 9–14; see also GA Dec 39/436 (1984)). In 1987, ECOSOC established the Special Commission of the Economic and Social Council on the In-Depth Study of the United Nations Intergovernmental Structure and Functions in the Economic and Social Fields (ECOSOC Dec 1987/112 (1987)) to consider, inter alia, the universalization of ECOSOC membership, as had been called for by the General Assembly (GA Res 41/213 (1986)). The Report that emerged was unable to reconcile the divergent views on the Chairman’s draft conclusions and recommendations (UN Doc E/1988/75, 1 June 1988, Annex IV); see also UN RP Supp no 7 (1985–88) vol IV, Art 61, p 6, para 7. The General Assembly deferred consideration of the

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Report to its 45th session (GA Dec 43/433 (1988); see also UN RP Supp no 7 (1985–88) vol IV, Art 61, p 7, para 8). 20

  For a discussion of the Main Committees of the General Assembly, see ch 6, ‘Subsidiary Organs’. 21

  In particular, there is overlap between ECOSOC and the General Assembly’s Second Committee (Economic and Financial Committee) and its Third Committee (Social, Humanitarian, and Cultural Committee). 22

  See, eg, Rosenthal, n 1, 140.

23

  UN Charter, Art 61(1). Art 18(2) provides that the election of ECOSOC members is an ‘important question’ requiring a General Assembly decision to be made by a two-thirds majority. 24

  UN Charter, Art 61(2) and (3). A transitional provision relating to expansion, provided in Art 61(3), is no longer relevant. Terms normally end on 31 December. 25

  Trauttmansdorff, ‘The Organs of the United Nations’ in The United Nations: Law and Practice (eds Cede and Sucharipa-Behrmann, 2001), 38. Very occasionally permanent members of the Security Council have not been on ECOSOC for one-year periods. For an updated list of ECOSOC membership throughout the years, see New Zealand Ministry of Foreign Affairs and Trade, United Nations Handbook 2016–17: An Annual Guide for Those Working with and within the United Nations (2016), 139–42. 26

  UN RP Supp no 3 (1959–66) vol II, Art 61, p 384, paras 20–2. Note: at this point the membership was still 18, with six to be appointed each year. 27

  ibid. On 18 April 1961, the General Assembly resumed its session and elected Italy to fill the vacancy. 28

  [1983] UN Juridical YB 183–4. See ch 2, ‘The General Assembly’ section 5.2.4.3, ‘ECOSOC’. 29

  [1983] UN Juridical YB 183–4. The Legal Counsel stressed that the General Assembly had ‘an obligation to make every effort to complete the election of the Council as soon as possible so that the period during which it has to meet with imperfect composition is reduced to a minimum’ (ibid). 30

  For a discussion of ECOSOC’s subsidiary organs see ch 6, ‘Subsidiary Organs’, section 11, ‘Subsidiary organs of ECOSOC’. 31

  ECOSOC, ‘Rules of Procedure of the Economic and Social Council’ (UN Doc E/5715/Rev. 2 (1992)), Rule 24(1) (hereinafter referred to as ‘ECOSOC Rule’ followed by the relevant number). 32

  The Commission on Narcotic Drugs (CND), the Statistical Commission, the Commission for Social Development (CSoD), the Commission on Population and Development (CPD), the Commission on the Status of Women (CSW), the Commission on Science and Technology for Development (CSTD), the Commission on Crime Prevention and Criminal Justice (CCPCJ), and the United Nations Forum on Forests (UNFF). The Commission on Sustainable Development (CSD) was a Functional Commission from 1992 until it was replaced by the High-Level Political Forum on Sustainable Development (HLPF) in 2013 (GA Res 67/290 (2103), para 26); see n 124. This change arose after the General Assembly endorsed the outcome document of the United Nations Conference on Sustainable Development, entitled ‘The future we want’ (GA Res 66/288 (2012)), which at para 84 called for the establishment of a new forum to replace the CSD.

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33

  The Economic Commission for Europe (ECE), the UN Economic and Social Commission for Asia and the Pacific (ESCAP), the Economic Commission for Latin America and the Caribbean (ECLAC), the Economic Commission for Africa (ECA), and the Economic and Social Commission for Western Asia (ESCWA). 34

  The Committee on Non-Governmental Organizations (CNGO), the Committee for Programme and Coordination (CPC), and the Committee on Negotiations with Intergovernmental Agencies. 35

  The Sessional Committees were: the First (Economic) Committee, the Second (Social) Committee, and the Third (Programme and Coordination Committee). Each was a committee of the whole. According to ECOSOC Rule 26(1), these were to be chaired by the Vice-Presidents, designated by ECOSOC on the recommendation of its President. 36

  GA Res 48/162 (1993), Annex I, para 17.

37

  See ch 6, ‘Subsidiary Organs’, particularly section 11, ‘Subsidiary organs of ECOSOC’.

38

  ECOSOC Rule 24(2) provides: ‘Except for the regional commissions, the commissions and committees of the Council shall not create either standing or ad hoc intersessional subsidiary bodies without prior approval of the Council.’ See also a 1973 legal opinion of the UN Secretariat, where it was held: (a) that a subcommission of CND could establish a permanent sub-commission only if it had been so authorized by ECOSOC; (b) that the CND could recommend to ECOSOC that such a subcommission report directly to ECOSOC only if ‘compelling reasons’ existed for such a method of reporting; and (c) that a formula whereby the sub-commission (like some functional commissions) be composed of states each of which would nominate a qualified representative to be confirmed by the CND was preferable to a proposed system where the sub-commission was to have been composed of states, including states not members of the CND. The Legal Office also advised that states eligible for CND membership but not represented therein were eligible for membership in the sub-commission, regardless of whether this would lead to the sub-commission’s having a membership larger than the CND membership ([1973] UN Juridical YB 157–8). 39

  UN Charter, Arts 68–72.

40

  UN Charter, Art 72(1). Similar provisions exist for the General Assembly (Art 21), the Security Council (Art 30), and the Trusteeship Council (Art 90(1)). 41

  The Rules of Procedure were prepared in draft form by the Preparatory Commission of the United Nations in 1945 (UN Doc PC/20, 23 December 1945, Chapter III, Section 3) and were approved, without change, at the first meeting of the Joint Subcommittee of the Second and Third Committees during the 1st session of the General Assembly (UN Docs A/C. 2/7 and A/C.3/3), the conclusions of which (UN Docs A/16 and A/17) were adopted by the General Assembly during its 1st session (GA Res 5 (I) (1946) and GA Res 7 (I) (1946), respectively). During its 1st session, on 16 February 1946, the Rules of Procedure were adopted by ECOSOC (UN Doc E/33). The Rules have been amended numerous times over the years (see UN Doc E/5715/Rev.2 (1992), Annex, para 2). 42

  Chaitidou, ‘Article 72’ in Simma et al (eds), n 8, 2012), 1816, at 1817, para 2.

43

  See, eg, UN RP (1945–54) vol III, Art 72, pp 572–3, paras 41–5.

44

  Chapters VI, and VII–XII.

45

  ECOSOC Rule 27(1). For a discussion of ECOSOC’s subsidiary organs see ch 6, ‘Subsidiary Organs’. For a brief summary, see section 2.3, ‘Subsidiary organs’.

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46

  ECOSOC, ‘Rules of Procedure of the Functional Commissions of the Economic and Social Council’ (UN Doc E/5975/Rev.1 (1983) (‘Rules of Procedure of ECOSOC Functional Commissions’)). The Rules were initially adopted by ECOSOC in 1947 (ECOSOC Res 100(V) (1947)) and, after comprehensive review, revised in 1950 (ECOSOC Res 289(X) (1950)). The 1983 version encompasses all the amendments performed from the 1950 revision onwards. ECOSOC Rule 27(2) provides that the rules of procedure of ECOSOC’s commissions and their subsidiary bodies shall be drawn up by ECOSOC, unless it decides otherwise. 47

  For example, in 2012 ECOSOC established rules of procedure for the UN Committee of Experts on Global Geospatial Information Management (UN-GGIM), an ECOSOC Expert Body established in 2011. See UN Doc E/C.20/2012/2, 11 June 2012. 48

  UN Charter, Art 67(1) and ECOSOC Rule 58.

49

  See also ECOSOC Rule 60(1).

50

  ECOSOC Rule 60(2). When the Rule was adopted the issue of abstentions arose. Various views were expressed, including ‘that representatives who abstained showed that they disinterested themselves in a question,… that abstaining representatives implicitly accepted the decision and… that an abstention indicated an attitude of absolute neutrality’ (UN RP (1945–54) vol III, Art 67, p 465, para 23). This is similar to the procedure in the General Assembly. Rule 86 of the General Assembly’s Rules of Procedure provides that ‘the phrase “present and voting” means casting an affirmative or negative vote. Members which abstain from voting are considered as not voting’ (see also ch 2, ‘The General Assembly’, particularly section 5, ‘Voting’). It may, however, be contrasted to the approach taken in the Security Council, where a ‘concurring vote’ for the purposes of Art 27(3) has been said by the ICJ to include an abstention. See Legal Consequences for States of the Continued Presence of South Africa in Namibia ICJ Rep 1971, p 22 (see ch 3, ‘The Security Council’, section 6.1, ‘Generally’). 51

  ECOSOC Rule 41, second sentence. According to ECOSOC Rule 41, first sentence: ‘The President may declare a meeting open and permit the debate to proceed when representative of at least one third of members of the Council are present.’ 52

  Voting in elections is by secret ballot, unless ECOSOC decides to proceed without taking a ballot on an agreed candidate or slate (ECOSOC Rule 68). 53

  ECOSOC Rule 61(1). A roll-call vote is ‘taken in the English alphabetical order of the names of the members, beginning with the member whose name is drawn by lot by the President. The name of each member shall be called in all roll-calls, and its representative shall reply “yes”, “no” or “abstention”’ (ibid). 54

  Rosenthal, n 1, 138. In the early years substantive matters were almost always adopted by vote (see Chaitidou, ‘Article 67’ in Simma et al (eds), n 8, 1728, at 1731–2, para 11). See UN RP (1945–54) vol III, Art 67, p 463, para 10, for a discussion of the distinction between the procedure used for resolutions on substantive matters and procedural or administrative decisions; the latter were usually adopted without a vote. 55

  ‘This principle does not apply to some of the subsidiary organs of the Council’ (UN RP (1945–54) vol III, Art 67, p 462, para 7(c) and fn 3). 56

  ECOSOC Rule 23.

57

  UN Doc A/1356, 11 September 1950, paras 22–4. The study dealt principally with the General Assembly and the Security Council, but noted that the same remarks apply to decisions of ECOSOC referred to in Art 67 and decisions of the Trusteeship Council referred to in Art 89 (ibid, para 23).

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58

  The UN Secretariat took the view that the word ‘decision’ is used by ECOSOC for administrative/procedural matters, whereas the word ‘resolution’ is used for substantive ones (UN RP (1945–54) vol III, Art 67, p 463, para 10). This does not appear to provide a full explanation, however, given that on the two occasions ECOSOC has requested Advisory Opinions from the ICJ, it did so once by resolution and once by decision (see nn 201 and 202). 59

  Until 1977, the resolutions of ECOSOC were numbered consecutively and identified by an arabic numeral followed by an indication of the session in parentheses, eg Resolution 1722 (LIV). When more than one resolution was adopted under the same number, each was identified by a capital letter, eg Resolution 1926 B (LVII). The last resolution so numbered was Resolution 2130 (LXIII) (1977). Since 1978, resolutions have been numbered on a yearly basis and identified by two arabic numerals separated by an oblique, the first numeral indicating the year and the second the number of the resolution in the annual series, eg, 1990/47. Until 1973 the decisions of ECOSOC were not numbered. From 1974 to 1977 the decisions were numbered consecutively and were identified by an arabic numeral followed by an indication of the session in parentheses, eg Decision 64 (ORG-75) was adopted at the organizational session for 1975 and Decision 78 (LVIII) was adopted at the 58th session. The last decision so numbered is Decision 293 (LXIII) (1977). Since 1978, the decisions have been numbered on a yearly basis and identified by two Arabic numerals separated by an oblique stroke, the first numeral indicating the year and the second the number of the decision in the annual series, eg Decision 1990/224 (see UN Doc E/2000/99 (2001)). 60

  Röben speaks of an obligation on the part of ECOSOC members of loyalty to the organ. See Röben, ‘Article 62’ in Simma et al (eds), n 8, 1678, at 1863, para 16. See Kelsen, who notes that while the recommendations of ECOSOC are not binding, Art 56 of the UN Charter obliges members to ‘take some action in cooperation with the Organisation for the achievement of the purposes set forth in Article 55’ (ie relating to the promotion of higher standards of living; solutions of international economic, social, health, and related problems, and international cultural and educational cooperation; and universal respect for human rights). See Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems (1964), 99. He also argues that Art 56 ‘might be interpreted to mean that the Members are obliged to permit intervention on the part of the Organisation in matters referred to in Article 55, even if these matters are within their domestic jurisdiction. This provision is hardly consistent with Article 2, paragraph 7’ (ibid, 773). 61

  ECOSOC Rule 18(1) and fn 2. With the election of the President, regard must be had to equitable geographical rotation; with the election of the Vice-Presidents, regard must be had to equitable geographical distribution from the regional groups other than the one to which the President belongs. Representatives of the Permanent Five member states of the Security Council do not usually stand for election to the positions of the President and the Vice-Presidents of ECOSOC. See Chaitidou, n 42, 1824, para 16; also UN RP (1945–54) vol III, Art 72, p 585, para 105, for an early account of the practice. 62

  The structure of the ECOSOC’s annual session, including the organizational session, is discussed in section 4.2, ‘Annual programme of work’. 63

  See n 52.

64

  ECOSOC Rule 19.

65

  ECOSOC Rule 22.

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66

  GA Res 68/1 (2013). The Bureau ‘should convene regular open-ended informal consultations of the Council to improve organizational and procedural as well as substantive aspects of the sessions of the Council, with a view to highlighting the issues and recommendations that require consideration and action by the Council in order to have more focused and well-prepared substantive sessions’ (ibid, para 31). Moreover, it ‘should continue to meet on a regular basis to consider issues such as recommendations on agenda items and subjects, the structure of meetings and lists of guest participants for panel discussions, and should be kept informed, when appropriate and in the context of its organizational efforts, of the deliberations of relevant intergovernmental mechanisms outside the United Nations system’ (ibid, para 32). 67

  ECOSOC Rule 42(1).

68

  ibid.

69

  ibid.

70

  ibid. See also ECOSOC Rule 44(1) regarding the President’s control of speakers.

71

  ECOSOC Rule 42(1).

72

  ECOSOC Rule 42(2).

73

  ECOSOC Rule 18(2).

74

  UN Doc A/69/3/Rev.1, 5 January 2015, p 155, para 20.

75

  GA Res 68/1 (2013), para 9. The theme is ultimately decided upon by ECOSOC (ibid, para 7(b)). See section 4.3 for discussion of the annual theme. 76

  This includes the promotion of higher standards of living, full employment, conditions of economic and social progress and development (Art 55(a)); promotion of solutions of international economic, social, health and related problems, and international cultural and educational cooperation (Art 55(b)); and promotion of universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion (Art 55(c)). For a survey of ECOSOC’s practice under Art 55(a) and (b), see generally Stoll, ‘Article 55 (a) and (b)’ in Simma et al (eds), n 8, 1535. As regards the work of ECOSOC in the field of human rights, see ch 22, ‘Promotion and Protection of Human Rights’; see also Riedel and Arend, ‘Article 55 (c)’ in Simma et al (eds), n 8, 1565. 77

  ECOSOC is empowered to make recommendations with respect to international economic, social, cultural, educational, health, and related matters (Art 62(1)), and for the purpose of promoting respect for, and observance of, human rights and fundamental rights for all (Art 62(2)). 78

  ECOSOC is empowered to initiate studies and reports with respect to international economic, social, cultural, educational, health, and related matters (Art 62(1)). 79

  ‘The main purpose of the studies and reports is to gather information that will then be used by ECOSOC, its subsidiary bodies, or the other organs of the UN to adopt resolutions and decisions concerning the international economic, social, cultural and other related matters, or the drafting of international conventions.’ See Röben, n 60, 1681, para 12. 80

  For a general survey of such decisions in relation to each area listed, see, eg, UN RP (1945–54) vol III, Art 55(a) and (b), pp 9–110 and similar surveys in subsequent years. 81

  Rosenthal, n 1, 138. He gives the example of the Ministerial Declaration on the role of information technology in the context of a knowledge-based global economy (UN Doc E/ 2000/L.0, 7 July 2000). He notes: ‘It could even be argued that the non-binding nature of decisions and resolutions has been an asset in furthering the policy debate, and has contributed to the organization’s considerable achievements in the development of ideas, in

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its advocacy role, and in its ability to shape public awareness’ (ibid, 143 and fn 25, citing Jolly et al, UN Contributions to Development Thinking and Practice (2004)). 82

  UN Charter, Art 62(3) and (4). While the fact that ECOSOC is to ‘prepare draft conventions for submission to the General Assembly’ illustrates its subordinate role, there is no similar indication as regards its power to call international conferences. International conferences must, however, be ‘in accordance with the rules prescribed by the United Nations’. These rules are agreed by the General Assembly, eg, GA Res 366 (IV) (1949) and GA Res 479 (V) (1950). See also n 190. 83

  Röben, n 60, 1686, para 27.

84

  ibid, 1686–7, para 27.

85

  For example, see UN RP (1945–54) vol III, Art 62(3), pp 290–2 (for draft agreements) and UN RP (1945–54) vol III, Art 62(4), pp 319–20 (for international conferences). 86

  See ch 22, ‘Promotion and Protection of Human Rights’, particularly section 5, ‘Human Rights Treaties and Treaty Bodies’. 87

  See, generally, ch 7, ‘United Nations Specialized Agencies’.

88

  UN Charter, Art 63(1).

89

  UN Charter, Art 63(2). As noted in para 5.15, however, it is generally agreed that ECOSOC lacks the capacity to bind the specialized agencies. 90

  UN Charter, Art 64(1).

91

  ibid.

92

  UN Charter, Art 64(2).

93

  GA Res 50/227 (1996), Annex I, para 88: ‘In order to improve communication and cooperation at the intergovernmental level between the Council and the international financial and trade institutions… the Council should schedule periodically a high-level special meeting at a time proximate to the semi-annual meetings of the Breton Woods institutions.’ This was echoed in ECOSOC Res 1999/51 (1999). Such meetings have been held annually since 1998 with various themes, sometimes addressed through round tables (see also GA Res 54/196 (2000), which recognized the WTO as a key stakeholder in the high-level event). 94

  ECOSOC ‘should continue to promote global dialogue, inter alia, through strengthening existing arrangements, including: a) The special high-level meeting with the Bretton Woods institutions, the World Trade Organization and the United Nations Conference on Trade and Development; b) An annual high-level policy dialogue with international financial and trade institutions held in the framework of a strengthened high-level segment of the annual substantive session of the Council; c) A thematic discussion on a theme from economic, social and related fields to be decided by the Council and informed by a report of the Secretary-General’ (GA Res 61/16 (2006), para 2). The General Assembly also invited the ‘organizations of the United Nations system, including the Bretton Woods institutions and the World Trade Organization, to contribute’ to ECOSOC’s annual ministerial-level substantive reviews (ibid, para 8(d)). 95

  Among the themes have been: ‘Global financial integration and development and recent issues’ (1998); ‘The functioning of international financial markets and stability in financing for development’ (1999); ‘Strengthening international financial arrangements and addressing poverty’ (2000); ‘Development financing, in particular poverty eradication, ODA [Official Development Assistance] and debt’ and ‘Movement towards a development-friendly international financial system: Public and private responsibility in the prevention of financial crises’ (2001); ‘Dialogue on the outcome of the International Conference on Financing for Development and of the meetings of the Development Committee and the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

IMFC Reform’ (2002); ‘Increased coherence, coordination and cooperation for the implementation of the Monterrey Consensus at all levels, one year after the Conference’ (2003); ‘Coherence, coordination and cooperation in the context of the implementation of the Monterrey Consensus’ (2004); ‘Coherence, coordination and cooperation in the context of the implementation of the Monterrey Consensus: Achieving the internationally agreed development goals, including those contained in the Millennium Declaration’ (2005 and 2006); ‘Good governance, developing countries’ participation in decision-making, effective use of trade and investment policies, and innovative means of financing for development’ (2007); ‘Coherence, coordination and cooperation in the context of the implementation of the Monterrey Consensus, including new challenges and emerging issues’ (2008); ‘Coherence, coordination and cooperation in the context of the implementation of the Monterrey Consensus and the Doha Declaration on Financing for Development’ (2009); ‘Building on Monterrey and Doha: Towards achieving the internationally agreed development goals, including the Millennium Development Goals’ (2010); ‘Coherence, coordination and cooperation on Financing for Development’ (2011); ‘Coherence, coordination and cooperation in the context of Financing for Development’ (2012); ‘Coherence, coordination and cooperation in the context of financing for sustainable development and the post-2015 development agenda’ (2013, 2014, 2015). 96

  ‘Monterrey Consensus on Financing for Development’, Report of the International Conference on Financing for Development (Monterrey, Mexico, 18–22 March 2002) (2003) (UN Doc A/CONF.198/11). 97

  In 2015 the General Assembly endorsed the Addis Ababa Action Agenda of the Third International Conference on Financing for Development (AAAA) (GA Res 69/313 (2015) and Annex). That Action Agenda called for, inter alia, an annual ECOSOC forum on financing for development follow-up, which is to have ‘universal, intergovernmental participation’ (ibid, Annex, para 132). ‘The forum will consist of up to five days, one of which will be the special high-level meeting with the Bretton Woods institutions, WTO and UNCTAD, as well as additional institutional and other stakeholders depending on the priorities and scope of the meeting; up to four days will be dedicated to discussing the follow-up and review of the financing for development outcomes and the means of implementation of the post-2015 development agenda’ (ibid). The inaugural session of the ECOSOC forum on financing for development follow-up was held from 18–20 April 2016. See ECOSOC, ‘Report of the inaugural session of the Economic and Social Council forum on financing for development follow-up’ (18–20 April 2016) (UN Doc E/FFDF/2016/3, 18 May 2016). According to the AAAA, the participants were, amongst other things, tasked with following up on the commitments and assessing the progress made in the implementation of the Monterrey Consensus and the Doha Declaration (GA Res 69/313 (2015), Annex, para 2). 98

  UN Charter, Art 71. Art 71 also provides that ‘Such arrangements may be made with international organizations and, where appropriate, with national organizations after consultation with the Member of the United Nations concerned.’ 99

  Schermers and Blokker, International Institutional Law: Unity within Diversity (2011), 143, para 189. 100

  ibid.

101

  Aston, ‘The United Nations Committee on Non-Governmental Organizations: Guarding the Entrance to a Politically Divided House’ (2001) 12 EJIL 493. He posits, inter alia, that the UN Committee on NGOs ‘too often rejects organizations that deal with human rights issues under the pretext of “misbehavior”, thereby muzzling critical voices at the UN’ ibid).

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102

  See section 5.5.3, ‘Non-governmental organizations’.

103

  UN Charter, Art 64. See generally Kunig and Tietje, ‘Article 64’ in Simma et al (eds), n 8, 1709. 104

  UN Charter, Art 66(1).

105

  UN Charter, Art 66(3).

106

  UN Charter, Art 65. See generally Kunig and Tietje, ‘Article 65’ in Simma et al (eds), n 8, 1718. 107

  UN Charter, Art 66(2). See, generally Kunig and Tietje, ‘Article 66’ in Simma et al (eds), n 8, 1723. 108

  Rosenthal, n 1, 138.

109

  See n 126 and the Ministerial Declarations listed there.

110

  See para 5.26.

111

  GA Res 61/16 (2006). See also GA Res 68/1 (2013), Annex, para 1: ECOSOC ‘should provide overall guidance and coordination to the United Nations development system and promote a coordinated follow-up to the outcomes of major international conferences and summits in the economic, social, environmental and related fields’. 112

  See discussion in n 97.

113

  GA Res 45/264 (1991), Annex, para 5.

114

  ibid.

115

  GA Res 68/1 (2013), Annex. See also GA Res 61/16 (2006).

116

  GA Res 68/1 (2013), Annex, para 10.

117

  New Zealand Ministry of Foreign Affairs and Trade, n 25, 143.

118

  This change would appear to be due to the decision of the General Assembly to adjust ECOSOC’s programme of work to a July-to-July cycle (GA Res 68/1 (2013), Annex, para 5). 119

  This is a change from the system in place from 1991–2013, when the substantive session was held annually in July and the organizational segment was held in late January or February. 120

  GA Res 68/1 (2013), Annex, para 11(a). ‘Through this segment the Council should provide overall coordination and guidance for operational development funds and programmes on a system-wide basis. Such guidance should include objectives, priorities and strategies in the implementation of the policies formulated by the General Assembly, including the quadrennial comprehensive policy review, and should concentrate on crosscutting and coordination issues related to operational activities’ (ibid). 121

  Through this segment ECOSOC ‘should continue to contribute to strengthening the coordination and effectiveness of United Nations humanitarian assistance and support and complement international efforts aimed at addressing humanitarian emergencies’ (GA Res 68/1 (2013), Annex, para 11(b)). As part of this segment, ECOSOC should hold a ‘special event to discuss the transition from relief to development, to be convened immediately preceding the humanitarian affairs segment and following the annual sessions of the executive boards and programmes of the United Nations system’ (ibid). 122

  The thematic focus is to reflect ‘the integration of the three dimensions of sustainable development, in line with the thematic focus of the activities of the Council and consistent with the post-2015 development agenda’ (GA Res 67/290 (2013), para 7(c)). In 2016, the

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theme of the high-level segment was ‘implementing the post-2015 development agenda: moving from commitments to results’. See also GA Res 48/162 (1993), Annex I, para 13. 123

  GA Res 68/1 (2013), Annex, para 11(c).

124

  ibid and GA Res 67/290 (2013), para 7(a). The HLPF is meant to build upon and, from 2016, replace the Annual Ministerial Review (AMR) (GA Res 67/290 (2013), para 7(a)). The 2017 HLPF on Sustainable Development will be held from 10–19 July 2017, with the theme ‘Eradicating poverty and promoting prosperity in a changing world’. See https:// sustainabledevelopment.un.org/hlpf. 125

  GA Res 68/1 (2013), Annex, para 11(c), and GA Res 67/290 (2013), para 7(a).

126

  GA Res 67/290 (2013), para 7(g). Some recent Ministerial Declarations include: ‘Implementing the post-2015 development agenda: Moving from commitments to results’ and ‘Ensuring that no one is left behind’ (2016); ‘Managing the transition from the Millennium Development Goals to the Sustainable Development Goals: What it will take’ and ‘Strengthening integration, implementation and review: The High-Level Political Forum on Sustainable Development after 2015’ (2015); ‘Addressing ongoing and emerging challenges for meeting the Millennium Development Goals in 2015 and for sustaining development gains in the future’ (2014); ‘Science, technology and innovation, and the potential of culture, for promoting sustainable development and achieving the Millennium Development Goals’ (2013); ‘Promoting productive capacity, employment and decent work to eradicate poverty in the context of inclusive, sustainable and equitable economic growth at all levels for achieving the Millennium Development Goals’ (2012); ‘Implementing the internationally agreed goals and commitments in regard to education’ (2011). For a complete list see http://www.un.org/en/ecosoc/docs/declarations.asp. 127

  GA Res 68/1 (2013), Annex, para 11(c).

128

  The meetings are to perform the functions of the coordination and general segments. GA Res 45/264 (1991), Annex, para 5(d)(ii) details the coordination segment as involving ‘Co-ordination of the activities of the specialised agencies, organs, organisations and bodies of the United Nations system in the economic, social and related fields, in accordance with Articles 63 and 64 of the Charter.’ The Resolution provides that this segment will consist of a four- or five-day session on the ‘co-ordination of the policies and activities of the specialised agencies, organs and organisations and bodies of the United Nations system relating to economic and social objectives of the United Nations. Discussion will be organised around one or more themes’ (ibid, para 5(d)(ii)(a)). Recommendations that emerge from the session are to be submitted to the General Assembly and forwarded, as appropriate, to various entities (ibid, para 5(d)(ii)(d)). During the 2015 session, these meetings were held on 8–10 April, 8–10 June, and 20–23 July 2015 (UN Doc A/70/3, 20 August 2015, p 152, para 1). During the 2016 session, these meetings were held on 4–6 April, 1–3 June, and 25–27 July (UN Doc A/71/3, 19 August 2016, p 57, para 1). 129

  During the 2015 session, this segment was held on 30 March–1 April 2015 (UN Doc A/ 70/3, 20 August 2015, p 152, para 1). During the 2016 session, it was held on 2-4 May 2016 (UN Doc A/71/3, 19 August 2016, p 50, para 1). 130

  The Partnership Forum ‘aims at finding innovative ways to collaborate with the private sector and foundations in search of solutions for the many development challenges’ (at http://www.un.org/en/ecosoc/about/). See also GA Res 68/1 (2013), Annex, para 24. 131

  The Youth Forum promotes the integration of youth into ECOSOC’s deliberations (GA Res 68/1 (2013), Annex, para 24).

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132

  GA Res 68/1 (2013), Annex, para 7. As noted (para 5.20), it falls to the President to propose a theme and agree on it with ECOSOC. This theme is different from the theme called for during the high-level segment (see n 122), though meant to be in line with it. In 2014 the annual theme was ‘Addressing on-going and emerging challenges for meeting the millenium development goals (MDGs) in 2015 and for sustaining development gains in the future’; in 2015 it was ‘Managing the transition from the MDGs to the sustainable development goals (SDGs): What it will take?’; and in 2016, ‘Implementing the post-2015 development agenda: Moving from commitments to results’. For 2017, ECOSOC is to focus on ‘Eradicating poverty in all its forms and dimensions through promoting sustainable development, expanding opportunities and addressing related challenges’. ECOSOC has also set the themes for its 2018 and 2019 sessions, which will be ‘From global to local: Supporting sustainable and resilient societies in urban and rural communities’ and ‘One world for all: Empowering people to build equal and inclusive societies’, respectively. See https://www.un.org/press/en/2016/ecosoc6800.doc.htm. 133

  GA Res 68/1 (2013), para 7.

134

  ECOSOC Rule 4(1)(a).

135

  ECOSOC Rule 4(1)(b).

136

  ECOSOC Rule 4(1)(c).

137

  ECOSOC Rule 4(2).

138

  ECOSOC Rule 4(3).

139

  UN RP Supp no 8 (1989–94) (advance version) vol IV, Art 72, para 17. It endorsed a resolution of the Commission on Human Rights on the issue (ECOSOC Dec 1994/223 (1994)). 140

  UN RP Supp no 8 (1989–94) (advance version) vol IV, Art 72, para 18. The special session was held on 16 September 1994 and ECOSOC Res 1994/50 (1994) was adopted, under which the consultative status of the International Lesbian and Gay Association (ILGA), the first NGOs dealing with lesbian and gay matters to gain consultative status with the UN, was suspended. The ILGA eventually regained its consultative status in 2011 with ECOSOC Dec 2011/224. 141

  They were on the following topics: the Severe Acute Respiratory Syndrome (SARS) outbreak (2003), Tsunami in the Indian Ocean (2005), Global Food Crisis (2008), Typhoon Haiyan in the Philippines (2013), Ebola (2015), the Zika Virus (2016), and El Nino (2016). See https://www.un.org/ecosoc/en/content/ecosoc-special-meetings-emergency-situations. 142

  See UN RP Supp no 8 (1989–94) (advance version) vol IV, Art 72, paras 19–22, regarding special sessions for the Commission on Narcotic Drugs, the Commission on Transnational Corporations, the Statistical Commission and the Committee on Economic, Social and Cultural Rights (CESCR). See also UN RP Supp no 9 (1995–99) (advance version) vol IV, Art 72, paras 13–14, regarding special sessions for the Commission for Social Development and the Committee on Economic, Social, and Cultural Rights. 143

  ECOSOC Rule 17. The President and Vice-Presidents are to examine the credentials and submit their report to ECOSOC (ibid). A number of exchanges and unsuccessful draft resolutions took place in the 1950s involving arguments by the USSR that the Government of the People’s Republic of China should represent China (UN RP (1945–54) vol III, Art 61, pp 190–2, paras 38–50). As noted by Röben, ‘ECOSOC cannot decide on questions of membership in the UN within the meaning of [Art] 4 [of the Charter] or of proper representation of a member in the UN. These matters fall under the competence of the [General Assembly].’ See Röben, n 8, 1677, para 21 (footnotes omitted). For a discussion of

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the submission of credentials more generally, see ch 8, ‘Membership’, particularly section 6, ‘Representation of members/credentials’. 144

  UN Charter, Art 69. As noted by Landwehr, ECOSOC’s non-universal membership made such a provision important. See Landwehr, ‘Article 69’ in Simma et al (eds), n 8, 1772, para 1. 145

  ECOSOC Rule 72(1). Similar provisions exist in the Rules of Procedure of ECOSOC Functional Commissions and in the terms of reference for its regional economic commissions (UN RP (1945–54) vol III, Art 69, pp 535–6). 146

  UN RP (1945–54) vol III, Art 69, pp 529–30, paras 9–10. See also UN RP Supp no 1 (1954–1955) vol II, Art 69, p 134, paras 4–6. 147

  UN RP (1945–54) vol III, Art 69, pp 529–30, paras 9–10. At the 24th session, the President asked that observers who wished to take part in the debate on certain agenda items ‘should advise him of their desire to so do sufficiently in advance of the discussion to enable him to inform the members of the Council’ (UN RP Supp no 2 (1955–59) vol III, Art 69, p 161). 148

  UN RP (1945–54) vol III, Art 69, p 530 and see ECOSOC Rule 72. In most cases, the meaning of the phrase ‘matter of particular concern to that State’ was not discussed (UN RP (1945–54) vol III, Art 69, p 532, para 21). Landwehr notes that ‘in practice ECOSOC has regarded a matter to be of particular concern to a State if that State has been referred to in a report of [sic] statement or in a draft resolution before ECOSOC, or if the State has sponsored or supported a proposal by a functional commission that was under discussion in ECOSOC. The mere fact, however, that a State has proposed a matter for discussion in the [General Assembly] or elsewhere, has not been regarded as sufficient reason for an invitation to participate in the respective deliberations of ECOSOC.’ See Landwehr, n 144, 1773–4, para 3 (footnotes omitted). 149

  UN RP (1945–54) vol III, Art 69, p 534, para 29. Also, UN RP Supp no 1 (1954–55) vol II, Art 69, p 136, para 13. 150

  For example, the following states participated in a consultative capacity in the 7th session of the Economic Commission for Africa: Austria, Belgium, Brazil, Bulgaria, Canada, China, Czechoslovakia, Denmark, Greece, Hungary, India, Israel, Italy, Japan, Mexico, Netherlands, Norway, Poland, Romania, Sweden, USSR, US, and Yugoslavia (UN RP Supp no 3 (1959–66) vol II, Art 69, pp 449–50). 151

  UN RP (1945–54) vol III, Art 69, pp 536–7, paras 38–41.

152

  ECOSOC Rule 72(2) provides that a ‘committee or sessional body’ of ECOSOC shall invite ‘any State that is not one of its own members’ to participate on a matter of particular concern to the state. The Rules of Procedure of ECOSOC Functional Commissions and the terms of reference for its regional economic commissions also make provision in this regard (UN RP (1945–54) vol III, Art 69, p 535). For example, Rule 73 of the Rules of Procedure for the Commission on International Commodity Trade provides for the invitation of states that are non-members of the UN (UN RP Supp no 1 (1954–55) vol II, Art 69, p 137). 153

  UN RP Supp no 5 (1970–78) p 228. The amendment provides that ‘in discharging its functions under this rule [ECOSOC Rule 72(1)] it will follow the practice of the General Assembly in implementing an “all States” clause, and that in all cases where it is advisable it will request the opinion of the [General] Assembly before taking appropriate decisions’ (ECOSOC Rule 72, fn 4). The ‘all States’ formula includes areas or entities that have been considered to be a state by the General Assembly, even where the entity is not a member of the UN or of any of the specialized agencies. This is distinct from the ‘Vienna’ formula, which includes—in addition to members of the UN or parties to the Statute of the ICJ—entities or areas that are members of any of the UN specialized agencies (Treaty

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Section of the [United Nations] Office of Legal Affairs, ‘Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties’ (UN Doc ST/LEG/7/Rev.1, 1999) p 21, para 80). 154

  UN RP Supp no 5 (1970–78) vol III, Art 69, p 228, paras 12–15.

155

  UN RP Supp no 2 (1955–59) vol III, Art 69, p 161, para 6 and UN RP Supp no 5 (1970– 78) vol III, Art 69, p 228, para 13. At the 62nd session of the Social Committee, it was argued that only voting members should speak as a matter was no longer at the ‘deliberation stage’ and the Committee was preparing to vote; in that case the observer was invited by the Chair to speak (ibid, para 15). 156

  UN RP Supp no 5 (1970–78) vol III, Art 69, p 228, paras 16–19. At a meeting on 5 May 1971, the Director of the General Legal Division addressed ECOSOC on whether two observer states (India and Chile) had the right to sponsor a draft resolution under Art 69 and Rule 75. The Director explained that ‘although Article 69 did not define “participation”, rule 75 of the Council’s rules of procedure did provide that any Member of the United Nations invited to take part in the Council’s deliberations might submit proposals which might be put to a vote by the request of any member of the Council’ (ibid, para 19). The Director noted that a non-member could also co-sponsor a draft resolution submitted by a member or members of ECOSOC, provided that the other sponsors agreed (ibid). The Director ‘further explained that the word “proposal” in rule 75 of the rules of procedure covered draft resolutions and substantive amendments or motions, as rules 56 and 57 of the rules of procedure indicated, and referred to the rules of procedure of the General Assembly in which draft resolutions were described only by the word “proposal”’ (ibid, para 19). During a debate on the issue, however, members failed to reach a conclusion (ibid). At a meeting on 10 May 1971, the issue was returned to, with some members emphasizing that the inclusion of India and Chile as co-sponsors of a draft resolution was not to be seen as being based on the Rules (UN RP Supp no 5 (1970–78) vol III, Art 69, p 229, para 21). However, the text, as adopted, ‘explicitly refer[red] to rule 75 of the rules of procedure of the Council in relation to the inclusion of Chile and India as co-sponsors’ (ibid). At the 54th session, in reply to a request by a representative of an observer state to have his remarks included in ECOSOC’s reports and summary records, the President referred to Rule 75 and said that ‘proposals by non-members could be put to the vote at the request of a member of the Council’ (ibid, para 26). At the 61st session of the CPC (see n 34), a representative of an observer state was permitted to introduce a draft decision before the Committee at the invitation of the Chair and on request of a member of the Committee in accordance with Rule 72 of ECOSOC’s rules of procedure. This was confirmed in subsequent sessions of the CPC (ibid, para 25). 157

  A legal opinion was requested in 1974 about participation in meetings of the ECOSOC Functional Commissions by states that were non-members of the UN but that were, nonetheless, members of a specialized agency, the International Atomic Energy Agency (IAEA), or parties to the Statute of the ICJ. See [1974] UN Juridical YB 165: ‘With respect to the general question of participation of representatives of non-Member States in meetings of the functional commissions of the Economic and Social Council, it is established practice that such participation requires prior authorization or consent of the Economic and Social Council’ (see the discussion of the ‘Vienna’ formula in n 153). This finding was said to be based on Rule 72 of ECOSOC’s Rules of Procedure and the fact that the power of Functional Commissions is limited by virtue of various provisions (including Art 68 of the UN Charter, which provides that ECOSOC may decide the powers and functions of the Functional Commissions). The Counsel held that the non-member state in question was ‘rightly omitted

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from the attendance list of the thirtieth session of the Commission on Human Rights’ ([1974] UN Juridical YB 165). 158

  Legal Counsel has held that while ECOSOC Rule 46 refers to ECOSOC members’ right of reply, it does not preclude the President from granting an opportunity to reply to observers: ‘Traditionally this courtesy has been accorded by the Council to Observer States and less frequently and consistently also to certain other entities, such as the Palestine Liberation Organization, authorized to participate in Council proceeding;… . As Observers have no absolute right of reply, opportunities to reply can more readily be restricted for them than for members’ ([1983] UN Juridical YB 188–9). 159

  ECOSOC Rule 73. On the potential right to reply of observers from a national liberation movement, see n 158. Relying on the provisions of Rule 70 of the Rules of Procedure of ECOSOC Functional Commissions (see n 46—which are also applicable to subsidiary organs established by the Commission by virtue of Rule 24), the Legal Adviser noted that there was ‘certainly no legal obstacle to the issuance of an invitation to national liberation movements for the forthcoming session of the Sub-Commission’. It was held that Rule 70 is based on ECOSOC Rule 73, and that such participation would be consistent with ECOSOC practice: ‘A review of the practice of the Economic and Social Council in the application of that rule reveals that the Palestine Liberation Organization and the African national liberation movements recognized by the Organization of African Unity have participated regularly in the sessions and the work of the Council’ ([1983] UN Juridical YB 189). 160

  UN Charter, Art 70 and ECOSOC Rules 75–78. ECOSOC may also make arrangements for its representatives to participate in the deliberations of the specialized agencies. For a discussion of the practice in this regard, see generally Landwehr, ‘Article 70’ in Simma et al (eds), n 8, 1779. 161

  ECOSOC Rule 74.

162

  ECOSOC Rule 79. In 1950, ECOSOC noted that the Union of International Associations had published a Yearbook of International Organizations that includes information regarding a large number of international non-governmental organizations; as such, the Council decided not to publish such a listing itself (ECOSOC Res 334 B (XI) (1950)). For an up-to-date listing of intergovernmental organizations having such status with ECOSOC, see Union of International Associations, at http://www.uia.org/ecosocres. 163

  Schermers and Blokker, n 99, 140, para 187.

164

  The broader term ‘private organizations’ is used by Schermers and Blokker to include private international unions (such as the International Road Transport Union), international non-governmental organizations, private national organizations (in other words, singlecountry NGOs), and ‘civil society’. Our primary focus here is on NGOs. See, ibid, 141–8. 165

  See also ECOSOC Rules 80–84.

166

  ECOSOC Res 1996/31 (1996), para 18. The rationale behind this clear distinction is stated in para 19: ‘The arrangements should not be such as to overburden the Council or transform it from a body for coordination of policy and action, as contemplated in the Charter, into a general forum for discussion.’ The Resolution continued: ‘The organizations given consultative status should be limited to those whose activities in [the listed fields] qualify them to make a significant contribution to the work of the Council and should, in sum, as far as possible reflect in a balanced way the major viewpoints or interest of these fields in all areas and regions of the world’ (ibid, para 20). 167

  At the time of writing, the most up-to-date list is as of 1 September 2015. See ECOSOC, ‘List of non-governmental organizations in consultative statute with the Economic and Social Council as of 1 September 2015’ (UN Doc E/2015/INF/5, 22 August 2016). Another 164 organizations with Special Consultative Status are shown as being suspended due to

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their having outstanding quadrennial reports. For decisions taken by ECOSOC regarding the granting or withdrawal of NGO consultative status in 2015, see UN Doc A/70/3, 20 August 2015, Part X, Section H, pp 128–31, and for 2016 see UN Doc A/71/3, 19 August 2016, Part X, Section H, pp 70–4. Note that ECOSOC accreditation is distinct from ‘DPI-associated’ status, ie those NGOs that are associated with the UN Department of Public Information. For information on the latter category, see generally http://outreach.un.org/ngorelations/. 168

  ECOSOC Res 1996/31 (1996). Previously, the issue of NGO consultative status was first addressed by ECOSOC Res 288 B (X) (1950) and later by ECOSOC Res 1296 (XLIV) (1968). Another ECOSOC decision in 1996 (ECOSOC Dec 1996/297, (1996)) recommended that the General Assembly consider the issue of increased access and participation of NGOs ‘in all areas of work of the United Nations’. 169

  See Hobe, ‘Article 71’ in Simma et al (eds), n 8, 1788, at 1799–800, para 19.

170

  For example, while organizations of all statuses are entitled to receive the provisional agenda (ECOSOC Res 1996/31 (1996), para 27), only those with General or Special Consultative Status may submit documents for circulation (ibid, para 30). Only organizations with General Consultative Status may propose to the Committee on NonGovernmental Organizations that it request items of special interest to these organizations be placed on ECOSOC’s agenda (ibid, para 28; see also ECOSOC Rule 13(4)). 171

  In 1993, ECOSOC reclassified two NGOs from what was then known as Category II Status to Category I Status, and eight organizations from Roster Status to Category II Status (ECOSOC Res 1993/329 (1993)). In 2004, the International Eurasia Press Fund and the International Council on Management of Populations Programmes were reclassified. In 2015 the Perfect Union was reclassified from Special Consultative Status to General Consultative Status, and the International Union of Railways, the World Animal Net, and the World Organization for Early Childhood Education were reclassified from Roster Status to Special Consultative Status. See ECOSOC, ‘List of non-governmental organizations in consultative statute with the Economic and Social Council as of 1 September 2015’, n 167, 4–6. 172

  As noted in n 140, in 1994 ECOSOC held a special session at which it decided to suspend the consultative status of the ILGA, an NGO that had been afforded Roster Status. In that case, ECOSOC expressed its deep concern ‘about questions that have been raised about whether member organizations or subsidiaries of the International Lesbian and Gay Association promote or condone paedophilia, contrary to international human rights standards and therefore the spirit, purposes and principles of the Charter of the United Nations’ (ECOSOC Res 1994/50 (1994)). The ILGA regained Consultative Status in 2011. 173

  Schermers and Blokker, n 99, p 146, para 195 and fn 467. See, generally, ch 7, ‘United Nations Specialized Agencies’. 174

  Before the 1996 reforms, this was known as ‘Category I’ Status.

175

  ECOSOC Res 1996/31 (1996), para 22.

176

  ibid.

177

  Formerly ‘Category II’ Status.

178

  ECOSOC Res 1996/31 (1996), para 23.

179

  Schermers and Blokker, n 99, 144–5, para 191.

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180

  ECOSOC Res 1996/1 (1996), para 24. ‘The fact that an organization is on the Roster shall not in itself be regarded as a qualification for general or special consultative status’ (ibid). 181

  Cf Röben, who takes the view that ‘As a principal organ of the UN, ECOSOC can execute its duties and responsibilities without the guidance of [sic] influence of any other organs of the UN including the General Assembly.’ See Röben, n 8, 1672, para 4. 182

  See, eg, Trauttmansdorff, n 25, 38–9. See also Rosenthal, n 1, 141–2, who notes that ‘the General Assembly encroaches on [ECOSOC’s] role of fostering policy debate’. Cf Röben, who refers to the ‘large potential for synergy given the overlap of functions’ between the General Assembly and ECOSOC. See Röben, n 8, 1672, para 5. 183

  UN Charter, Art 55.

184

  UN Charter, Art 56.

185

  Art 57 of the UN Charter calls for relationship agreements in accordance with Art 63; Art 58 calls on the UN to make recommendations for the coordination of the politics and activities of the specialized agencies; and Art 59 provides that the UN shall, where appropriate, initiate negotiations for the creation of any new specialized agencies required. For a discussion of specialized agencies, including their relationship agreements with the UN, see, generally, ch 7, ‘United Nations Specialized Agencies’. 186

  According to Stoll, n 76, 1544, para 33, the General Assembly has taken the ‘most important and substantive decisions’ in promoting the objectives of Art 55 of the Charter; generally, see, Meng, ‘Article 60’, in Simma et al (eds), n 8, 1658. 187

  Art 60 provides: ‘Responsibility for the discharge of the functions of the Organization set forth in this Chapter shall be vested in the General Assembly and, under the authority of the General Assembly, in the Economic and Social Council, which shall have for this purpose the powers set forth in Chapter X.’ 188

  For example, making or initiating studies and reports on relevant issues, and making recommendations to the General Assembly on them (Art 62(1)), preparing draft conventions for submission to the General Assembly (Art 62(3)), or coordinating activities of the specialized agencies through recommendations to the General Assembly (Art 63(2)). 189

  For example, a relationship agreement with a specialized agency must be approved by the General Assembly (Art 63(1)); and only with the approval of the General Assembly may ECOSOC perform services for member states or specialized agencies (Art 66(2)). 190

  For example, ECOSOC may make recommendations on human rights (Art 62(2)) and call international conferences (Art 62(4)) without the involvement of the General Assembly. See Röben, n 60, 1689, para 38, where he argues that ‘the general nature of the power vested in ECOSOC’ implies that it can call any kind of international conference falling within its competences, ‘so long as it does not interfere with rules prescribed by the UN, or with those conferences called by the [General Assembly]’; see also GA Res 366 (IV) (1949) laying down the rules for the calling of international conferences by ECOSOC, as provided under Art 62(4) of the UN Charter, where Rule 1 requires that ECOSOC, before calling an international conference, should consult with the Secretary General and the appropriate specialized agencies and be satisfied that the work to be performed by the conference ‘cannot be done satisfactorily by any organ of the United Nations or any specialised agency’. 191

  The impact of Art 60 on Chapter X is not entirely clear. Art 60’s requirement that the responsibility for the discharge of functions be ‘vested in the General Assembly and, under the authority of the General Assembly, in [ECOSOC]’, is addressed only to the functions in Chapter IX (the ‘discharge of the functions of the Organization set forth in this Chapter’) (emphasis added). However, the further wording in Art 60 that ECOSOC ‘shall have for this From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

purpose [ie of discharging its Chapter IX functions] the powers set forth in Chapter X’ may suggest a limitation on ECOSOC’s Chapter X powers, such that those powers—or at least ECOSOC’s Chapter X powers that aid in discharging its Chapter IX functions—must also be exercised under the supervision of the General Assembly. See also [1987] UN Juridical YB 175–7. 192

  In 1987, a legal opinion was requested as to the legal status of the decisions and recommendations of ECOSOC when the General Assembly takes decisions on a matter on which ECOSOC has already taken a decision. The opinion held that ‘from a legal point of view, there are few instances in which it is necessary for the Assembly to act on Economic and Social Council resolutions or decisions’. Moreover, it noted that the ‘General Assembly is not legally required to endorse all Economic and Social Council resolutions. But the General Assembly may deem it advisable and desirable…from a policy standpoint [to do so]’ ([1987] UN Juridical YB 175–7). ‘If the Economic and Social Council reaches what it considers to be a “final” decision, within the context under consideration, the General Assembly, none the less, on the basis of the above considerations, possesses the power to reach its own decisions which would then have to be considered the “final” General Assembly decision on the matter. In the case of divergence, at least in dual areas such as programme planning, the position of the General Assembly, under Article 60 of the Charter of the United Nations, would then prevail’ (ibid). The legal opinion further noted that the General Assembly ‘has been vested with the responsibility for the functions of the Organization set forth in Chapter IX of the Charter and under whose authority the Economic and Social Council functions under Chapter X’ (ibid). 193

  For example, the General Assembly had a role in the creation of ECOSOC’s Rules of Procedure (see n 41). In addition, it had a role in the nomination of members of its subsidiary bodies: in 1948, it recommended that ECOSOC have regard to equitable geographical distribution when nominating members of Functional Commissions and when electing or appointing members of other subsidiary bodies (GA Res 207(III) (1948)). 194

  GA Res 208 (III) (1948). The resolution was the outcome of discussions submitted in the first three sessions of the General Assembly to increase the membership of ECOSOC (UN RP (1945–54) vol III, Art 61, pp 186–90, esp p 187). 195

  For example, in 1952, the General Assembly requested (GA Res 532 A (VI) (1952)) ECOSOC to reconsider its decision (ECOSOC Res 414 (XIII) (1951), Section B.I., para 18(g)) to change the meeting of the CSW from every year to every two years; ECOSOC revised its decision (ECOSOC Res 445 I (XIV) (1952)). In 1951, the General Assembly effectively overruled ECOSOC in its decision to discontinue the work of a subsidiary organ of one of its Functional Commissions. At its 13th session, ECOSOC decided to discontinue the work of the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities (ECOSOC Res 414 (XIII) (1951), Section B.I., para 18(d)). The General Assembly considered this decision and invited ECOSOC to change its mind in GA Res 532 B (VI) (1952). Acting on the General Assembly’s request, ECOSOC requested the Sub-Commission to continue its work (ECOSOC Res 443 (XIV) (1952)). In its 1951 Calendar of Conferences, ECOSOC did not provide for a session of the SubCommission on Freedom of Information. The General Assembly, ‘considering it desirable that the Sub-Commission should continue of the agenda items referred to it’ by ECOSOC, invited ECOSOC to reconsider this decision in GA Res 420 (V) (1950). ECOSOC complied (ECOSOC Res 414 (XIII) (1951), Section B.I., para 18(e)). See also UN RP (1945–54) vol III, Art 60, pp 171–2, paras 9–13.

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196

  For example, the General Assembly ‘decided to include in the international covenants on human rights an article on the right of self-determination of peoples’ (UN RP (1945–54) vol III, Art 60, pp 174–5, paras 17–22). In another case, it requested the Commission on Human Rights to submit recommendations on the topic to the General Assembly (UN RP Supp no 1 (1954–55) vol II, Art 60, p 62, paras 10–13). 197

  See discussion at section 4, ‘Meetings and programme of work’.

198

  UN Charter, Art 61(1).

199

  ECOSOC Res 15 (III) (1946). ECOSOC recommended that the General Assembly authorize it ‘to request the International Court of Justice to give an advisory opinion on any legal question arising within the scope of its activities’. The ICJ is covered in greater detail in ch 29, ‘The International Court of Justice’; see particularly, section 3.4, ‘Advisory Opinions’. 200

  GA Res 89 (I) (1946). It authorized ECOSOC ‘to request advisory opinions of the International Court of Justice on legal questions arising within the scope of the activities of the Council’. 201

  ECOSOC Res 1989/75 (1989). ECOSOC requested an Advisory Opinion on ‘the legal question of the Applicability of Article VI, section 22 of the Convention on Privileges and Immunities of the United Nations in the case of Mr Dumitru Mazilu as Special Rapporteur of the Sub-Commission’ on the Prevention of Discrimination and Protection of Minorities. For the findings of the ICJ, see Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (Advisory Opinion) ICJ Rep 1989, p 177. 202

  ECOSOC Dec 1998/297 (1998). It requested an Advisory Opinion ‘relating to the legal question of the applicability of Article VI, Section 22 of the Convention on Privileges and Immunities of the United Nations in the case of Dato’ Param Cumaraswamy as Special Rapporteur of the Commission on Human Rights on the independence of judges and lawyers’. For the findings of the ICJ, see Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) ICJ Rep 1999, p 62. 203

  UN Charter, Art 91. For a discussion of the Trusteeship Council, see ch 4.

204

  For example, it may request a special session of ECOSOC (ECOSOC Rule 4(3)), it must be notified of the date of the opening of the session (ECOSOC Rule 6), ECOSOC’s provisional agenda must include all items proposed by, inter alia, the Trusteeship Council (ECOSOC Rule 9(2)), it must be sent the provisional agenda (ECOSOC Rule 10), it may propose the inclusion of supplementary items on the provisional agenda (ECOSOC Rule 12 (1)), etc. 205

  ECOSOC Rule 8.

206

  ECOSOC Rule 9(1).

207

  ECOSOC Rule 10.

208

  ECOSOC Rule 28(1). The Secretary-General ‘may designate a member of the Secretariat to act as his representative’. 209

  ECOSOC Rule 28(2) and (3).

210

  ECOSOC Rule 37. Whether recordings are required for the meetings of ECOSOC’s subsidiary organs is at the discretion of the Council (ibid). 211

  ECOSOC Rule 31.

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212

  ECOSOC Rule 30. The right is subject to ECOSOC Rule 44, which deals with certain rules relating to speeches to ECOSOC. 213

  For example, the Secretary-General may request an alteration of the date of the substantive session (ECOSOC Rule 3), ECOSOC’s provisional agenda must include all items proposed by, inter alia, the Secretary-General (ECOSOC Rule 9(2)), he/she must be sent the provisional agenda (ECOSOC Rule 10), he/she may propose the inclusion of supplementary items on the provisional agenda (ECOSOC Rule 12 (1)), etc. 214

  It held that ‘[t]he Secretary-General should make proposals to promote collaboration across the United Nations system, taking account of the functions of a strengthened’ ECOSOC. The proposals ‘should include measures to enable the Secretariat to better support the implementation of a unified development agenda’ and ‘to strengthen support to the Council, including to the office of the President of the Council’. The General Assembly provided that Department of Economic and Social Affairs of the Secretariat was to serve as a ‘central hub of support’ for ECOSOC. See GA Res 68/1 (2013), para 25. 215

  ECOSOC Rule 29.

216

  ECOSOC Rule 29.

217

  ECOSOC Rule 38.

218

  See ECOSOC Rule 4(1)(c) (special sessions of ECOSOC to be held upon the request of, inter alia, the Security Council), ECOSOC Rule 6 (the President of ECOSOC must notify, inter alia, the President of the Security Council of the date of opening of each session), ECOSOC Rule 9(c) (ECOSOC’s provisional agenda shall include items proposed by, inter alia, the Security Council), ECOSOC Rule 12(1) (inclusion in the agenda of supplemental items proposed by, inter alia, the Security Council), ECOSOC Rule 13(2) (an organ proposing an agenda item has the right to be heard by ECOSOC). Rule 39 of the Security Council’s Provisional Rules of Procedure (‘Provisional Rules of Procedure of the Security Council’ (UN Doc S/96/Rev.7, 1983)) provides that it may invite various persons, which presumably would include ECOSOC representatives. 219

  An ECOSOC agenda sub-item from 1948 on relations with the Security Council and the Trusteeship Council was taken up only as regards the relationship between ECOSOC and the Trusteeship Council (UN RP (1945–54) vol III, Art 65, p 414, paras 5–6). When the question of the relationship between ECOSOC and the Security Council was considered by ECOSOC in 1949, some representatives noted that the UN Charter was clear as regards the responsibilities of the two Councils and that a discussion of the working relationship might amount to interference in matters arising that were solely under the jurisdiction of the Security Council (eg Arts 39 and 41). ‘It was further argued that no other United Nations organ was authorized to deal with the questions of which the Security Council was seized and which fell within its competence in accordance with Article 12, and that the entire question should, therefore, be removed from the agenda of [ECOSOC]’ (UN RP (1945–54) vol III, Art 65, p 418, paras 20–1). After the General Assembly passed the ‘Uniting for Peace’ Resolution (GA Res 337 A (V) (1950)), ECOSOC considered what arrangements might be made by the specialized agencies to assist the Security Council and the General Assembly; this matter was not followed up (UN RP (1945–54) vol III, Art 65, p 415, para 9). 220

  The terms of reference of the Transport and Communications Commission, which ceased to operate in 1959, provided that one of its functions should be ‘to assist the Security Council in accordance with Article 65’ (UN RP (1945–54) vol III, Art 65, p 414, para 4).

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221

  Agreements entered into between the UN and the specialized agencies under Arts 57 and 63. See ch 7, ‘United Nations Specialized Agencies’, particularly section 7, ‘Relationship agreements’. 222

  A provision—‘to co-operate with the Economic and Social Council in furnishing such information and rendering such assistance to the Security Council’ as it might request—was included in the relationship agreements with the International Labour Organization (ILO), the Food and Agriculture Organization (FAO), the Unied Nations Educational, Scientific and Cultural Organization (UNESCO), the International Civil Aviation Organization (ICAO), the World Health Organization (WHO), and the now defunct International Refugee Organization (IRO) (UN RP (1945–54) vol III, Art 65, pp 414–15, para 8). The relationship agreements with the IBRD and the IMF also provide for those specialized agencies to have due regard to Security Council decisions and to furnish it with information (ibid). 223

  General Assembly/Security Council, Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security Council on 31 January 1992, An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-Keeping, UN Doc A/ 47/277, 17 June 1992, para 26. 224

  See Breen, ‘The Necessity of a Role for the ECOSOC in the Maintenance of International Peace and Security’ (2007) 12 JCSL 261, at 275 for a discussion of the relationship between ECOSOC and the Security Council between the mid-1990s and the mid-2000s. 225

  SC Res 1212 (1988), para 8.

226

  The Group, composed of representatives of five member states on the basis of equitable geographical distribution, was to submit to ECOSOC ‘recommendations on how to ensure theat international community assistance to the efforts to support the Government of Haiti in achieving sustainable development is adequate, coherent, well coordinated and effective’ (ECOSOC Res 1999/4 (1999), para 4). The group was active for three months and was reactivated in 2004 (ECOSOC Dec 2004/322 (2004)). It has reported annually since 2005 and its mandate was most recently extended (until the conclusion of ECOSOC’s 2016 session). See ECOSOC Res 2015/18 (2015). 227

  ‘We welcome the recent improvement in the exchange of information between the Economic and Social Council and the Security Council, for example through regular meetings of their Presidents, and encourage both bodies to regularize these exchanges’ (High-Level Panel on Threats, Challenges and Change, ‘Report, A more secure world: Our shared responsibility’, annexed to UN Doc A/59/565, 2 December 2004, para 278) In 2004, as an example, the President of ECOSOC was invited, under Rule 39 of the Security Council’s Provisional Rules of Procedure, to attend three meetings of the Security Council to address the following topics: ‘The role of civil society in post-conflict peacebuilding’, ‘The role of business in conflict prevention, peacekeeping and post-conflict peacebuilding’, and ‘Complex crises and United Nations response’. Also in 2004, the Chairman of the Economic and Social Council’s Ad Hoc Advisory Group on Guinea-Bissau was invited to attend a meeting of the Security Council (UNSC RP (2004–07) ‘Participation’, Chapter III, Annex II, pp 98–9). See also at http://www.un.org/en/sc/repertoire/rules/ overview.shtml#rule7. 228

  For an early account, see generally Delbez, ‘Les pouvoirs du Conseil économique et social’ in Études en l’honneur de Georges Scelle (1950), 212. 229

  UN Charter, Art 62(1).

230

  UN Charter, Art 62(2).

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231

  There are, of course, other important aspects of ECOSOC’s work: among these are its work relating to the consultative status of NGOs, discussed in section 5.5.3, ‘Nongovernmental organizations’, and its work in relation to specialized agencies, discussed in ch 7, ‘United Nations Specialized Agencies’. 232

  See generally, Rucz, Le Conseil Économique et Social de l’ONU et la Coopération pour le Développement (1983). See, generally, ch 17, ‘Improving Social Conditions’. 233

  ‘Wealthy countries today prefer to channel their development funding through the World Bank or regional development banks, where weighted voting ensures control of both the agenda and proposed loans. Many developing countries prefer the UN route.’ See Chesterman, Johnstone, and Malone, Law and Practice of the United Nations: Documents and Commentary (2016), 400. 234

  ‘Despite the central position given to it in the UN Charter, the global policy-making importance of the ECOSOC in economic affairs has never been realized. As the number and importance of the developing countries increased, these countries felt underrepresented in the ECOSOC. Responding to developing-country pressure, the UN General Assembly established other policy-making organs that were perceived by developing nations as more amenable to their needs than the ECOSOC: the United Nations Conference on Trade and Development (UNCTAD), created in 1964; the United Nations Industrial Development Organization (UNIDO), also created in 1964; the United Nations Development Programme (UNDP), established in 1965; and the World Food Council (WFC), created in 1974. These organs have proved to be more important fora for debates over international economic policy than has ECOSOC. UNCTAD, in particular, has largely taken over the task of coordinating policy options concerning trade and development.’ See Zamora, ‘Economic Relations and Development’ in The United Nations and International Law (ed Joyner, 1997), 235–6. 235

  Rosenthal, n 1, 141. Chesterman, Johnstone, and Malone note that on issues such as the debt crises affecting developing countries, solutions are often negotiated outside the UN system, eg the G-7 leadership in close cooperation with the IMF, World Bank, and Paris Club of official creditors (Chesterman, Johnstone, and Malone, n 233, 400). 236

  Trauttmansdorff, n 25, 39. He took a similar view as regards ECOSOC’s role with the General Assembly’s Third Committee (Social, Humanitarian and Cultural). He continued, ‘the group of persons dealing in New York and Geneva as well as in the capitals of the members with issues on the agenda of ECOSOC on the one hand and of the Second and Third Committee of the [General Assembly] on the other, is to a wide extent practically identical’, and so it makes sense that the decisions of ECOSOC are mostly endorsed without change by the General Assembly (ibid). 237

  See Report of the Secretary General, n 1, para 165.

238

  See, generally, ch 18, ‘Improving Economic Wellbeing’.

239

  Rosenthal, n 1, 141.

240

  As to the functions of the specialized agencies, see ch 7, ‘United Nations Specialized Agencies’, particularly, section 9, ‘Overview of mandates’. 241

  See ch 22, ‘Promotion and Protection of Human Rights’.

242

  The Commission on Human Rights was established by ECOSOC Res 5 (I) (1946). On 27 March 2006 it concluded its 62nd and final session. Following the decision of the General Assembly to establish the HRC (GA Res 60/251 (2006)), ECOSOC decided to abolish the Commission with effect from 16 June 2006 (ECOSOC Res 2006/2 (2006)). For a discussion of the UN’s human rights functions—including the past work of the Commission and the

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current work of the HRC, see ch 22, ‘Promotion and Protection of Human Rights’, particularly section 3, ‘The Human Rights Council’. 243

  A Functional Commission established by ECOSOC in 1946. See ECOSOC Res 11 (II) (1946). 244

  An Expert Body established by ECOSOC in 1985. See ECOSOC Res 1985/17 (1985).

245

  ECOSOC Res 1999/4 (1999). While the Group was active for only three months, it was reactivated in 2004. See n 226. 246

  GA Res 55/217 (2000).

247

  ECOSOC Res 2002/1 (2002). This also represented follow-up on a Ministerial Declaration of the high-level segment submitted by the President of ECOSOC and approved by ECOSOC (see UN Doc A/56/3/Rev.1, 2002, pp 20–7). 248

  ECOSOC Dec 2002/304 (2002).

249

  ECOSOC Dec 2003/311 (2003).

250

  GA Res 60/1 (2005), para 97.

251

  ibid, para 101(b).

252

  SC Res 1645 (2005); GA Res 60/180 (2005).

253

  ‘Decides that the Organizational Committee shall… establish the agenda of the [Peacebuilding] Commission based on…Requests for advice from the Economic and Social Council or the General Assembly with the consent of a concerned Member State in exceptional circumstances on the verge of lapsing or relapsing into conflict and with which the Security Council is not seized in accordance with Article 12 of the Charter’ (SC Res 1645 (2005), para 12(b); GA Res 60/180 (2005), para 12(b)). It was stressed that the advice of the PBC will be of particular relevance to ECOSOC, ‘bearing in mind its role as a principal body for coordination, policy review, policy dialogue and recommendations on issues of economic and social development’ (SC Res 1645 (2005), para 17; GA Res 60/180 (2005), para 17). 254

  Held on 4 June 2012 in the ECOSOC Chamber in New York. For a ‘Concept Note’ on this event, see http://www.un.org/en/ecosoc/newfunct/pdf/ 2012_joint_event_ecosoc_pcb_concept_note.pdf. 255

  ECOSOC Res 2011/43 (2011), para 8.

256

  GA Res 68/1 (2013), para 30. See also GA Res 61/16 (2013), paras 20–4.

257

  Röben describes the General Assembly’s efforts to reform ECOSOC as ‘continuous’. See Röben, n 8, 1671, para 3. See also, generally, Hüfner and Spröte, ‘Zur Reform des Wirtschafts- und Sozialbereichs der Vereinten Nationen’ in Die Reform der Vereinten Nationen (ed Hüfner, 1994), 99; Seidel, ‘Ist die UN-Charta noch zeitgemäß?’ (1995) 33 Archiv des Völkerrechts 21, generally and at 64, where he identifies as a first priority the clarification of the complex relations between ECOSOC, the General Assembly, and the Secretariat. 258

  Rosenthal, n 1, 143.

259

  GA Res 208 (III) (1948). The Resolution was the outcome of discussions submitted in the first three sessions of the General Assembly to increase the membership of ECOSOC (UN RP (1945–54) vol III, Art 61, pp 186–90, esp p 187). 260

  A UNDP study was carried out under the leadership of Sir Robert Jackson, and the resulting report was known as ‘The Capacity Report’ (UN Doc DP/5, 1969). The Report envisaged significantly increased powers for the UNDP and focused on the UN bureaucracy.

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While the plan was approved by ECOSOC and the General Assembly, it was never implemented. See Franda, n 7, 168. 261

  In September 1975, the General Assembly convened a special session, devoted to development and international economic cooperation (GA Res 3172 (XXVIII) (1973); GA Res 3343 (XXIX) (1974)), at which it established the Ad Hoc Committee on the Restructuring of the Economic and Social Sectors of the United Nations System (GA Res 3362 (S-VII) (1975) Part VII, para 1). The Ad Hoc Committee was charged with preparing proposals for restructuring and improving the economic and social sectors of the UN system, taking into account a May 1975 report of the Group of Experts on the Structure of the United Nations System (UN Doc E/AC.62/9, 28 May 1975). The proposals for reform in the 1975 report focused on two main areas: ‘the manner in which the General Assembly and the Economic and Social Council should conduct their deliberative and policy-making efforts; and the ways in which the organization and operation of UN programs should be structured to achieve effective implementation of goals’. See Meltzer, ‘Restructuring the United Nations System: Institutional Reform Efforts in the Context of North–South Relations’ (1978) 32 International Organization 998. In 1977, the General Assembly endorsed the conclusions and recommendations of the Ad Hoc Committee’s Report (though it modified certain of its paragraphs), invited the Secretary-General to appoint a Director-General for Development and International Economic Cooperation as soon as possible, and further invited the Secretary-General to submit a report to ECOSOC on how he planned to implement the Report’s recommendations (GA Res 32/197 (1977), with the Report annexed thereto). Among the Report’s recommendations was the discontinuance of ECOSOC’s expert and advisory bodies unless ECOSOC took affirmative action to renew and redefine their mandates, the streamlining and possible discontinuance of its standing intergovernmental committees, the redefinition and regrouping of the terms of reference of its functional commissions, and a prohibition (to the extent possible) on the establishment of new subsidiary bodies (GA Res 32/197 (1977), Annex, Section II, paras 10–13). In addition, the Report recommended that ‘consideration should be given to ways and means of making the Council fully representative’ (ibid, para 13). ‘After two years of arduous negotiations, the UN had accepted the most ambitious internal reorganization plans since its inception’ (Meltzer, above, 1009). 262

  In 1985, the General Assembly established the Group of High-Level Intergovernmental Experts to Review the Efficiency of the Administrative and Financial Functioning of the United Nations (GA Res 40/237 (1985)). Its 1986 report called for ‘a careful and in-depth study of the intergovernmental structure in the economic and social fields’ (see UN Doc A/ 41/49, 1986, Recommendation 8, as cited in Rosenthal, n 1, 144), which the General Assembly decided ECOSOC should carry out (GA Res 41/213 (1986), Section I, para 1(e)). In 1987, ECOSOC established a Special Commission of the Economic and Social Council on the In-Depth Study of the United Nations Intergovernmental Structure and Functions in the Economic and Social Fields (ECOSOC Dec 1987/112 (1987)). The General Assembly took note of the Special Commission’s Report, noting ‘that, although the Special Commission had conducted the in-depth study entrusted to it, the Special Commission was unable to reach agreed recommendations’ (GA Res 43/174 (1988)). According to Rosenthal, ‘some but not all of [the Special Commission’s] recommendations have been reflected in subsequent Assembly resolutions. In particular, resolution 50/227 [of 1 July 1996] expressly assigns the policy-guidance role to the General Assembly and emphasizes ECOSOC’s coordination role’. See Rosenthal, n 1, 144–5. See also GA Res 45/254 A (1990), which calls for the continued implementation of the provisions of GA Res 41/213 (1986). 263

  Report of the High-Level Panel, n 8.

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264

  Report of the Secretary General, n 1.

265

  GA Res 60/1 (2005).

266

  The changes were described as ‘brief and pedestrian’ by Franda, n 7, 158.

267

  ‘Some advocated [ECOSOC’s] transformation into a smaller, more powerful body, often described as a “World Security Council” or a “Security Council for Development.” Others suggested changes that might allow ECOSOC to concentrate on political issues while assigning administration of UN social and economic operational activities to separate nonpolitical “expert” bodies and organizations. A third proposal would have divided ECOSOC in two, with half of it becoming a “social council,” the other half an “economic council.” A fourth, less drastic idea was to simply establish a small “Executive Committee” within ECOSOC that would meet between ECOSOC’s large and relatively unproductive sessions and presumably establish more effective decision-making and managerial processes’ (ibid, 157). See also Rosenthal, n 1, 141–3, who outlines various proposals for ECOSOC reform from various scholars and analysts. 268

  The Panel noted that ‘the Charter allowed for the creation of specialized agencies independent of the principal United Nations organs, reducing the role of the Economic and Social Council to one of coordination’ (Report of the High-Level Panel, n 8, para 274). 269

  The Report noted that ‘decision-making on international economic matters, particularly in the areas of finance and trade, has long left the United Nations and no amount of institutional reform will bring it back… . It would not, however, be realistic to aim for the Economic and Social Council to become the centre of the world’s decision-making on matters of trade and finance, or to direct the programmes of the specialised agencies or the international financial institutions.’ See ibid, para 274. 270

  To this end, the Report recommended that it establish a Committee on the Social and Economic Aspects of Security Threats, and that it use its powers to commission research and develop better understanding about the economic and social threats to peace and other threats such as terrorism and organized crime. It noted improvements in the exchange of information between the Security Council and ECOSOC. See ibid, para 276. 271

  ibid, para 277.

272

  To this end, the Report recommended: (i) a new approach to ECOSOC’s agenda such that it focused less on administrative issues and programme coordination and instead on the major theme in the Millennium Declaration; (ii) the establishment of a small executive committee to provide orientation and direction to ECOSOC’s work; (iii) that the annual meetings between ECOSOC and the Bretton Woods institutions focus on the Millennium Development Goals and the Monterrey Consensus; (iv) that ECOSOC should aim to provide guidance on development cooperation to the governing boards of the UN funds, programmes, and agencies; and, (v) that ECOSOC should support the Secretary-General and the United Nations Development Group ‘to strengthen the coherence of UN action at the field level and its coordination with the Bretton Woods institutions and bilateral donors’. See ibid, para 278. 273

  ibid, para 280. ‘One way of moving forward may be to transform into a leader’s group the G20 group of finance ministers (…) with regulation attendance by the International Monetary Fund, the World Bank, WTO and the European Union.’ The Report recommended that the President of ECOSOC, as well as the Secretary-General, be invited to attend such meetings to ensure strong support for UN programmes and initiatives (ibid, para 281). 274

  Report of the Secretary General, n 1.

275

  ibid, para 165.

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276

  ibid, para 176.

277

  ibid, para 177.

278

  ibid, para 178.

279

  ibid, para 179.

280

  One ‘not necessarily restricted by the current annual calendar of “segments” and “substantive session”’ (ibid, para 180). 281

  ibid, para 180. He proposed that this could be achieved by expanding its Bureau, or by establishing an Executive Committee with a regionally balanced composition. 282

  GA Res 60/1 (2005).

283

  ibid, para 155(a). This recommendation was acted upon by GA Res 61/16 (2006), which made provision for the promotion of dialogue (para 2), as well as stressing the importance of ECOSOC’s humanitarian affairs work (paras 12–14). See also GA Res 68/1 (2013). 284

  GA Res 60/1 (2005), para 155(b). This recommendation was acted upon by the General Assembly in 2006. As discussed in para 5.33, the General Assembly mandated that the DCF was to be a part of the High-Level Segment of ECOSOC (GA Res 61/16 (2006), para 3). The role of this forum is to ‘(a) Review trends and progress in international development cooperation and give policy guidance and recommendations to promote more effective international development cooperation; (b) Identify gaps and obstacles with a view to making recommendations on practical measures and policy options to enhance coherence and effectiveness and to promote development cooperation for the realization of the internationally agreed development goals, including the Millennium Development Goals; [and] (c) Provide a platform for Member States to exchange lessons learned and share experiences in formulating, supporting and implementing national development strategies’ (ibid, para 4). It is to be open to participation by ‘all stakeholders, including the organizations of the United Nations, the international financial and trade institutions, the regional organizations, civil society and private sector representatives’ (ibid). In 2013, the General Assembly reiterated the need for the High-Level Panel to continue to discharge its functions, ‘in particular the biennial two-day Development Cooperation Forum’ (GA Res 68/1 (2013), para 11(c)). By the same Resolution, the General Assembly decided that the DCF should continue to take into consideration the Istanbul Programme of Action in its work (ibid, para 20). It first met in 2007, and had its 5th biennial meeting in July 2016 (see at https://www.un.org/ecosoc/en/node/310191). 285

  GA Res 60/1 (2005), para 155(c).

286

  ibid, para 155(d).

287

  ibid, para 155(e).

288

  ibid, para 156.

289

  See section 4.2, ‘Annual programme of work’ regarding ECOSOC’s programme of work.

290

  See section 3.4, ‘Follow-up’ and accompanying text regarding ECOSOC’s role in followup. 291

  For example, the General Assembly indicated that ECOSOC should ‘devote more time to the specific needs of countries in special situations, namely the least developed countries, the landlocked developing countries, the small island developing states and Africa’ (GA Res 68/1 (2013), para 19).

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Part 2 The United Nations: What it is, 6 Subsidiary Organs Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): International organizations

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(p. 152) 6  Subsidiary Organs 1.  Introduction 6.01 2.  Powers to establish subsidiary organs 6.14 3.  Legal status of subsidiary organs 6.20 4.  Powers of subsidiary organs 6.22 5.  Nature of the functioning of subsidiary organs 6.29 6.  Joint subsidiary bodies 6.39 7.  Subsidiary organs functioning in a dual capacity 6.41 8.  Entities similar in nature to subsidiary organs 6.43 9.  Subsidiary organs of the General Assembly 6.48 10.  Subsidiary organs of the Security Council 6.88 11.  Subsidiary organs of ECOSOC 6.119 12.  Subsidiary organs of the Secretary-General 6.140 Bowett, ‘The Security Council’ in The United Nations: The First Ten Years (ed Wortley, 1951), 19; Bowett, United Nations Forces: A Legal Study of United Nations Practice (1964); Conforti and Focarelli, The Law and Practice of the United Nations (2010); Fleischhauer and Simma, ‘Article 13’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 525; Giacca and Riedel, ‘Article 68’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1736; Goodrich and Hambro, Charter of the United Nations: Commentary and Documents (1949); Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (1950); Khan, ‘Article 22’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 719; Lippold and Paulus, ‘Article 7’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 387; New Zealand Ministry of Foreign Affairs and Trade, United Nations Handbook 2016– 17: An Annual Guide for Those Working with and within the United Nations (2016); Paulus, ‘Article 29’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 983; Peterson, ‘General Assembly’ in The Oxford Handbook on the United Nations (eds Daws and Weiss, 2008), 97; Reuter, ‘Les Organes Subsidiaires des Organizations Internationales’ in Hommage d’une Génértion de Jurists au Président Basdevant (1960), 415; Rudolf, ‘United Nations Committees and Subsidiary Bodies, System of’ in MPEPIL (October 2006); Sarooshi, ‘The Legal Framework Governing United Nations Subsidiary Organs’ (1996) 67 BYIL 413; Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (1999); Schermers and Blokker, International Institutional Law: Unity within Diversity (2011); Sievers and Daws, The Procedure of the UN Security Council (2014); Szasz, ‘The Complexification of the United Nations System’ (1999) 3 MPUNYB 1; Torres Bernárdez, ‘Les organes des organisations internationales’ in Manuel sur les Organisations Internationales (ed Dupuy, 1998), 109.

(p. 153) 1.  Introduction 1.1  ‘Subsidiary organs’ and ‘principal organs’

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6.01  Hundreds of subsidiary organs operate (or have operated) under the UN system.1 These can range in size from a single individual—such as a peace mediator appointed by the General Assembly—to Peacekeeping Operations—such as the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO), a subsidiary organ of the Security Council that features over 22,000 personnel at the time of writing.2 As long ago as 1960, Reuter correctly described the proliferation of subsidiary organs as ‘one of the richest and most dynamic in terms of development aspects of international organizations’.3 6.02  Article 7(1) of the Charter identifies the six ‘principal organs’ of the UN;4 Article 7(2) authorizes the establishment of ‘[s]uch subsidiary organs as may be found necessary’.5 The term ‘subsidiary organ’ is not defined in the UN Charter, yet it appears clear from the wording of Article 7 that a UN organ may either be principal or subsidiary; it may not be both.6 Some appear to take the view that for an entity to (p. 154) be a ‘United Nations organ’, it must either be one of the six ‘principal’ organs listed in Article 7(1) of the Charter (or be acting as a part thereof), or must be a subsidiary organ.7 Others consider that there is scope for the existence of a ‘United Nations organ’ that is neither principal nor subsidiary.8 Certain entities operating within the UN system (for example, specialized agencies or treaty bodies) that are neither principal organs nor subsidiary organs, may, perhaps, best not be characterized as ‘United Nations organs’ at all.

1.2  Essential characteristics of a subsidiary organ 6.03  In the absence of a definition in the UN Charter, various characteristics have, from time to time, been said to be indicative that an entity is a subsidiary organ, including the name of the entity,9 the importance of its work, the duration of its existence, whether it works continuously or periodically, its composition, the method of appointment of its members, the field or scope of its activity, or the nature of its machinery. These factors are generally of limited value.10 6.04  Two elements, however, are generally considered essential for the characterization of an entity working within the UN system as a subsidiary organ: (a)  the entity must be created by, or under the authority of, a principal organ of the UN; and (p. 155) (b)  the entity must possess a level of independence from the principal organ by which, or under whose authority, it was created.

1.2.1  Creation by or under the authority of a principal organ 6.05  For an organ to be a ‘subsidiary’ of another, it must have been established by or under the authority of that other body.11 The term ‘subsidiary organ’ suggests organs created at the discretion of a principal organ, governed by a principal organ, and subject to termination by a principal organ.12 If this approach is followed strictly, however, an entity like the Military Staff Committee—the establishment and membership of which are provided for in the UN Charter itself13—could not be characterized as a ‘subsidiary organ’.14 As such, some have argued that there is need for a third type of UN organ—which is neither ‘principal’ nor ‘subsidiary’ in nature—to be known as a ‘treaty-based nonprincipal organ’ or an ‘auxiliary organ’.15 Neither term is widely used.16

1.2.2  Independent from a principal organ 6.06  A subsidiary organ must be independent from the principal organ that established it.17 Certain committees, commissions, working groups, etc of a principal organ may be distinguished from subsidiary organs on the basis that they do not possess the requisite level of independence but, instead, are an integral part of the principal (p. 156) organ itself.18 Similarly, regional offices19 and staff members20 ought not to be classed as

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‘subsidiary organs’; rather, they may be considered to be part of the principal organ that established them. Such sub-entities do not appear to have their legal bases in Articles 7(2), 22, 29, or 68 of the UN Charter; instead, they would appear to be based in the principal organ’s authority to adopt its own rules of procedure.21 6.07  Some have argued that an indicator that a sub-entity is part of the principal organ (and not a subsidiary organ) is the fact that a sub-entity does not function beyond the meetings of the principal organ (ie, that it is ‘sessional’),22 or that the sub-entity has an identical membership to the principal organ.23 Such arguments are to be treated with caution.

1.3  Significance of the characterization ‘subsidiary organ’ 6.08  It can, at times, be difficult to determine whether a body established by a principal organ—in particular a body that performs its work during a session of the principal organ— possesses the requisite level of independence to be classified as a separate, subsidiary organ, or whether it may better be deemed as part of the principal organ itself. Identifying whether an entity is an independent subsidiary organ or simply the principal organ acting through the entity is important because a subsidiary organ has fewer powers than a principal organ, and, more specifically, has only those powers that the principal organ has conferred upon it. The subsidiary organ acts (p. 157) under the authority of the principal organ24 and is limited, for example, as regards its powers to establish its own subsidiary organs (‘sub’-subsidiary organs).25 6.09  The question of whether an entity is a UN subsidiary organ or merely an entity working within the UN system—such as a specialized agency, or a treaty body—may also have legal implications. As will be discussed, certain powers and capacities may be attached to subsidiary organs that another entity would not possess, such as, for example, the enjoyment of the privileges and immunities of the UN or the right to fly the UN flag.26

1.4  Terminology 6.10  There is no consistency within the UN in relation to the terminology used for subsidiary organs. As noted in the Repertory of Practice, ‘In the practice of the United Nations such expressions as “commissions”, “committees”, “subsidiary organs”, “subsidiary bodies” and “subordinate bodies” have been used interchangeably.’27 In the words of the Principal Director in charge of the UN Legal Department: There is considerable difficulty in classifying [the subsidiary organs of the General Assembly] into a systematic pattern, since there are almost as many variations in the duration, structure, functions and other characteristics as there have been subsidiary organs themselves.28 6.11  Despite this difficulty, the name bestowed upon an entity by the principal organ that established it may, at times, be of significance where it indicates something about the functioning of the entity, for example that it is ‘sessional’ in nature.29 6.12  Attempts have been made to categorize subsidiary organs by function, but no authoritative categories have emerged: Doctrine has tried to introduce uniformity in the terminology. After some initial hesitation most recent publications bear witness to the considerable success and the wide acceptance today, at the doctrinal level, of the expression ‘subsidiary organs’, or ‘subsidiary bodies’, as the term more appropriate to an all-embracing

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description of the various organs of international organizations which, whatever their particular designation may be, fall under such a conceptual category.30 (p. 158) 6.13  While categories of subsidiary organs continue to be used,31 they are more for the purposes of finding convenient groupings of entities with common elements, rather than for providing meaningful definitional categories.32

2.  Powers to establish subsidiary organs 2.1  General and particular powers 6.14  Article 7(2) of the UN Charter provides a general power for the establishment of ‘[s]uch subsidiary organs as may be found necessary’.33 In addition, Articles 22 and 29 of the Charter grant the General Assembly and the Security Council respectively the particular power to ‘establish such subsidiary organs as it deems necessary for the performance of its functions’. Article 68 of the UN Charter makes a similar provision for ECOSOC—though without using the term ‘subsidiary organ’.34 The practice of the General Assembly, the Security Council, and ECOSOC in relation to subsidiary organs will be considered later in this chapter.35 6.15  No particular power to establish subsidiary organs is provided in the UN Charter for the other three principal organs, that is, the Trusteeship Council,36 the Secretariat,37 or the ICJ;38 instead, those organs must rely on the general power granted by Article 7(2) of the UN Charter.39

(p. 159) 2.2  Limitations on powers of establishment 6.16  The power of the principal organs to establish subsidiary organs should not be interpreted restrictively.40 The wording of the Articles providing a particular power to the General Assembly, the Security Council, and ECOSOC is somewhat more limited than that of the general power provided in Article 7(2) of the UN Charter: whereas Articles 22, 29, and 68 of the Charter all bestow on the principal organ an authority to establish such subsidiary organs as required for the performance of their functions,41 Article 7(2) merely provides a power to establish such subsidiary organs ‘as may be found necessary’.42 With each of the particular powers it seems clear from the wording that it falls to the principal organ to decide what is necessary.43 However, some take the view that the fact that functional limitations exist in Articles 22, 29, and 68 of the UN Charter (and are absent from Article 7(2)) indicates that only under Article 7(2) could the relevant principal organ establish subsidiary organs to undertake functions that those principal organs cannot themselves perform.44 6.17  In practice this functional limitation has been of little importance. There is nothing in the wording of the UN Charter to preclude the General Assembly, the Security Council, or ECOSOC from opting to establish a subsidiary organ under the general article, thereby avoiding any functional limitation, and it is not the practice of principal organs to indicate the legal basis under which a subsidiary organ has been (p. 160) created.45 The ICJ, in considering the basis of the General Assembly’s competency for establishing subsidiary organs, referred to both Articles 7(2) and 22 of the Charter,46 as did the UN OLA.47 6.18  In addition to any functional limitations that may exist under Articles 22, 29, or 68 of the UN Charter, there is also a general limitation that applies to the creation of subsidiary organs, whether based in the general power or a power particular to a principal organ: the principal organ must possess the power under the UN Charter—whether express or necessarily implied—to act in an area before it can empower a subsidiary organ to do so.48 There would appear, however, to be nothing that prevents a subsidiary organ from being charged by the principal organ with carrying out functions that the principal organ itself

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could not carry out—so long as the principal organ possesses an express or implied power to act in the area.49 (p. 161) 6.19  It has been argued that a principal organ does not possess the competence to delegate its powers of discretion to a subsidiary organ; however, this limitation does not appear to have been widely followed in practice.50 Nevertheless, it may be improper for a principal organ to delegate certain powers to a subsidiary, such as those powers relating to extremely sensitive matters that are fundamental to its sphere of responsibility.51 One example may be the Security Council’s enforcement powers under Article 42 of the UN Charter.52

3.  Legal status of subsidiary organs 6.20  Where subsidiary bodies have broad functions that cannot be performed without the exercise of certain legal capacities, they may be recognized as having been endowed with the necessary legal capacities.53 ‘However, not all subsidiaries qualify for such recognition and the capacities they exercise need not be the same.’54 Recognition that a subsidiary organ possesses necessary capacities does not mean that it possesses international personality separate from that of its parent organization. Subsidiary organs ‘cannot perform international acts or incur international obligations, except as expressly authorized by their parent bodies upon demonstration of possessing “full powers”. Their capacities are therefore derived from the personality of the parent body.’55 (p. 162) 6.21  When a subsidiary organ is created, it becomes a subsidiary organ of the UN as a whole and not just of the creating organ.56 As part of the UN,57 the conduct of subsidiary organs may be attributable to it.58

4.  Powers of subsidiary organs 4.1  Generally 6.22  The powers of these entities—and their level of autonomy from the principal organ under whose auspices they were created—vary considerably depending on the intention of the principal organ in establishing them and the nature of the functions conferred upon them.59 The representativeness of the subsidiary organ may, in practice, be a factor as regards its level of autonomy: it would appear to be less likely for a plenary meeting of a principal organ to scrutinize the recommendations of a subsidiary organ closely if all members of the plenary were represented on the subsidiary body.60 (p. 163) 6.23  Among the powers that have been recognized to be held by certain subsidiary organs are a power to request an ICJ Advisory Opinion,61 the power to bind the principal organ that established it,62 and the power to interpret its competence.63 Subsidiary organs enjoy the privileges and immunities of the UN,64 and may fly the UN flag.65 (p. 164) 6.24  Certain semi-autonomous subsidiary organs possess capacities not generally held by subsidiary organs, such as the capacity to contract, to acquire, and dispose of property, or to institute legal proceedings at the national level.66 Some subsidiary organs have the power to hire their own staff.67 6.25  In specific cases, and under appropriate legislative authority, subsidiary organs may establish subsidiary organs of their own.68 The legislative authorization for the ‘parent’ subsidiary organ to create a subsidiary organ may be implied.69 The powers of a ‘sub’subsidiary organ are limited by the parameters set by the parent subsidiary (p. 165) organ that established it, as well, of course, as by those imposed by the relevant principal organ.70 The membership of a ‘sub’-subsidiary organ need not be identical to that of the parent subsidiary organ.71 While a ‘sub’-subsidiary organ may be charged with considering areas vested by the principal organ in the parent subsidiary organ and making recommendations to the parent subsidiary organ, the parent subsidiary organ may not delegate its decision-

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making and approving powers to the ‘sub’-subsidiary organ, unless authorized to do so by the principal organ.72

4.2  Limitations on the powers of subsidiary organs 6.26  A subsidiary organ must not violate the delimitation of the UN Charter powers between principal organs,73 nor exceed the powers of the principal organ establishing it.74 A subsidiary organ is bound by UN Charter provisions that regulate or limit the conduct of the principal organ establishing it. As such, a subordinate organ (p. 166) established by the General Assembly is bound by the restriction in Article 12(1) of the UN Charter75 in the same way the General Assembly is so bound.76 6.27  Subsidiary organs have been held to lack the capacity to establish or participate in the establishment of a legal entity under the national laws of a member state,77 to put forward suggestions for the names of possible future Nobel Peace Prize winners,78 and to be unsuited to holding shares in or appointing representatives to act as directors of a private national company.79 All subsidiary organs, whether semi-autonomous in nature or not,80 must abide by the Statute of the Joint Inspection Unit.81 6.28  A subsidiary body ‘remains under the authority of the body which established it. It receives instructions from that body [and] should report back to it rather than communicate directly with other organs except as authorized by the parent body’.82

(p. 167) 5.  Nature of the functioning of subsidiary organs 5.1  Composition 6.29  Subsidiary organs may be composed of representatives of all states that are members of the principal organ that established them,83 of certain specified states,84 or of individuals85—or a single individual86—acting in an expert capacity. Beginning in the early 1960s, a tendency on the part of the main organs to lay down certain principles or conditions relating to membership developed, with an emphasis on the desirability of geographical distribution.87 Some subsidiary organs feature full members and associate members.88 6.30  There would appear to be no limitations on how a principal organ may appoint or elect the membership of a subsidiary organ.89 However, Article 8 of the UN Charter (p. 168) provides that there shall be no restriction on the eligibility of men and women to participate in any capacity and under conditions of equality in principal and subsidiary organs.

5.2  Participation 6.31  The General Assembly has, at times, invited UN member states that were not members of a subsidiary organ of limited membership to participate as observers and to be heard.90 Moreover, the General Assembly has, on rare occasion, invited non-UN member states to attend meetings of plenary subsidiary organs.91 6.32  Where membership in a subsidiary organ is said to be subject to the ‘all States formula’,92 the OLA takes the view that it includes ‘all States as opposed to States Members of the United Nations’.93 The ‘all States formula’ does not, however, allow for the participation of observers in the subsidiary organ concerned,94 unless such rights of participation have been specifically bestowed upon the observer, as, for example, was the case with the Palestine Liberation Organization (PLO).95 Non-(p. 169) governmental organizations do not possess any entitlement to attend or participate as observers in the work of the General Assembly or its subsidiary organs.96 This reasoning would appear to apply equally to other principal organs and their subsidiary organs.

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5.3  Procedure 6.33  Though the functioning of some subsidiary organs is provided for in the rules of procedure of the principal organ that established it, this is not always the case; some subsidiary organs have the power to establish their own rules of procedure.97 Moreover, the rules of procedure of the principal organ may distinguish between various types of subsidiary organ.98 6.34  There are differences regarding the need for and, if required, the size of the bureau for subsidiary organs. There are also wide variations in matters such as the functions bestowed on the Chair, who can attend as non-voting participants, etc.

(p. 170) 5.4  Capacity in which members act 6.35  With certain subsidiary organs, the members are expected to ‘act in their personal’ capacity, rather than as a representative of the member state of which they are a national.99 This is so, for example, for members of a subsidiary organ who possess judicial functions.100 In other cases, a member functions in what may be described as a ‘political’ capacity; that is to say, the member acts for the best interests of his/her government. The capacity in which a member acts may have an impact on his/her entitlement to payment by the UN for travel and subsistence.101 Whether the member is acting in an individual capacity or as a government representative is not always plain.102

5.5  Timing of meetings 6.36  Some subsidiary organs exist to serve the regular meetings of the principal organ that created them and are in session only when such annual regular meetings are in session.103 Some lack a permanent machinery. However, others, notably the semiautonomous subsidiary organs, function on a continuing basis.104

5.6  Duration of existence 6.37  Some entities were created in the early years of the UN and have been in continuous existence for over 60 years. Examples include the United Nations Joint Staff Pension Fund and the Advisory Committee on Administrative and Budgetary Questions. (p. 171) 6.38  Other subsidiary organs are created on an ad hoc basis, for a limited time or for the accomplishment of a particular purpose. These subsidiary organs are either specifically terminated by resolution,105 or merely considered to have lapsed once their specific function has been achieved.106 In yet other cases, the subsidiary organ continues to exist but is designated as inactive.107 In at least one case, where the principal organ did not provide for a subsidiary organ’s dissolution, it was found to continue to exist from a ‘purely legal point of view’, even though it no longer carried out most of its functions.108

6.  Joint subsidiary bodies 6.39  Certain subsidiary organs have been established jointly by two principal organs. Since 1976, the Committee for Programme and Coordination, previously established by ECOSOC, has been a joint responsibility of ECOSOC and the General Assembly.109 Similarly, the Peacebuilding Commission (PBC) was established jointly by the Security Council and the General Assembly in 2005, and reports to both.110 6.40  Beginning in the early 1960s, bodies were jointly established by the UN and certain specialized agencies for the first time.111 While ‘no general provisions [exist] in the (p. 172) Charter or in the rules of procedure of the principal organs of the United Nations referring specifically to the establishment of such bodies’, their establishment is nonetheless ‘considered permissible in appropriate circumstances by the application of the Charter provisions relating to the establishment of subsidiary organs’.112 Similarly, the International Trade Centre was established by an accord between UNCTAD (itself a subsidiary organ of the General Assembly) and the General Agreement on Tariffs and Trade (GATT; and now the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

World Trade Organization (WTO)), and its legal status as a subsidiary organ ‘of both the United Nations and GATT’ was confirmed by the General Assembly.113

7.  Subsidiary organ functioning in a dual capacity 6.41  While the United Nations Council for Namibia was established as a subsidiary organ of the General Assembly,114 it is distinguishable from other subsidiary organs because ‘it functions in a dual capacity: as a policy-making organ of the General Assembly and as the legal administering authority of Namibia’.115 ‘This latter characteristic…distinguished it from other United Nations subsidiary organs and it may, therefore, be considered as an organ sui generis for certain purposes.’116 ‘When the Council functions as a subsidiary organ properly speaking…its treaty-making power [is] derived from and is exercised by the United Nations.’117 As the Administering Authority over Namibia, however, ‘it had been expressly endowed by the General Assembly with certain competencies and functions of a representational character which are exercised by the Council on behalf of Namibia’.118 (p. 173) 6.42  Arguably, UN subsidiary organs that functioned as administering authorities —such as UNMIK119 and the UN Transitional Authority in East Timor (UNTAET) (1999– 2002)120—may be said to function in a dual capacity.121

8.  Entities similar in nature to subsidiary organs 8.1  Treaty bodies 6.43  The term ‘treaty bodies’ deals with bodies established by certain treaties and charged with performing a supervisory role over the treaty regime. They are neither specialized agencies, nor subsidiary organs; however, they may have a relationship with the UN that is ‘analogous to [that of] a subsidiary organ’.122 Treaty organs must function in accordance with the provisions of the treaties which create them and give them tasks to perform. As they are organs of the United Nations, they are subject to the general budgetary and administrative authority of the Assembly in all matters which do not impede or prevent them from carrying out the provisions of the treaties; but General Assembly resolutions cannot amend treaties, and until the treaties are formally amended by one of the recognized procedures, resolutions which conflict with them have no legal effect in respect of the treaty organs concerned.123 6.44  There are currently nine treaty human rights bodies that have been established by the treaties they are charged with overseeing and which must function in accordance with the provisions of those treaties.124 A tenth treaty body—the Committee on Economic, Social and Cultural Rights (CESCR)—was not created by the treaty it oversees (the ICESCR); rather, it was established by ECOSOC to carry out a similar role.125 6.45  The Consultative Committee of Experts established under the Convention on the Prohibition of Military or Any other Hostile Use of Environmental Modification (p. 174) Techniques, while not a subsidiary organ, has been described in the Repertory of Practice as possessing ‘characteristics similar to those of “treaty organs” of the United Nations’.126

8.2  Specialized agencies 6.46  Specialized agencies127 are entities established by intergovernmental agreements, with ‘wide international responsibilities, as defined in their basic instruments, in economic, social, cultural, educational, health, and related fields’,128 that have entered into relationship agreements with the UN. These independent intergovernmental organizations

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feature their own membership, organs, staff, and Secretaries-General, and are generally thought to be clearly different in nature from subsidiary organs.129 6.47  Nevertheless, there is scope for confusion between specialized agencies and a particular type of subsidiary organ: ‘semi-autonomous’ subsidiary organs.130 First, there may be overlap in the subject matter of the two types of entity. Indeed, one short-lived specialized agency, the International Refugee Organization (IRO), was replaced by a semiautonomous subsidiary organ of the General Assembly, the UN High Commissioner for Refugees (UNHCR). Conversely, the United Nations Industrial Development Organization (UNIDO) began its life as a subsidiary organ of the General Assembly, but was reinvented as a specialized agency, ‘with the same name and substantially the same structure’.131 Moreover, the fact that semi-autonomous subsidiary organs possess a significant degree of independence from the organization—‘generally with at least one political body and head who directs a special secretariat for the organ’132—may contribute to the perception that they are similar in nature to specialized agencies.133

(p. 175) 9.  Subsidiary organs of the General Assembly 9.1  Generally 6.48  As already noted, the General Assembly is empowered to create subsidiary organs by two separate provisions of the Charter, one general134 and one particular to it.135 The General Assembly Rules of Procedure feature a Section XVIII, entitled ‘Subsidiary Organs of the General Assembly’;136 other Rules for dealing with ‘Committees’ are found in a separate section. 6.49  From 1945 to 1984, the UN Secretariat, through its Repertory of Practice of United Nations Organs, kept careful records of the 348 subsidiary organs that were established, continued, or modified by the General Assembly during the period.137 With the advent of the Internet, current listings of subsidiary organs are found on the General Assembly website. However, this is not without its difficulties: first, the listings do not record subsidiary organs that have ceased functioning; and, second, different approaches to identifying and characterizing the General Assembly’s subsidiary organs have emerged, depending on the particular website and when it was prepared. Nor is the General Assembly website complete in all respects.138 As such, caution must be exercised. At the time of writing, the website of the General Assembly reflected the work of the 71st session.139 6.50  Relying on the approach of the General Assembly, this discussion will consider the subsidiary organs created by the General Assembly in the following order: (p. 176) 1.  Main Committees; 2.  Other Committees mentioned in the General Assembly Rules of Procedure (two Procedural Committees and two Standing Committees); 140 3.  Other entities, whether outlined by the General Assembly website as ‘subsidiary organs’, or generally considered as such.

9.2  Main Committees 9.2.1  Generally 6.51  The following are the General Assembly’s Main Committees: •  First Committee (Disarmament and International Security Committee);

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•  Second Committee (Economic and Financial Committee); •  Third Committee (Social, Humanitarian, and Cultural Committee); •  Fourth Committee (Special Political and Decolonization Committee); •  Fifth Committee (Administrative and Budgetary Committee); •  Sixth Committee (Legal Committee). 6.52  Whether the Main Committees of the General Assembly were established as subsidiary organs of the General Assembly or are an integral part of it has been debated over the years, but no clear answer has emerged.141 Nor is the UN Secretariat consistent in its treatment of the Main Committees; while the website of the General Assembly lists the Main Committees separately from its listing of subsidiary organs, (p. 177) it, nevertheless shows them to be a subcategory of subsidiary organs in places. Commentators, too, are divided on the issue.142 6.53  All member states may be represented on the Main Committees.143 Each Main Committee is specifically authorized to set up sub-committees, which shall elect their own officers.144 The meetings of the Main Committees are to be held in public, unless the organ concerned decides that exceptional circumstances require that the meeting be held in private.145 The Committees consider and debate agenda items pertaining to their responsibilities with a view to finding agreement among states on these matters. The Main Committees present draft resolutions and decisions to the General Assembly plenary for its consideration. For a discussion of a report of a Main Committee to take place in a plenary meeting of the General Assembly, at least one-third of the members present and voting at the plenary meeting must consider such a discussion to be necessary.146 This provision, adopted by a narrow majority in 1949, would appear to reflect the view that there is limited need for control of the Main Committees by the General Assembly.147

9.2.2  Bureau 6.54  Each of the Main Committees shall elect, by secret ballot,148 a Chair, three ViceChairs149 and a Rapporteur,150 ie their ‘Bureau’, on the basis of equitable geographical distribution, experience, and personal competence.151 It falls to the Chair to declare the opening and closing of each meeting of the committee, direct its discussions, ensure observance of the rules, accord the right to speak,152 put questions, and (p. 178) announce decisions.153 He/she shall rule on points of order and, subject to the Rules of Procedure, have complete control of the proceedings at any meeting and over the maintenance of order.154 The Chair remains under the authority of the Committee in the exercise of his/her functions.155

9.2.3  Voting 6.55  Each member of the Committee shall have one vote.156 The Chair may not vote; however, another member of his/her delegation may vote in his/her place.157 Decisions of the Main Committees are made by a majority of the members present and voting, ie members casting an affirmative or negative vote; abstentions are not considered votes.158 Although the Chair may declare a meeting open and permit debate where at least onequarter of the members of the Committee are present, there must be a majority of members for any decision to be taken.159

9.2.4  Relationship with General Assembly plenary 6.56  Given that all members of the General Assembly are entitled to participate in the meetings of the Main Committees, arguments have been made over the years to the effect that the level of discussion of the work of a Main Committee ought to be limited at the plenary session, lest there be needless repetition of arguments previously made in a committee.160 One measure that has been taken to address this issue is a requirement in From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

the Rules of Procedure that where a Main Committee has issued a report, it may not be discussed in plenary unless, after a vote taken without debate, at least one-third of the members present and voting consider such discussion to be necessary.161 The Rules of Procedure also provide that the General Assembly shall not, unless it decides otherwise, make a final decision on any agenda item until it has received the report of a Main Committee on the item.162 There are a number of procedural differences between the Main Committees and the plenary.163 This has led to some arguing that the work of the Main Committees was technical in nature, (p. 179) and ‘it was for the Assembly in plenary meeting to assess the work of the committees from a political point of view’.164

9.2.5  Composition 6.57  All member states are represented on each of the six Main Committees. As membership in the UN and the length of the agendas have expanded, there have been increased time pressures on Main Committees, which need to report draft resolutions to the plenary by early December.165 In an effort to accommodate the smaller delegations, there is a practice of never having more than three Main Committees meeting simultaneously.166 Deliberations on a particular item in the Main Committees are divided into three phases: broad debate, detailed consideration of proposed resolutions, and voting.167

9.2.6  Subject areas 9.2.6.1  Disarmament and International Security Committee (‘First Committee’) 6.58  This Committee, originally known as the ‘Political and Security Committee (including the regulation of armaments)’,168 is charged with matters relating to disarmament and international security, including arms reduction, reduction of military budgets, prevention of an arms race in outer space, the strengthening of security and cooperation, the review and implementation of declarations or resolutions of the General Assembly on disarmament issues, etc.169 Since the 10th special session of June 1978, it has been especially concerned with issues of disarmament.170

9.2.6.2  Economic and Financial Committee (‘Second Committee’) 6.59  The Second Committee considers matters such as permanent sovereignty for the Palestinian people, questions of trade and finance, sustainable development, globalization issues, and the eradication of poverty.171 It also considers and debates ECOSOC’s annual report.

9.2.6.3  Social, Humanitarian, and Cultural Committee (‘Third Committee’) 6.60  This Committee deals with matters relating to the promotion of human rights, including (p. 180) children’s rights, rights of indigenous peoples, the right of selfdetermination, and issues relating to social development and the advancement of women. It considers the annual report of the Human Rights Council and the High Commissioner for Refugees, as well as issues relating to drug control and crime prevention.172 In addition, it considers reports from some treaty bodies.173

9.2.6.4  Special Political and Decolonization Committee (‘Fourth Committee’) 6.61  This Committee, originally known as the ‘Trusteeship Committee (including non-SelfGoverning Territories)’,174 reflects a 1993 merger of the Special Political Committee175 and the Committee on Decolonization.176 The agenda items dealt with by it include international cooperation in the peaceful uses of outer space, the University for Peace, the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), and information on non-self-governing territories.177 The General Assembly’s Special Commission on Peacekeeping Operations,178 established in 1965 to conduct a comprehensive review of all issues relating to peacekeeping, reports to the General Assembly through the Fourth Committee. When, in 1994, the last trusteeship territory became a member state of the UN, the Committee lost much of its significance. In more recent years, it has ‘shifted the focus of its work more and more towards the problems of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

regions without self-government’.179 For example, in 2016, the Fourth Committee forwarded texts and/or draft resolutions to the General Assembly on Israeli practices in Occupied Arab Lands, UNRWA, and the question of Gibraltar. Throughout its session, it discussed a wide range of agenda items, including outer space, public information, and atomic radiation.180

9.2.6.5  Administrative and Budgetary Committee (‘Fifth Committee’) 6.62  No resolution in respect of which expenditures are anticipated shall be voted on by the General Assembly until the Fifth Committee has stated the effect of the proposal on the budget.181 The Committee considers budgetary and financial matters such as the financing of UN Peacekeeping Operations, means to improve the finances of the organization, and the financing of the ad hoc international criminal tribunals. It also looks at the scale of assessments for the apportionment of the UN’s expenses.182 The Fifth Committee is assisted in its work by the Advisory Committee on Administrative (p. 181) and Budgetary Questions (ACABQ),183 whose members are appointed by the General Assembly,184 based on elections held by the Fifth Committee.185 While the Fifth Committee may accept, reject, or amend any recommendation it receives from the ACABQ, in reality the power of the ACABQ is considerable, due in part to the pressure of work on the Fifth Committee. The Fifth Committee is also assisted by the Committee on Contributions.186

9.2.6.6  Legal Committee (‘Sixth Committee’) 6.63  The agenda items allocated to the Sixth Committee include the consideration of various legal issues under review by the General Assembly,187 various legally themed reports submitted by sub-entities established by the General Assembly,188 issues relating to the granting of observer status in the organization,189 and matters relating to the revitalization of the work of the General Assembly.190 A substantial portion of its programme of work is devoted to the consideration and debate of the Report of the ILC. Although the Sixth (p. 182) Committee drew up the Genocide Convention, it no longer drafts conventions itself; instead, it establishes special committees for the preparation of legal texts.191

9.3  Procedural Committees and Standing Committees 9.3.1  Generally 6.64  The General Assembly Rules of Procedure provide for the establishment of the General Committee and the Credentials Committee, known as ‘Procedural Committees’, and the ACABQ and the Committee on Contributions, known as ‘Standing Committees’. Unlike the Main Committees, these four Committees are not committees of the whole. 6.65  The website of the General Assembly does not list the Credentials Committee or the General Committee under the heading ‘Subsidiary Organs’; instead it refers to them as ‘Other Committees’ and lists them on the same page as the Main Committees.192 However, it does include the ACABQ and the Committee on Contributions on its listing of subsidiary organs;193 no explanation is given. It has been argued that because the ACABQ and the Committee on Contributions are Standing Committees, and, therefore function beyond the session, they are more in the nature of subsidiary organs, whereas the General Committee and the Credentials Committee, which functions only during the session, are more a part of the General Assembly itself.194 On its own website, the ABACQ characterizes itself as a subsidiary organ of the General Assembly.195 The Committee on Contributions has been characterized as a subsidiary organ of the General Assembly by the UN OLA.196

9.3.2  General Committee

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6.66  The General Committee is composed of representatives from 28 member states. It features the President of the General Assembly, the 21 Vice-Presidents, and the Chairs of the six Main Committees.197 No two members of the General Committee (p. 183) shall be members of the same delegation.198 The General Committee is to be representative in character.199 The Chairs of other committees, upon which all members have the right to be represented and which are established by the General Assembly to meet during the session, may attend the General Committee and participate without vote.200 A member of the General Assembly that has no representative on the General Committee and which has requested the inclusion of an item in the agenda is entitled to attend any meeting of the General Committee at which its request is discussed, and may participate, without vote, in the discussion of that item.201 6.67  At the beginning of each session, the General Committee considers the provisional agenda and makes recommendations to the General Assembly regarding the inclusion of items on, or their rejection from, the agenda.202 It proposes the assignment of the various agenda items to either one (or more) of the Main Committees, to the General Assembly plenary, or to both.203 The Committee may propose the delisting of an agenda item; however, it has never done so.204 The functions of the General Committee are procedural in nature rather than political.205 It should not discuss the substance of any item, except in so far as this bears upon the question of its inclusion in or rejection (or postponement) from the agenda and what priority should be accorded to an item where the Committee recommends inclusion.206 The General Committee also makes recommendations to the General Assembly concerning the closing date of the session.207

9.3.3  Credentials Committee 6.68  The Rules of Procedure of the General Assembly call for the establishment of a Credentials Committee at the beginning of each session of the General Assembly.208 It is to consist of nine members, to be appointed by the General Assembly at the proposal of the President.209 It must elect its own officers.210 It shall examine the credentials of representatives, previously submitted to the Secretary-General,211 and ‘report without (p. 184) delay’.212 While the work of the Committee is in most cases administrative, it can become highly political in nature, in particular when faced with rival claimants. In such cases, it must decide which of the rival applicants is to be approved, an exercise that may involve consideration of issues of legitimacy, effectiveness, or some combination of the two. In some instances—most notably with the case of apartheid South Africa—the Committee has rejected a state’s credentials even in the absence of a rival claimant.213 While the General Assembly Rules of Procedure require member states to present their credentials, if possible, not less than one week before the opening of the session214—and, moreover, call on the Credentials Committee to report to the General Assembly ‘without delay’215— practice has developed such that the Credential Committee reports are often submitted towards the end of the session. ‘This practice has been used to ensure that controversial credentials issues are deferred to the end of the session or conference at which time approval of credentials loses its relevance.’216

9.3.4  Advisory Committee on Administrative and Budgetary Questions 6.69  The ACABQ was established by the General Assembly in 1946, and its existence is provided for in the General Assembly’s Rules of Procedure.217 Originally consisting of nine members, it is charged with examining and reporting on the budget submitted by the Secretary-General to the General Assembly, advising the General Assembly concerning any administrative or budgetary matters submitted to it, examining on behalf of the General Assembly the administrative budgets of specialized agencies, and considering and reporting to the General Assembly on the auditors’ reports on the accounts of the UN and the specialized agencies.218 Its membership has been expanded several times, most recently to

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16.219 The ACABQ’s members are appointed by the General Assembly, and must include at least three financial experts of recognized standing.220

9.3.5  Committee on Contributions 6.70  In its 1st session the General Assembly appointed a 10-member Committee on Contributions, and requested it to submit a detailed scale for the apportionment of (p. 185) expenses for consideration at the second part of the 1st session of the General Assembly.221 Currently, the Committee is composed of 18 members who serve three-year terms.222 In addition to advising the General Assembly concerning the apportionment of the expenses of the organization, the Committee on Contributions is charged with advising on the assessments to be fixed for new members, on appeals by members regarding assessment, and on the action to be taken with regard to the suspension of voting rights in the General Assembly due to non-payment of assessed contributions.223

9.4  Other entities 9.4.1  Generally 6.71  As discussed previously, the main website of the General Assembly categorizes certain entities as ‘Subsidiary Organs’. While, to some, this may suggest that entities other than those falling within the ‘Subsidiary Organs’ category are not viewed by the General Assembly as subsidiary organs, this does not appear to be the case. For example, the fact that the Main Committees are not classified as ‘Subsidiary Organs’ by the General Assembly does not appear to be determinative of the issue.224 Similarly, certain entities established by the General Assembly and categorized by it as ‘Funds and Programmes’225 (also known as semi-autonomous subsidiary organs) instead of as ‘Subsidiary Organs’, have been characterized as subsidiary organs by the UN Legal Counsel and/or by the UN Secretariat in the Repertory of Practice.226

9.4.2  Entities listed as ‘Subsidiary Organs’ by the General Assembly 6.72  As of January 2017, the UN Secretariat listed 64 ‘Subsidiary Organs’ of the General Assembly, dividing them into the following five categories and 18 sub-categories: (1)  ‘Boards’,

227

comprising:

(a)  four ‘Boards’,

228

and

(b)  three ‘Executive Boards’; (2)  ‘Commissions’,

230

229

comprising:

(p. 186) (a)  six ‘Commissions’,

231

(b)  one ‘Advisory Commission’; (3)  ‘Committees’,

233

and

232

comprising six sub-categories:

(a)  eleven ‘Committees’,

234

(b)  nine ‘Ad hoc Committees’,

235

(c)  three ‘Advisory Committees’,

236

(d)  one ‘Executive Committee,’

237

(e)  one ‘High-level Committee’,

238

(f)  four ‘Special Committees’;

and

239

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(p. 187) (4)  ‘Councils and Panels’, (a)  three ‘Councils’, (b)  one ‘Assembly’;

241

comprising:

243

comprising:

and

242

(5)  ‘Working Groups, and others’, (a)  one ‘Panel’,

240

244

(b)  one ‘Working Group’,

245

(c)  two ‘Ad hoc Working Groups’,

246

(d)  four ‘Ad Hoc Open-Ended Working Groups’, (e)  five ‘Open-Ended Working Groups’, (f)  four ‘Other’.

248

247

and

249

(p. 188) 6.73  Analysis of the categories into which the General Assembly subsidiary organs are placed does not necessarily provide insight into the nature of the subsidiary organs’ functioning or structure. So, for example, grouping the Disarmament Commission, the International Civil Service Commission, the ILC, the United Nations Commission on International Trade Law (UNCITRAL), the United Nations Conciliation Commission for Palestine, and the PBC together under the heading ‘Commissions’, reveals nothing about their vastly different functions, structures, and levels of autonomy.

9.4.3  Other subsidiary organs 9.4.3.1  Semi-autonomous subsidiary organs 6.74  One category of subsidiary organs that may be conveniently grouped together, and which warrants special attention, comprises those subsidiary organs that possess a considerable amount of autonomy from the principal organs that created them and from the UN more broadly. This category of subsidiary organs has been variously styled as ‘quasiautonomous organs’,250 ‘special organs’,251 ‘operational agencies’,252 or ‘Programmes and Funds’.253 Generally speaking, the autonomy enjoyed by these subsidiary organs is manifested in the nature of their work,254 their distinct organizational structure (including, frequently, an executive head and staff),255 the fact that they function on (p. 189) a continuing basis,256 the fact that they are generally financed outside the regular budget,257 and the fact that, ‘in carrying out their mandate, these subsidiary organs have the authority to make final decisions within their terms of reference’.258 In the words of the UN Legal Counsel, ‘because of their special nature these subsidiary bodies have always been treated differently within the United Nations, which is reflected by the fact that the executive heads of special secretariats of these bodies are invited to participate in the work of the Administrative Committee on Coordination’.259 In addition, they may possess legal powers generally not held by subsidiary organs, including powers to ‘enter into contracts, to sue, to acquire, hold and transfer property, and to take any other legal action required in the performance of their functions’.260 6.75  The exact parameters of this category and the subsidiary organs that are considered to fall within it are debatable;261 however, the following subsidiary organs would appear to be generally considered to fall within this category:262 •  United Nations Children’s Fund (UNICEF);

263

•  United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA); 264

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•  Office of the United Nations High Commissioner for Refugees (UNHCR); (p. 190) •  United Nations World Food Programme (WFP);

266

•  United Nations Conference on Trade and Development (UNCTAD); •  United Nations Development Programme (UNDP); •  United Nations Population Fund (UNFPA);

265

267

268

269

•  United Nations Environment Programme (UNEP);

270

•  United Nations Office on Drugs and Crime (UNODC); •  United Nations Human Settlements Programme (UN-HABITAT);

271

and

•  United Nations Entity for Gender Equality and the Empowerment of Women (UN Women). 272 6.76  Other entities that have been classified as ‘Programmes and Funds’ by the UN (or some parts of it) include: International Trade Centre;273 United Nations Capital Development Fund (UNCDF); and United Nations Volunteers.274 6.77  Based on their high level of autonomy, these subsidiary organs have much in common with UN specialized agencies.275 However, unlike a specialized agency, semi-autonomous subsidiary organs do not possess international legal personality.276 The (p. 191) OLA has, moreover, confirmed that ‘despite enjoying a certain degree of autonomy’, they ‘are subsidiary organs of the United Nations’.277 As with any subsidiary organ, they are ‘subject to United Nations regulations, rules, policies and procedures’, and ‘the overall responsibility for [their] administration, management and operation…would vest with the United Nations’.278

9.4.3.2  Research and training institutes 6.78  Some commentators characterize research and training institutes as quasiautonomous subsidiary organs.279 The UN website does not count them as ‘Programmes or Funds’, as it does some other semi-autonomous subsidiary agencies; rather, it categorizes them separately. Either way, it is clear that they are subsidiary organs of the General Assembly.280

9.5  Functions of the subsidiary organs of the General Assembly 6.79  The subsidiary organs of the General Assembly considered so far have been set out according to the categories into which they have been placed. However, because, as already noted, these groupings may give little insight into the actual functioning of a particular subsidiary organ, a brief discussion of the areas in which the subsidiary organs function is warranted. While the discussion in this part focuses primarily on subsidiary organs, other entities—including ‘sub’-subsidiary organs and others—established by or under the authority of the General Assembly may be relevant.

9.5.1  Human rights and development 6.80  The number of bodies created by the General Assembly in the area of human rights and development would appear to exceed those in any other area. Entities have been established by or under the authority of the General Assembly to manage semi-autonomous subsidiary organs charged with human rights-related duties,281 to promote and protect (p. 192) human rights generally,282 to deal with particular human-rights related issues,283 and to create legal standards on human rights matters.284 The General Assembly also has had a leading role in formulating instruments for the realization of human rights: in 1948 it From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

adopted the UDHR, which was followed in 1966 by the International Covenant on Civil and Political Rights (ICCPR) and the ICESCR, as well as the Committee on the Elimination of Racial Discrimination (CERD), the Convention against Torture, the CEDAW, and the Convention on the Rights of the Child (CRC).285

9.5.2  Peace and security 6.81  While the UN Charter, at Article 24(1), confers primary responsibility for the maintenance of international peace and security on the Security Council, the role of the General Assembly in this regard is nonetheless important. The General Assembly has created entities to carry out functions relating to peacekeeping,286 peace and development,287 peacebuilding,288 and disarmament.289 These issues are discussed elsewhere in this volume.290

9.5.3  Internal functioning 6.82  A significant number of subsidiary organs or other entities established by the General Assembly are charged with matters directly relating to the successful running of the organization. One of the most important functions in this regard relates to the (p. 193) financing and auditing of the UN.291 Also included in the category of internal functioning are the entities charged with matters relating to staff remuneration (including pensions) and the resolution of staff disputes.292 A number of entities have been created over the years to attempt to improve the functioning of the organization or certain aspects thereof; several are currently in existence.293 Various other entities also make important contributions to the organization’s education and information functions.294

9.5.4  Promotion and development of international law 6.83  The General Assembly’s most significant subsidiary organ in this regard is the ILC, established in 1947.295 A number of entities established by the General Assembly have addressed a variety of legal issues, and, in some instances, have worked (or are currently working) towards the elaboration of international treaties.296

(p. 194) 9.5.5  Other issues of concern to the General Assembly 6.84  Among the other issues of concern on which the General Assembly has established subsidiary organs or other entities are refugees,297 the environment,298 population concerns,299 trade,300 and human settlements.301

9.6  Subsidiary organs of the General Assembly no longer in existence 6.85  Many subsidiary organs established by the General Assembly are no longer in existence as they have served their purposes. Included here is the ad hoc League of Nations Committee, established in 1946 to consider the possible transfer of certain functions, activities, and assets of the League,302 the ad hoc Permanent Headquarters Committee,303 and the United Nations Temporary Commission on Korea.304 The Committee on Atomic Energy was established by the General Assembly in 1946, comprising the members of the Security Council and Canada.305 In 1952 it was fused with the Commission for Conventional Armaments, a subsidiary organ of the Security Council, to form the Disarmament Commission.306 6.86  In 1947, as it became clear that the disagreements among the permanent members of the Security Council were impeding that organ’s ability to function in relation to peace and security,307 the General Assembly established the ‘Interim Committee’, also known as the ‘Little Assembly’, as a subsidiary organ.308 This committee of the whole was to function while the General Assembly was not in session.309 It was to consider matters concerning the maintenance of international peace and security, the promotion of international cooperation in the political field, and the peaceful adjust(p. 195) ment of situations. The Committee was established to function from the close of the 1947 General Assembly session to the start of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

the 1948 session, and was subsequently re-established.310 Throughout its existence, it was criticized by the USSR, which saw it as a ‘disguised “perpetuation”’ of the General Assembly311 and which, along with other Eastern Bloc states, considered it unconstitutional, refusing to participate in its work.312 While the Committee has been said to be ‘theoretically’ still in existence,313 it ceased to function in the 1950s.314 6.87  Another subsidiary organ of the General Assembly charged with matters relating to international peace and security that no longer functions is the Peace Observation Committee, established under the Uniting for Peace Resolution.315 Consisting of 14 members, it was to be dispatched to any ‘trouble-area’ to advise the General Assembly on what action was necessary. In addition, a Collective Measures Committee was established under Uniting for Peace, to coordinate the armed measures taken by individual member states. In the current international climate, the Security Council is better able to deal with its international peace and security obligations than it was during the Cold War, and the General Assembly’s role has been reduced.316

10.  Subsidiary organs of the Security Council 10.1  Generally 6.88  As previously discussed, the Security Council is empowered to create subsidiary organs by two separate provisions of the UN Charter. First, along with other principal organs, the Security Council is entitled to establish, in accordance with the Charter, ‘such subsidiary organs as may be found necessary’ under the general provision at Article 7(2). Second, Article 29 provides that the Security Council ‘may establish such subsidiary organs as it deems necessary for the performance of its functions’.317 As noted, the ‘functional limitation’ at Article 29 does not appear to impact on the Security Council’s powers, as there would appear to be nothing to prevent the Security Council from relying on the general provision of Article 7(2).318 (p. 196) 6.89  The Security Council’s practice in relation to the establishment of subsidiary organs has been variable: in the first three years of the Security Council’s functioning, no fewer than 24 subsidiary organs were established by the Security Council; during the period from 1949–62, there were just six subsidiary organs established. Since the end of the Cold War there has been a significant increase in the number of subsidiary organs established, largely in the form of Peacekeeping Operations or Sanctions Committees.319 In 2006, in an effort to enhance transparency, the Security Council invited the chairs of its subsidiary bodies, ‘to give, on a regular basis, informal briefings, when appropriate, on their activities to interested Member States’.320 6.90  Where the Secretary-General, at the request of the Security Council and subject to its approval, develops a plan for the formation of a subsidiary organ and appoints its members, the subsidiary organ should be treated for all intents and purposes as if it were a subsidiary organ of the Security Council.321 The Secretariat provides administrative and substantive support to the subsdiary bodies of the Council.322

10.2  Classification 6.91  While there is no uniformity of classification,323 the Security Council’s subsidiary organs may generally be said to include the following: •  the Military Staff Committee; •  Standing Committees or ‘Permanent Committees’; •  Ad Hoc Committees and General Committees;

324

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(p. 197) •  Commissions and Investigative Bodies; •  Working Groups; •  Sanctions Committees; •  Peacekeeping Operations; •  Political, Peace-Building, and Other Missions; •  Groups and Panels; •  International Criminal Tribunals; •  Missions of the Security Council and the Secretary General; •  Representatives, Mediators, Coordinators, and Good Offices. This approach to categorization reflects the overview of subsidiary organs in the Repertoire of the Practice of the Security Council.325 While the Repertoire lists all of the committees, working groups, etc contained within these categories as ‘subsidiary organs’, other publications of the United Nations may take different approaches. So, for example, the lists of Security Council subsidiary organs that appear in the Yearbook of the United Nations are not identical to those in the Repertoire.326

10.2.1  Military Staff Committee 6.92  As noted, some take the view that the Military Staff Committee is not a subsidiary organ of the Security Council because its establishment is called for in the UN Charter, instead characterizing it as an ‘auxiliary organ’.327 While little would appear to turn on how it is characterized, it is important to note that as an organ, the creation of which is called for in the UN Charter, the Security Council would not appear to be in a position to terminate its existence without a Charter amendment. 6.93  The UN Charter provides: [T]here shall be established a Military Staff Committee to advise and assist the Security Council on all questions relating to the Security Council’s military requirements for the maintenance of international peace and security, the employment and command of forces placed at its disposal, the regulation of armaments, and possible disarmament.328 The Committee’s composition is also provided for in the UN Charter: it ‘shall consist of the Chiefs of Staffs of the permanent members of the Security Council or their representatives’.329 It is empowered to establish regional sub-committees, with the authorization of the Security Council and after consultation with appropriate regional agencies.330 (p. 198) 6.94  In its very first resolution, adopted at its second meeting, on 25 January 1946, the Security Council ‘agreed that there shall be established a Military Staff Committee to advise and assist the Security Council, and that the Military Staff Committee shall consist of all the Chiefs of Staff of the permanent members of the Security Council or their representatives’.331 On l6 February 1946, the Security Council adopted a proposal requesting the Military Staff Committee ‘to meet…to examine from the military point of view the provisions contained in Article 43 of the Charter, and to submit the results of the study and any recommendations to the Council in due course’.332 In February 1946, the President of the Military Staff Committee submitted a draft of its own Rules of Procedure to the Security Council.333

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6.95  Owing, apparently, to Cold War tensions, the Military Staff Committee reported to the Security Council in 1948 that it was unable to agree either on the question of the overall strength and composition of the armed forces, or on the question of the future work of the Committee.334 Nevertheless, the Committee has continued to meet—in 2015 it met 27 times335—and to submit an annual report on its activities. These reports are included in the Security Council’s annual report to the General Assembly.336 6.96  After the end of the Cold War, in his 1992 Report, An Agenda for Peace, SecretaryGeneral Boutros-Ghali observed that the role of the Military Staff Committee should be ‘seen in the context of Chapter VII, and not that of the planning or conduct of peacekeeping operations’.337 This has not occurred in practice, and in 2000 the Security Council undertook ‘to consider the possibility of using the Military Staff Committee as one of the means of enhancing the United Nations peacekeeping (p. 199) capacity’.338 In 2005, in its World Summit Outcome document, the General Assembly requested that the Security Council ‘consider the composition, mandate and working methods of the Military Staff Committee’;339 and in 2008, the Security Council advised the General Assembly that the matters raised in the World Summit Outcome document were under consideration by the Committee and the discussions were ongoing.340 Despite this, the role of the Military Staff Committee appears largely unchanged.

10.2.2  Standing Committees 10.2.2.1  Generally 6.97  Currently there are four Standing Committees of the Security Council.341 Three of these are moribund, with the Committee of Experts to study the question of ‘associate membership’ having met only a handful of times in 1969 and 1970, the Committee of Experts on Rules and Procedures having met only once since 1953, and the Committee on Council Meetings away from Headquarters having met only a handful of times in 1972 and 1973. Only the Committee on Admission of New Members continues to be active—though given its subject matter and the fact that most states are now members of the UN, its role is relatively limited. All Security Council member states are members of these Committees. The President of the Security Council acts as chair for meetings of the Committees.342

10.2.2.2  Committee of Experts on Rules and Procedures 6.98  The Committee of Experts was established at the first meeting of the Security Council on 17 January 1946 to draft the provisional rules of procedure. It was not given any other terms of reference originally, but other questions or tasks have, from time to time, been referred to it.343 Examples of such questions or tasks include requests to suggest an appropriate procedure for communications received from non-governmental bodies and persons relating to the Greek and Indonesian questions, to consider a draft Statute and draft rules of procedure submitted in a report of the Military Staff Committee, to consider the respective functions of the Security Council and the Trusteeship Council with regard to strategic areas within the Trusteeship System, and that it consider letters from various nonparty states inquiring as to the conditions (p. 200) on which those non-party states may join the Statute of the ICJ.344 The Committee of Experts continues to exist, but, with one exception in 1987,345 has had no occasion to meet.346 According to Sievers and Daws: The types of tasks previously undertaken by the Committee of Experts are now usually dealt with informally by the Council members or, since its establishment in 1993, by the Council’s Informal Working Group on Documentation and Other Procedural Questions.347

10.2.2.3  Committee on Admission of New Members

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6.99  In May 1946, the Security Council resolved to refer applications for membership received by the Secretary-General to a committee composed of a representative of each of the members of the Security Council, and established the Committee on the Admission of New Members.348 The procedure, which later became Rule 59 of its provisional rules of procedure, provides that an application for membership will be referred by the President of the Security Council to the Committee, ‘[u]nless the Security Council decides otherwise’. The Security Council referred applications for membership to the Committee from 20 applicant states between June 1946 and January 1949.349 It fell to the Committee to decide whether or not the applicant state was peace-loving, accepted the obligations of the UN Charter, and was able and willing to do so, as required in Article 4(1) of the Charter,350 based on information submitted to it or requested by it.351 6.100  Beginning in the later part of 1949, it became the practice of the Security Council to consider membership applications and vote on them without reference to the Committee. From 22 August 1949 to 9 February 1971, the Committee did not meet;352 instead, all applications were dealt with by the Security Council directly.353 In 1971 the Security Council reactivated the Committee,354 after a sense of unease on the part of a number of major powers ‘over the rather casual way some (p. 201) applications…were being dealt with by the Security Council’.355 Since then, the Committee has become active, with over 20 applicant states referred to it between 1971 and 1978,356 24 states referred to it in the period from 1972 to 1980,357 28 states referred to it from 1981 to 1992,358 9 states from 1992 to 1999,359 and 5 states from 2000–2007.360 6.101  In 2011, the Security Council received two requests for admission: one from the Republic of South Sudan361 and one from Palestine.362 In each case,363 pursuant to rule 59 of the provisional rules of procedure of the Security Council and in the absence of objection, the application was referred to the Committee on the Admission of New Members for examination and report. At a meeting of 13 July 2011, the Security Council considered the Report of the Committee on the Admission of New Members concerning the application of the Republic of South Sudan.364 Based on the recommendation in the Report, the Security Council adopted Resolution 1999 (2011), deciding to recommend to the General Assembly that the Republic of South Sudan be admitted as a member of the UN, and issued a congratulatory statement.365 The Committee was unable to reach a unanimous decision as regards Palestine.366

10.2.2.4  Committee on Council Meetings away from Headquarters 6.102  While there had been previous requests for meetings away from Headquarters—the Congo in 1960 and 1961, and the Dominican Republic in 1965—they were not acted on.367 On 11 January 1972, at the request of the Organization of African Unity, the Security Council (p. 202) decided, without objection, to establish a Security Council Committee on Council Meetings away from Headquarters, to study the question of the convening of Council meetings in an African capital and to endeavour to draft general guidelines that could be applied in similar situations that might arise in the future.368 The Committee submitted a report, which made several recommendations, and proposed a draft resolution; and these were adopted by the Security Council by consensus on 19 January 1972. In January 1973, the Committee was asked to consider the necessary arrangements that would need to be made for a visit to Panama, which had been requested by Panama.369 In 1990, ‘when the Council agreed to meet in Geneva [so that Mr Yasser Arafat of the PLO would be able to address the Council], the Council did not refer the proposal to the Committee on Council Meetings away from Headquarters’.370 Similarly, when, in 2004, the US proposed a meeting of the Security Council in Nairobi, the matter was not referred to the Committee;

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instead it was decided by the Security Council directly.371 The Committee has been inactive since 1973.372

10.2.2.5  Committee of Experts to study the question of ‘associate membership’ 6.103  This Committee was established by the Security Council on 29 August 1969, after the President of the Security Council received a letter dated 18 August from the US concerning ‘micro-states’. The Committee, consisting of all members of the Security Council, was established without objection.373 The Committee, referred to by some as the ‘Ministate Committee’,374 met between 12 September 1969 and 10 June 1970.375 It produced an interim report in which it gave an account of its work, but ‘stated that inasmuch as a number of its members had not yet made their statements on the substantive aspects of the question, the committee was not in a position to formulate specific recommendations and to submit them to the Council’.376 The Committee has not met since 1972.377 Given (p. 203) the admittance of several ministates to the UN—such as Palau in 1994, with a population of 21,388, Nauru in 1999, with a population of 10,065, and Tuvalu in 2000, with a population of 9,561—there may no longer be much need for the Committee.

10.2.3  Ad Hoc and General Committees 6.104  The existing or former Ad Hoc Committees of the Security Council include the following:378 the Sub-Committee on the Spanish Question (1946), the Sub-Committee on the Corfu Channel Question (1947), the Sub-Committee on the Appointment of a Governor for the Free Territory of Trieste (1947), the Committee of Good Offices on the Indonesian Question (1947) (relating to the pacific settlement of the dispute between The Netherlands and Indonesia regarding Indonesian independence), the Sub-Committee on the Palestine Question (1948), the Sub-Committee under Resolution 132 (1959) in connexion with the report of the Secretary-General relating to Laos (1959), the Expert Committee of the Security Council on Measures concerning the Question of Race Conflict in South Africa (1964), the Ad Hoc Sub-Committee on Namibia (1970), the Ad Hoc Sub-Committee established in pursuance of Security Council Resolution 276 (1970) (on South Africa’s refusal to withdraw from Namibia), the Ad Hoc Committee established under Resolution 455 (1979) (in connection with the complaint by Zambia regarding acts of aggression by the illegal regime of Southern Rhodesia in collusion with South Africa), and the Ad Hoc Committee established under Security Council Resolution 507 (1982) concerning the Seychelles (1982).379 6.105  The existing or former General Committees of the Security Council include the following:380 Sub-Committees to seek agreement after General Discussion (1946–51) and the Ad Hoc Committee on Mandate Review (2006).381

10.2.4  Commissions and Investigative Bodies 6.106  Over the years, the Security Council has established scores of Commissions and Investigative Bodies. Their subject areas have been diverse and tend to pertain to (p. 204) instances where there has been a threat to or breach of international peace, or to measures to facilitate the restoration of international peace and security.382

(p. 205) 10.2.5  Working Groups 6.107  The following six Working Groups have been established by the Security Council: •  the Working Group on Peacekeeping Operations;

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•  the Ad Hoc Working Group on Conflict Prevention and Resolution in Africa;

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•  the Working Group established pursuant to Resolution 1566 (2004) (regarding threats to international peace and security caused by terrorist acts);

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•  the Working Group on Children and Armed Conflict (CAAC);

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(p. 206) •  the Informal Working Group on Documentation and Other Procedural Questions (IWG); 386 and •  the Informal Working Group on International Tribunals.

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6.108  The Ad Hoc Working Group on Africa was established in 1998 to review recommendations in a report of the Secretary-General on the causes of conflict and the promotion of durable peace and sustainable development in Africa, to prepare a framework for the implementation of recommendations, and to submit specific proposals for concrete action for consideration by the Council by September 1998.388 It no longer appears to be functioning.389 In addition, an informal Working Group on the Protection of Civilians in Armed Conflict, which was established in 1999 to review recommendations contained in an 8 September 1999 report of the Secretary-General regarding measures that could be taken to ensure the protection of civilians, no longer appears to be functional.390 Finally, the Working Group on General Issues of Sanctions, which was established on 17 April 2000 to develop general recommendations on how to improve the effectiveness of UN sanctions, was terminated in 2006, having fulfilled its mandate.391

(p. 207) 10.2.6  Sanctions Committees 6.109  As of March 2017 there are 13 active sanctions regimes, each one of which is administered by a sanctions committee:392 Somalia and Eritrea,393 Iraq,394 Yemen,395 the Democratic Republic of the Congo,396 Central African Republic,397 Sudan,398 the Democratic People’s Republic of Korea,399 South Sudan,400 Libya,401 and Guinea-Bissau.402 Committees that have now been terminated have previously existed in relation to the following countries: Eritrea and Ethiopia,403 Côte d’Ivoire,404 Iran,405 Serbia and Montenegro,406 Sierra Leone,407 Liberia,408 Rwanda,409 Haiti,410 Libya,411 Yugoslavia,412 Iraq and Kuwait,413 South Africa,414 (p. 208) and Southern Rhodesia.415 Committees also exist in relation to the sanctions imposed against Al-Qaida and ISIL (Da’esh)416 and the Taliban,417 and those suspected of involvement in the assassination of the former Lebanese Prime Minister Rafiq Hariri and 22 others.418 A Committee in relation to sanctions against the National Union for the Total Independence of Angola (UNITA) rebels in Angola has now been terminated.419Each Sanctions Committee generally has a bureau, consisting of a Chair and two Vice-Chairs.420 Their reports are included as appendices to the annual reports of the Security Council to the General Assembly.421 6.110  Two related Committees warrant mention: the Counter-Terrorism Committee (CTC), established pursuant to Security Council Resolution 1373 (2001),422 and the Committee established under Security Council Resolution 1540 (2004), which deals with the nonproliferation of weapons of mass destruction (known as the ‘1540 Committee’).423 These two Committees are composed of all members of the Security (p. 209) Council and meet in closed session. Each Committee has a bureau made up of a Chair and three Vice-Chairs.

10.2.7  Peacekeeping Operations 6.111  Peacekeeping Operations are considered subsidiary organs of the Security Council.424 At the time of writing, the following 16 peacekeeping missions are in operation: 1.  United Nations Truce Supervision Organization (UNTSO); 2.  United Nations Military Observer Group in India and Pakistan (UNMOGIP); 3.  United Nations Peacekeeping Force in Cyprus (UNFICYP); 4.  United Nations Disengagement Force (UNDOF);

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5.  United Nations Interim Force in Lebanon (UNIFIL); 6.  United Nations Mission for the Referendum in Western Sahara (MINURSO); 7.  UN Interim Administration Mission in Kosovo (UNMIK); 8.  UN Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO); 9.  United Nations Mission in Liberia (UNMIL); 10.  United Nations Operation in Côte d’Ivoire (UNOCI); 11.  United Nations Stabilization Mission in Haiti (MINUSTAH); 12.  African Union/United Nations Hybrid Operation in Darfur (UNAMID); 13.  United Nations Interim Security Force in Abyei (UNISFA); 14.  United Nations Mission in the Republic of South Sudan (UNMISS); and 15.  United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA); 16.  United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA). 425

10.2.8  Political, peace-building, and other missions 6.112  The Peacebuilding Commission (PBC) was jointly established by the Security Council and the General Assembly in 2005 to support peace efforts in countries emerging from conflict. Its aim is ‘to propose integrated strategies for post-conflict peacebuilding and recovery, bring together all of the relevant actors and marshal resources’.426 The PBC has a direct reporting relationship with the Security Council and the General Assembly, and a non-subsidiary relationship with ECOSOC and the Office of the Secretary-General.427 (p. 210) 6.113  What have become known as ‘Political Missions and Offices’ are subsidiary organs of the Security Council that are similar in nature to UN Peacekeeping Operations, though they often follow on from peacekeeping missions.428 While Peacekeeping Operations are managed by the Secretariat by its Department of Peacekeeping Operations (DPKO), Political Missions and Offices are managed by the Secretariat’s DPA.429 Political Missions and Offices are led by senior representatives of the Secretary-General. Their mandates tend to be focused on ‘preventive diplomacy and other activities across a range of disciplines, to help prevent and resolve conflict’, or ‘to support complex political transitions’.430 Political Missions and Offices are meant to consolidate peace ‘in coordination with national actors and UN development and humanitarian entities on the ground’.431 Political Missions and Offices tend to be significantly smaller than Peacekeeping Operations (sometimes featuring fewer than 10 staff). There is, however, scope for overlap in the functions of Peacekeeping Operations and Political Missions and Offices.432 6.114  At the time of writing, the following Political Missions and Offices are in existence: 1.  United Nations Assistance Mission in Somalia (UNSOM); 2.  United Nations Mission in Colombia; 3.  United Nations Office for West Africa and the Sahel (UNOWAS); 4.  United Nations Integrated Peace-Building Office in Guinea-Bissau (UNIOGBIS); 5.  United Nations Regional Office for Central Africa (UNOCA); 6.  United Nations Assistance Mission in Afghanistan (UNAMA);

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7.  United Nations Assistance Mission for Iraq (UNAMI); 8.  Office of the United Nations Special Coordinator for Lebanon (UNSCOL); 9.  United Nations Regional Centre for Preventive Diplomacy for Central Asia (UNRCCA); 10.  United Nations Support Mission in Libya (UNSMIL).

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(p. 211) 10.2.9  Groups and Panels 6.115  The Security Council has established various Groups and Panels ‘to support the Secretary-General’s efforts in the maintenance of international peace and security and requested the Secretary-General to appoint groups or panels to assist the Security Council in examining particular situations’.434 Included here are the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo, established in 2000; the Group of the Security Council established under Resolution 309 (1972), established in 1972; and the Group of Experts on South Africa, established in 1963.

10.2.10  International Criminal Tribunals 6.116  The ICTY435 and the ICTR436 were established by the Security Council in 1993437 and 1994438 respectively, as its subsidiary organs.439 In 2010, the Security Council established the International Residual Mechanism for Criminal Tribunals to complete the work begun by the ICTY and the ICTR.440 The Tribunals and the Residual Mechanism are discussed in detail in another chapter.441

10.2.11  Missions of the Security Council and the Secretary-General 6.117  A number of missions have been established by the Security Council over the years. Such missions are comprised of representatives of some or all members of the Security Council, or of individuals appointed by the Secretary-General. Missions classified as subsidiary organs of the Security Council in the Repertoire include the following:442 Security Council Mission to the Kingdom of Cambodia and the Republic of Viet-Nam;443 Special Mission [of the Security Council] to the Republic of Guinea;444 Special Mission of the Security Council to Senegal;445 Mission [of the Security Council] concerning Jerusalem;446 Mission of the Secretary-General to Namibia;447 Special Mission [of the (p. 212) Security Council] to Zambia;448 Mission of the Secretary-General to Western Sahara;449 Special Mission of the Security Council to the People’s Republic of Benin;450 Security Council Mission to Botswana;451 Mission of the Secretary-General to Lesotho;452 Mission of the Secretary-General to Botswana;453 Secretary-General’s Mission of Specialists to Investigate Allegations of the Use of Chemical Weapons in Iran/Iraq.454

10.2.12  Representatives, Mediators, Coordinators, and Good Offices 6.118  The Security Council has requested the Secretary-General to appoint a variety of representatives and other individuals to assist it in addressing situations that threaten international peace and security. In some cases, the Security Council has asked the Secretary-General to use his Good Offices to address a situation directly. The following appointments are listed in the Repertoire:455 United Nations Representative for India and Pakistan, to exercise all the powers and responsibilities delegated upon the United Nations Commission for India and Pakistan (UNCIP);456 United Nations Mediator in Cyprus;457 the Representative of the Secretary-General in the Dominican Republic;458 the Representative of the Secretary-General in the matter of withdrawal of troops by India and Pakistan;459 the Special Representative of the Secretary-General in the Middle East following the June 1967 Arab–Israeli War;460 the Special Representative of the Secretary-General in the India/ Pakistan subcontinent;461 the Representative of the Secretary-General to assist the Secretary-General in establishing the necessary conditions so as to enable the people of

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Namibia, freely and with strict regard to the principle of human equality, to exercise their right to self-determination and independence from South Africa;462 the Special Representative of the Secretary-General under Security Council consensus of 28 February 1974, to conduct an investigation of incidents on the frontier between Iran and Iraq and to report on its findings; the Special Representative of the Secretary-General to East Timor;463 the Representative of the Secretary-General to enter into discussions with the British Resident Commissioner designate and with all the parties concerning the military (p. 213) and associated arrangements that were considered necessary to effect the transition to majority rule in Southern Rhodesia;464 the Special Representative of the Secretary-General for Namibia;465 the Good Offices Mission of the Secretary-General in connection with the situation in Iran;466 the Good Offices Mission of the Secretary-General under Security Council statement dated 23 September 1980 and of the Special Representative of the Secretary-General under Security Council statement dated 5 November 1980 in connection to the Iran–Iraq War; the Mission of Good Offices of the Secretary-General under statements dated 1 April and 5 May under Resolutions 502 (1982) and 505 (1982), to enter into contact with the parties involved in the Falkland Islands (Islas Malvinas) dispute in an effort to negotiate mutually acceptable terms for a ceasefire; the Special Representative of the Secretary-General for Western Sahara;467 and the United Nations Coordinator for the return of property from Iraq to Kuwait.468

11.  Subsidiary organs of ECOSOC 11.1  Generally 6.119  The Economic and Social Council, like all principal organs, is authorized to establish subsidiary organs under Article 7(2) of the UN Charter. As noted, Article 68 of the Charter provides in addition a power particular to ECOSOC: ECOSOC ‘shall set up commissions in economic and social fields and for the promotion of human rights and such other commissions as may be required for the performance of its functions’.469 Although Article 68 contains the qualification ‘as may be required for the performance of its functions’—a ‘functional limitation’ absent from the general power to create subsidiary organs under Article 7(2)—little would appear to turn on which of the two Articles ECOSOC was acting under,470 and both provisions must be read in conjuction with each other.471 Nothing would appear to turn on the fact that the UN Charter uses the term ‘commissions’ instead of ‘subsidiary organs’ when setting forth ECOSOC’s specific power to create entities in Article 68:472 its commissions are, of course, subsidiary organs.473 (p. 214) 6.120  The UN’s functions in relation to economic and social cooperation are vested in the General Assembly and, under the authority of the General Assembly, in ECOSOC.474 As such, the General Assembly ‘has the necessary power to give directives to the subsidiary organs of [ECOSOC] as well as to [ECOSOC] itself’.475 The General Assembly may require ECOSOC to establish a specific body, or even to create a whole new category of subsidiary organs.476 Given the overlap of functions between the General Assembly and ECOSOC on matters relating to economic and social matters, it may not always be clear whether an entity is a subsidiary organ of the General Assembly or of ECOSOC.477 6.121  Rule 24(2) of ECOSOC’s Rules of Procedure provides that, except for regional commissions, ‘the commissions and committees of [ECOSOC] shall not create either standing or ad hoc intersessional subsidiary bodies’ without the prior approval of ECOSOC.478 Giacca and Riedel note that this provision is somewhat inconsistent with the regional commissions’ terms of reference, some of which require ECOSOC’s (p. 215) approval before they may create such organs.479 It is ‘not always clear whether expert

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bodies reporting to commissions should be considered as subsidiary organs of [ECOSOC] or of the commission concerned’.480

11.2  Classification 11.2.1  Generally 6.122  The fact that Section V of ECOSOC’s Rules of Procedure is entitled ‘Sessional Bodies and Subsidiary Organs’ (emphasis added) has led some to conclude that sessional bodies are not to be regarded as ‘subsidiary organs in the sense of [UN Charter Articles] 7(2), 22 and 68’.481 Instead, it is argued that it is preferable to characterize the sessional committees of ECOSOC, ‘including their sub-committees and working groups, not as separate subsidiary organs but rather as integral parts of their decision-making machinery’, with their legal basis in Article 72 of the UN Charter—the Charter provision that authorizes ECOSOC to adopt its rules of procedure.482 Rule 24(1), the first Rule in Section V of ECOSOC’s Rules of Procedure, provides that ECOSOC may establish ‘(a) functional commissions and regional commissions; (b) sessional committees of the whole and other sessional bodies; and (c) standing and ad hoc committees’.483 The Rules provide for certain differences in treatment among the types of commissions and committees elaborated at Rule 24, with regional commissions being given the most autonomy and sessional committees the least.484 (p. 216) 6.123  Whether or not one accepts that sessional committees should be deemed to be subsidiary organs, it would appear that all other commissions and committees should be so characterized.485 The subsidiary organs of ECOSOC are considered under the following four categories:486 1.  Functional commissions; 2.  Regional commissions; 3.  Standing committees; and 4.  Other (including ad hoc bodies, expert bodies, and other related bodies). Organs belonging to the same category may differ considerably in terms of size, establishment, composition, and the procedure for appointment.487 There is great variation in the reputation of the various subsidiary organs.

11.2.2  Functional commissions 11.2.2.1  Generally 6.124  There are currently eight functional commissions, five of which were established at ECOSOC’s 1st session, in 1946,488 two of which were established in the early 1990s, and one that was established in 2000. These are: 1.  Commission on Narcotic Drugs (CND); 2.  Statistical Commission;

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3.  Commission for Social Development (CSoD);

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4.  Commission on Population and Development (CPD); 5.  Commission on the Status of Women (CSW);

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6.  Commission on Science and Technology for Development (CSTD);

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(p. 217) 7.  Commission on Crime Prevention and Criminal Justice (CCPCJ); 8.  United Nations Forum on Forests (UNFF).

495

496

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A number of other functional commissions have been established but later discontinued. Important among these have been the Commission on Human Rights (CHR)497 and the Commission on Sustainable Development (CSD).498

11.2.2.2  Rules of procedure 6.125  Functional commissions have their own rules of procedure established by ECOSOC,499 which may be amended only by ECOSOC.500 The rules of procedure for functional commissions provide that they may, themselves, establish sessional or intersessional ‘commissions or working groups’ and ‘sub-commissions’, though sometimes the authorization of ECOSOC and/or the agreement of the Secretary-General is required.501 The rules of procedure (p. 218) applicable to functional commissions are also applicable to subsidiary organs established by functional commissions.502

11.2.2.3  Membership 6.126  The functional commissions are composed of members of the UN elected by ECOSOC.503 Membership in functional commissions varies considerably. For example, while the UNFF is open to all UN member states and members of specialized agencies, membership in the others varies from 53 members in the CND504 and the CSD, to 24 members of the Statistical Commission. Equitable geographical distribution of membership is stressed, with some of the commissions explicitly setting out what number of members must come from the various regions.505 The memberships of many functional commissions have been increased over the years as the UN’s membership—and ECOSOC’s membership —has grown. The fact that ECOSOC elects the members of its subsidiary bodies has become, for some states, a powerful incentive to become a member of ECOSOC.506

11.2.3  Regional commissions 11.2.3.1  Generally 6.127  Five regional commissions have been established by ECOSOC. In 1947, it established the Economic Commission for Europe (ECE)507 and the UN Economic and Social Commission for Asia and the Pacific (ESCAP).508 Subsequently, it established the Economic Commission for Latin America and the Caribbean (ECLAC) in 1948,509 the Economic Commission for Africa (ECA) in 1958,510 and the Economic and Social Commission for Western Asia (ESCWA) in 1973.511 These commissions arose from the work of ECOSOC regarding the economic reconstruction of war-devastated areas, and may reflect the will of the UN ‘to integrate regionalism in its own institutional framework’.512 Given their nature and constitution, the usefulness of regional commissions is to be evaluated not only from the point of view of the UN as a whole, but also from that of the regional governments who are (p. 219) members of the Commissions.513 Regional commissions adopt their own rules of procedure.514

11.2.3.2  Functions 6.128  The regional commissions are charged with a wide variety of functions relating to development, trade, economic and social policy, sustainable development, poverty reduction, natural resources, etc. While the structure of each regional commission is unique given the particular regional environment within which each one operates, certain patterns have emerged.515 Frequently the regional commissions create their own subsidiary organs in the form of ‘committees’, ‘divisions’, ‘councils’, etc. The Rules of Procedure of ECOSOC give regional commissions alone the power to create standing or ad hoc intersessional subsidiary bodies without the prior approval of ECOSOC.516

11.2.3.3  Membership

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6.129  Regional commissions are unique among ECOSOC subsidiary organs of limited membership, in that they are not required to have the members of their subsidiary organs elected by ECOSOC.517 Membership in regional commissions varies, and has been the subject of considerable debate.518 However, with the exception of ESCWA, which has only 18 members, most have in the region of 50 members, in some instances split between full members and associate members.519 While membership of a regional commission generally consists of states in the region,520 there is no requirement that this be the case.521 Nor is it required that membership (p. 220) in regional commissions be limited to UN member states: given the ‘wide discretion in determining the composition of its commissions’, ECOSOC ‘may accord to non-member States the right to vote’ in regional commissions522 and, exceptionally, grant them full membership.523 States administering non-self-governing territories may be granted either full membership or associate, non-voting membership in the regional commissions.524 Furthermore, there is no legal impediment to ECOSOC’s granting membership to entities that are neither states nor territories; however, this would not be consistent with practice.525 There is nothing preventing ECOSOC from allowing states to be members of more than one regional commission; however, states which are members of more than one such commission ought to be eligible for assistance from only one.526

(p. 221) 11.2.4  Standing committees 11.2.4.1  Generally 6.130  There are currently three standing committees of ECOSOC: 1.  Committee on Non-Governmental Organizations (CNGO); 2.  Committee for Programme and Coordination (CPC);

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and

3.  Committee on Negotiations with Intergovernmental Agencies.

529

Other standing committees have been transformed or merged into other entities.530 6.131  The size of ECOSOC’s standing committees can range considerably. One standing committee initially had just 11 members;531 another had 58.532 Membership in standing committees is generally on the basis of equitable geographical representation,533 though, historically, certain standing committees featured a disproportionate number of members from developing countries.534 While members of the standing committees are generally members of ECOSOC, this has not been the case in every instance.535 Members are normally elected by ECOSOC; however, in at least one instance, the General Assembly assumed this role.536

(p. 222) 11.2.4.2  Committee on Non-Governmental Organizations 6.132  The CNGO, established in 1946, has 19 members. It elaborates arrangements for participation of NGOs in its meetings pursuant to Article 71 of the UN Charter.537 These arrangements are set out in ECOSOC Resolution 1996/31.538 The Committee is guided by the ECOSOC Rules of Procedure in its proceedings.539 Approval of an NGO by the CNGO is recommendatory only, pending confirmation by ECOSOC itself.540

11.2.4.3  Committee for Programme and Coordination 6.133  The CPC was established in 1962 with 11 members, and currently consists of 34 members.541 According to Giacca and Riedel, it ‘has been criticized more than any other organ of ECOSOC’ and had to face many difficult problems.542 In 1976, the General Assembly assumed joint responsibility for this organ, along with ECOSOC.543

11.2.4.4  Committee on Negotiations with Intergovernmental Agencies

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6.134  This committee, which was established in 1946, is classified as a standing committee by certain UN publications only.544 This may be because it is ‘not really “standing” but may convene in the event that negotiations on arrangements with a specialized agency should prove necessary’.545

11.2.5  Other 11.2.5.1  Expert bodies 6.135  The following are characterized as expert bodies by the UN Secretariat:546 (p. 223) •  Committee of Experts on the Transport of Dangerous Goods and on the Globally Harmonized System of Classification and Labelling of Chemicals; 547 •  Intergovernmental Working Group of Experts on the Standards of International Accounting and Reporting; 548 •  United Nations Group of Experts on Geographical Names;

549

•  The UN Committee of Experts on Global Geospatial Information Management (UNGGIM); 550 •  Committee for Development Policy;

551

•  Committee of Experts on Public Administration;

552

•  Committee of Experts on International Cooperation in Tax Matters; •  Committee on Economic, Social and Cultural Rights (CESCR); •  Permanent Forum on Indigenous Issues.

554

553

and

555

6.136  The expert bodies vary in membership, with the CESCR featuring 18 members and the Committee of Experts on the Transport of Dangerous Goods on the Globally Harmonized System of Classification and Labelling of Chemicals featuring 40. There is also variation in the types of members. For example, the first four bodies comprise governmental experts, whereas the other five bodies listed comprise members serving in their personal capacity. Although appointments are made by ECOSOC or, where it requests, by the SecretaryGeneral, member states have a role either by being permitted to nominate a national, or being consulted before the appointment of a national.556 With the Permanent Forum on Indigenous Issues, eight members are nominated by governments and elected by ECOSOC, and eight are nominated by indigenous NGOs and appointed by the President of ECOSOC. Expert bodies can operate through subcommittees.557

(p. 224) 11.2.5.2  Ad hoc mechanisms 6.137  The following entities are described as ad hoc bodies or mechanisms by the UN:558 •  Ad hoc Advisory Groups on African Countries Emerging from Conflict; •  Ad hoc Advisory Group on Haiti; and •  United Nations System Chief Executive Board for Coordination (CEB).

11.2.5.3  Other related bodies 6.138  Included here are the following: •  Committee for the United Nations Population Award;International Narcotics Control Board;

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•  Programme Coordinating Board of the Joint United Nations Programme on HIV/ AIDS (UNAIDS); and •  United Nations System Standing Committee on Nutrition (UNSCN).

559

The ECOSOC website also lists the Executive Board of the International Research and Training Institute for the Advancement of Women (INSTRAW);560 however, as previously noted, in 2010 INSTRAW was subsumed into UN Women.561 6.139  As previously noted, the OLA offered the view that ‘it seems that in law, both UNICEF and UNDP remain subsidiary organs of the General Assembly’.562 However, the Yearbook of the United Nations lists the Executive Boards of UNICEF and UNDP as ‘other related bodies’ of ECOSOC.563 It also includes in the ‘other related bodies’ category, the Programme Coordinating Board of UNAIDS, the Board of UNRISD, the Board of UNICRI, the Board of Governors of the United Nations Staff College (UNSSC), and the Executive Board of the WFP.564

(p. 225) 12.  Subsidiary organs of the Secretary-General 12.1  Generally 6.140  Like all principal organs, the UN Secretariat is authorized to establish subsidiary organs under Article 7(2) of the Charter.565 However, the Secretariat is not provided with an additional authority in the Charter to establish such bodies, as is the case with the General Assembly, the Security Council, and ECOSOC (at Articles 22, 29, and 68, respectively).566 6.141  As previously discussed, the Secretariat has been called upon by other principal organs to set up subsidiary organs on their behalf. Where the Secretariat arranges for the establishment of and/or appoints the members of a subsidiary organ at the request of another principal organ, the subsidiary organ will normally be considered to be a subsidiary organ of the principal organ calling for its establishment, rather than a subsidiary organ of the Secretariat.567 6.142  Matters are not always clear regarding the status of a subsidiary organ that has connections to more than one principal organ. Peacekeeping operations, which are generally established by the Security Council but whose day-to-day supervision falls to the Secretariat, may be regarded as having something of a joint status. While the SecretaryGeneral may be ‘capable of representing the Forces in all matters relating (p. 226) to United Nations peace-keeping’, he ought no to ‘be regarded as representing the Forces in matters extraneous thereto’.568

12.2  Some examples 6.143  The characterization of a subsidiary organ as being established by the SecretaryGeneral in the Repertory of Practice, while not dispositive, provides a valuable insight into the thinking of the Secretariat in this regard.569 Among the subsidiary organs established by the Secretary-General are the following: •  the establishment, in 1955, of a Medical Expense Review Committee to survey the then existing medical insurance arrangements for staff members at the Headquarters of the United Nations; 570 •  the appointment, in 1968, of a Committee of Experts on the Reorganization of the Secretariat; 571 •  a 1980 plan for a consultative mechanism composed of high-level officials, with regard to policy issues pertaining to economic and social activities; 572

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•  the establishment, in 1980, of a high-level advisory group of Secretariat officials to advise the Secretary-General on policy issues arising in connection with the elaboration of medium-term plans and programme budgets; 573 •  the establishment, in 1987, of the Advisory Group on Financial Flows to Africa, composed of high-level advisers from various regions charged with reporting to the Secretary-General on concrete ways to improve the financial situation of African countries; 574 •  the appointment, in 1993, of the High-level Advisory Board on Sustainable Development, to provide advice to the Secretary-General and, through him, to the Commission on Sustainable Development and other relevant UN bodies; 575 •  (p. 227) the appointment, in 1993, a panel of high-level personalities to advise and assist the Secretary-General in the implementation of the United Nations New Agenda for the Development of Africa in the 1990s; 576 •  the convening, in 1993, of a Task Force on the Reorientation of United Nations Public Information Activities, to examine all aspects of the mandates, arrangements, and operations of the Department of Public Information; 577 •  the establishment, in 2000, of a panel of experts led by former Minister of Foreign Affairs for Algeria, Lakhdar Brahimi, to determine how peace operations could be strengthened; 578 •  the establishment, in 2004, of a high-level Independent Inquiry Committee to investigate alleged improprieties with regard to the oil-for-food programme in Iraq, and, in view of the Committee’s findings, the establishment of an Ethics Office in 2006; 579 •  the establishment, in 2005, of a task force to coordinate the implementation of a UN-wide comprehensive anti-terrorism strategy; 580 •  the establishment, in 2007, of the Millennium Development Goals Africa Steering Group. 581

Footnotes: 1

  Between 1945 and 1984, the UN Secretariat listed 348 subsidiary organs that were established, continued, or modified by the General Assembly alone. (See the Annexes in UN RP (1945–54) vol I, Art 22; UN RP Supp no 1 (1954–55) vol I, Art 22; UN RP Supp no 2 (1955–59) vol II, Art 22; UN RP Supp no 3 (1959–66) vol I, Art 22; UN RP Supp no 4 (1966– 69) vol I, Art 22; UN RP Supp no 5 (1970–78) vol I, Art 22; UN RP Supp no 6 (1979–84) vol II, Art 22. 2

  For further information on UN peacekeeping operations, see at http://www.un.org/en/ peacekeeping/documents/bnotelatest.pdf. See also ch 27. 3

  Author’s translation. See Reuter, ‘Les Organes Subsidiaires des Organisations Internationales’ in Hommage d’une Génération de Jurists au Président Basdevant (1960), 415. 4

  Charter of the United Nations, 24 October 1945, 1 UNTS XVI (‘UN Charter’). These consist of the General Assembly (ch 2), the Security Council (ch 3), The United Nations Economic and Social Council (ECOSOC) (ch 5), the Trusteeship Council (ch 4), the International Court of Justice (ch 29), and the Secretariat (ch 15). A major difference to the system established under the Covenant of the League of Nations, 28 June 1919, 225 Parry’s CTS 195, is that the International Court of Justice (ICJ) is established under the UN Charter as the principal judicial organ of the organization (Art 92), whereas the Permanent Court of

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International Justice (PCIJ) did not constitute part of the League of Nations under the Covenant, presumably for independence and autonomy reasons. 5

  Initially, the term ‘organe auxiliare’ was used, but in the course of Charter negotiations the term was changed to ‘organe subsidiaire’, denoting that the conduct and functions of subsidiary organs are not qualitatively inferior to those of principal organs (see Lippold and Paulus, ‘Article 7’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), 387, at 394, para 13). 6

  The distinction between ‘principal organs’ and ‘subsidiary organs’ has become an ‘accepted feature of the “typology of organs” of international organizations within the general theory of international organizations’ (Torres Bernárdez, ‘Les organes des organisations internationales’ in Manuel sur les Organisations Internationales (ed Dupuy, 1998), 109, at 109–10). Some have characterized one or more of the six ‘principal’ organs listed in Art 7(1) of the UN Charter as being ‘subsidiary’ or ‘auxiliary’ to another such principal organ. For example, during the 9th session of the General Assembly (1954), some representatives in the Fourth Committee maintained that because the Trusteeship Council exercises certain of its functions ‘under the authority of the General Assembly’ (as per Arts 85(2) and 87 of the UN Charter), it was ‘auxiliary to the General Assembly’ (UN RP Supp no 1 (1954–55) vol I, Art 7, p 99). Similarly, ECOSOC—a principal organ according to Art 7(1)—has been described as a ‘subsidiary organ of the General Assembly’ in the light of its reporting relationship with the General Assembly (Conforti and Focarelli, The Law and Practice of the United Nations (2010), 138). While it is correct to observe that the General Assembly may have a supervisory role as regards the Trusteeship Council and ECOSOC, as provided under Arts 87 and 60 of the Charter, respectively—and that those principal organs may be subject to the General Assembly’s authority in carrying out certain of their functions, this does not mean that the Trusteeship Council or ECOSOC should be characterized as being both principal organs and subsidiary organs. 7

  In a 1983 Legal Opinion dealing with the status of the Group of Governmental Experts on International Cooperation to Avert New Flows of Refugees, the UN Office of Legal Affairs (OLA) appeared to endorse the view that all organs of the UN that are not principal, are subsidiary. After citing Arts 7 and 22 of the UN Charter, the OLA observed that ‘[t]he Expert Group, not being named a principal organ, must therefore be a subsidiary organ’ ([1983] UN Juridical YB 177). 8

  Mr Constantin Stavropoulos, Principal Director in charge of the United Nations Legal Department, representing the Secretary-General observed: ‘There are, in addition, a few organs which may not be characterised as either principal or subsidiary under Article 7 of the Charter. Certain organs which function within the orbit of the United Nations and are supported from the United Nations Budget, ie the Permanent Central Opium Board and the Drug Supervisory Body, were established by treaty and not by a principal organ in accordance with the Charter. Furthermore, the Military Staff Committee was provided directly in Article 47 of the Charter, but is not a principal organ under Article 7’ (Effect of Awards of Compensation Made by the UN Administrative Tribunal (Advisory Opinion), ICJ Oral Statements 1954, 295). See n 21 and accompanying text. 9

  See section 1.4, ‘Terminology’.

10

  Torres Bernárdez, n 6, 112–16. He notes that these criteria ‘are of little help as distinguishing features of “subsidiary organs” and should be abandoned from the outset’(ibid, 112).

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11

  The Secretariat of the UN defined a subsidiary organ as ‘one which is established by or under the authority of a principal organ of the United Nations, in accordance with Article 7, paragraph 2, of the Charter, by resolution of the appropriate body. Such an organ is an integral part of the Organization’ (UN RP Supp no 1 (1954–55) vol I, Art 7, p 100). According to the UN RP (1945–54) vol I, Art 7, p 228, para 21, certain ‘common features’ exist with all subsidiary organs: ‘(a) a subsidiary organ is created by, or under the authority of, a principal organ of the United Nations; (b) the membership, structure and terms of reference of a subsidiary organ are determined, and may be modified by, or under the authority of, a principal organ; (c) a subsidiary organ may be discontinued by, or under the authority of, a principal organ’. Sarooshi describes these elements as preconditions for the lawful establishment of a UN subsidiary organ (Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (1999), 88–9). 12

  ‘The powers, functions and composition of the principal organs are determined by the Charter, whilst those of subsidiary organs are determined by the principal organ that establishes them.’ Akande, ‘International Organizations’ in International Law (ed Evans, 2012), 273. 13

  UN Charter, Art 47.

14

  Sarooshi, ‘The Legal Framework Governing United Nations Subsidiary Organs’ (1996) 67 BYIL 413, 432–3, relying on the Oral Statement of Stavropoulos (n 8). Lippold and Paulus, n 5, 395, para 14, who take the view that a subsidiary organ ‘may be established by the constitution’ itself and ‘assigned…powers and functions by a principal organ’, as is the case with the Military Staff Committee under Art 47 of the UN Charter. 15

  Sarooshi posits out that the term ‘auxiliary organ’ should be used here. He argues that the travaux préparatoires of the San Francisco Conference show that a distinction between ‘subsidiary organs’ and ‘auxiliary organs’ was envisaged (Sarooshi, n 14, 432–3). 16

  The Secretariat in the UN RP appears to use the terms ‘auxiliary organs’ and ‘subsidiary organs’ synonymously. 17

  Sarooshi, n 11, 89–91.

18

  Torres Bernárdez, n 6, 130. He continues, ‘[t]hese bodies are not distinct entities or distinct “organs”…but elements of the internal organization of the “principal organ” concerned’ (ibid). See also Sarooshi, n 11, 89–91. The question of whether an entity was part of a principal organ or independent from it arose during the early days of the General Assembly regarding the relationship between the plenary and its Main Committees (see UN RP (1945–54) vol I, Art 7, p 225; and Lippold and Paulus (n 5), 395–6, para 16). See para 6.5.2. 19

  Jaenicke gives the example of the regional offices in Geneva and Vienna, which he asserts do not qualify as subsidiary organs of the Secretary-General, ‘because they are part of the hierarchal structure of the Secretariat and, despite some decentralization of power of decision under the directives of the [Secretary-General], do not exercise separate and distinct functions’: Jaenicke, ‘Article 7’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2006), 217 at 218, para 4). 20

  Sarooshi, n 11, 91.

21

  Arts 21, 30, 72, and 90 of the UN Charter provide for the General Assembly, the Security Council, ECOSOC, and the Trusteeship Council, respectively, to adopt their own rules of procedure (Lippold and Paulus, n 5, 396, para 15). See also Sarooshi, n 11, 91; cf Giacca and Riedel, ‘Article 68’ in Simma et al (eds), n 5, 1736 at 1742, para 15: ‘A distinction between bodies established under Art 68 or other provisions [such as Art 7(2) or Art 72(1) in conjunction with Rule 24(1) of the ECOSOC’s Rules of Procedure] is solely academic.

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However, under all three provisions, ECOSOC is entitled only to establish subsidiary organs in the field of its own competence.’ 22

  See the discussion of this argument in the context of the General Assembly at nn 141, 142, and 194, and of ECOSOC at para 6.122. An approach that looks at whether the subsidiary entity continues to function when the principal organ is not sitting would be of no value as regards the Security Council, which, of course, sits in permanent session. 23

  UN RP (1945–54) vol I, Art 7, p 225. During discussion in the First Committee (Disarmament and International Security), an argument was made that because one subsidiary organ, the Interim Committee (see para 6.86), met continuously, it was to be considered ‘a replica’ of the General Assembly and not a subsidiary organ (UN RP (1945– 54) vol I, Art 22, p 682). There are numerous examples of subsidiary organs whose membership is identical to that of the principal organ that created them (see Sarooshi, n 11, 90, fn 16 and the examples given therein). 24

  See para 6.28.

25

  See para 6.25.

26

  See discussion at section 4.2, ‘Limitations on the powers of subsidiary organs’.

27

  UN RP (1945–54) vol I, Art 7, p 224.

28

  Oral Statement made by the Secretary-General’s Representative Mr Stavropoulos, n 8, 295. He continued: ‘Some auxiliary organs are established on a permanent basis, others for an indefinite period, and still others have been established for a single session, for a specifically limited time, or for the accomplishment of a particular purpose of limited duration’ (ibid). 29

  However, caution must be exercised: while the preface ‘sessional’ before the word ‘committee’ or ‘commission’ may indicate that it operates only during the session of the principal organ, the absence of that word does not necessarily mean that it does not meet only during the sessions of the principal organ that established it. 30

  Torres Bernárdez, n 6, 111.

31

  See Lippold and Paulus, n 5, 406–9, para 33, referring to some ‘typical categories’ of subsidiary organs based on their functions. These categories, however, are not meant to be exhaustive. 32

  Szasz, who places what he describes as ‘a veritable jungle of miscellaneous entities’ into various categories, does so ‘to bring some order into the chaos’ and to clarify discussion in a ‘murky field’, rather than to provide an authoritative categorization (Szasz, ‘The Complexification of the United Nations System’ (1999) 3 MPUNYB 1, at 3). 33

  UN Charter, Art 7(2).

34

  Art 68 of the UN Charter provides that ECOSOC ‘shall set up commissions in economic and social fields and for the promotion of human rights, and such other commissions as may be required for the performance of its functions’. ECOSOC has relied on this power to establish subsidiary organs. 35

  See sections 9, ‘Subsidiary organs of the General Assembly’, 10, ‘Subsidiary organs of the Security Council’, and 11, ‘Subsidiary organs of the Secretary-General’, respectively. 36

  The Trusteeship Council has established a number of committees in accordance with Rule 66 of its rules of procedure (UN RP (1945–54) vol I, Art 7, p 223). Because the Trusteeship Council is no longer functional (see ch 4), its practice in relation to the establishment of subsidiary organs will not be considered.

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37

  The Secretary-General has established subsidiary organs on several occasions, either to assist in the performance of his duties or at the request of another principal organ. The practice of the Secretariat in relation to subsidiary organs will be considered at section 12, ‘Subsidiary organs of the Secretary-General’. 38

  Art 50 of the Statute of the International Court of Justice (the ‘ICJ Statute’) provides that ‘The Court may, at any time, entrust any individual, body, bureau, commission, or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion.’ The UN Secretariat appears to consider a Chamber established by the ICJ under Art 26(1) of its Statute, to be a subsidiary organ of the Court under Art 7(2) of the UN Charter (UN RP Supp no 6 (1979–84) vol I, Art 7, p 136; UN RP Supp no 7 (1985–88) vol I, Art 7, para 3; UN RP Supp no 8 (1989–94) vol I, Art 7, para 3); however, the view is not one taken here. For the views on whether an ICJ Chamber constitutes a subsidiary organ of the Court or an integral part of the latter, see Lippold and Paulus, n 5, 396, para 15; Sarooshi, n 14, 418; Rosenne, ‘Article 27 of the Statute of the International Court of Justice’ (1992) 32 Virginia JIL 213, at 228; and Palchetti, ‘Article 26’ in The Statute of the International Court of Justice: A Commentary (eds Zimmermann et al, 2012), 474, at 476, para 2. 39

  For the relevant debate see Lippold and Paulus, n 5, 396–8, paras 16–18.

40

  The ICJ has observed that the object of both the general power to establish subsidiary organs under Art 7(2) of the UN Charter and the particular powers for the General Assembly to do so under Art 22 of the UN Charter are ‘to enable the United Nations to accomplish its purposes and to function effectively. Accordingly, to place a restrictive interpretation on the power of the General Assembly to establish subsidiary organs would run contrary to the clear intention of the Charter’ (Application for Review of Judgment No 158 of the United Nations Administrative Tribunal, ICJ Rep 1973, p 172). See also the Effect of Awards case, where the Court did not accept an argument that the General Assembly’s implied power to establish the UN Administrative Tribunal (UNAT) must be applied as restrictively as possible (Effect of Awards of Compensation by the UN Administrative Tribunal ICJ Rep 1954, p 58 (Effect of Awards case)). 41

  Arts 22 and 29 of the UN Charter refer to the establishment of such subsidiary organs, which the principal organ ‘deems necessary for the performance of its functions’; Art 68 of the UN Charter speaks in terms of the establishment of ‘commissions as may be required for the performance of its functions’. 42

  Art 7(2) of the UN Charter requires a subsidiary organ established under it to ‘be established in accordance with the present Charter’; however, this does not appear to have been considered a limitation on the principal organs’ powers. See also Lippold and Paulus, n 5, 396–99, paras 16–20. 43

  In the Effect of Awards case, n 40, the Court observed (at 58): ‘The precise nature and scope of the measures by which the power of creating a tribunal was to be exercised, was a matter for determination by the General Assembly alone.’ It noted further that it ‘specifically leaves it to the General Assembly to appreciate the need for any particular organ’ (Application for Review of Judgment No 158 of the United Nations Administrative Tribunal, ICJ Rep 1973, p 172). Jaenicke draws a contrast between the powers given to the General Assembly and the Security Council in Arts 22 and 29, respectively and those given to ECOSOC in Art 68: ‘[T]he authorization given to ECOSOC lacks [a] discretionary element [present in Arts 22 and 29] and requires that the establishment of a subsidiary organ should be objectively necessary, so that it may be questioned on this ground. This provides the constitutional basis for the [General Assembly] to stop the proliferation of subsidiary organs

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created by ECOSOC, which might put an additional strain on the UN budget.’ Jaenicke, n 19, 225–6, paras 29–30. 44

  Sarooshi, n 14, 426; contra see Paulus, ‘Article 29’ in Simma et al (eds), n 5, 983 at 987– 8, para 6; and Lippold and Paulus, n 5, 399, para 20. 45

  Jaenicke observed that there had been an issue about whether Art 7(2) of the UN Charter was to be regarded not as a generally applicable authorization to create subsidiary organs but as a ‘mere reference to those other articles of the Charter (Arts 22, 29, and 68) in which a principal organ…has been expressly authorized to establish subsidiary organs for the performance of its functions’. He notes that the practice of the UN has shown that Art 7(2) provides an additional legal basis for the creation of subsidiary organs: ‘This is evidenced by the fact that subsidiary organs have been established beyond the scope of the specific authorizations contained in Arts 22, 29 and 68.’ (Jaenicke, n 19, 224, para 27) cf Paulus, n 44, 987–8, para 5, who posits that ‘Article 29 constitutes the sole legal basis for the [Security Council] to establish subsidiary organs.’ He views Art 7(2) of the Charter as allowing for the establishment of subsidiary organs ‘in the absence of specific authorizations elsewhere in the Charter’, and describes Art 29 as lex specialis: ‘Only in the cases of “mixed” subsidiary organs reporting to several Charter organs may Article 7 (2) serve as a legal basis, jointly with the special provisions concerned’(ibid).There are, of course, instances where the principal organ has referred to the particular article by which it has established a subsidiary organ: by GA Res 111 (II) (1947), para 2, the General Assembly specifically indicated that it was establishing its Interim Committee ‘as a subsidiary organ of the General Assembly established in accordance with Article 22 of the Charter’. 46

  Application for Review of Judgment No 158 of the United Nations Administrative Tribunal ICJ Rep 1973, p 172. 47

  The OLA characterized the United Nations Development Programme (UNDP) and the United Nations International Children’s Emergency Fund (UNICEF) as subsidiary organs of the General Assembly under Arts 7 and 22 of the UN Charter ([1994] UN Juridical YB 490). 48

  Effect of Awards case, n 40, 61.

49

  ‘The Charter does not confer judicial functions on the General Assembly.…By establishing the Administrative Tribunal [which does possess judicial functions], the General Assembly was not delegating the performance of its own functions: it was exercising a power which it had under the Charter to regulate staff relations’ (ibid). See Sarooshi, who takes the view that while principal organs may establish subsidiary organs to perform functions that the principal organ may not itself perform (so long as the principal organ possesses ‘either an express or implied power under the Charter to be able to establish such an organ’), they may only do so by exercising the general power under Art 7(2) of the Charter and not under Arts 22, 29, or 68 (Sarooshi, n 11, 93). See also Rudolf, ‘United Nations Committees and Subsidiary Organs, System of’ in MPEPIL (October 2006), para 3). Sarooshi observes that the use of the ‘general authority to establish subsidiary organs to perform functions which the principal cannot itself exercise is of considerable importance when determining the legality of the recent establishment by the [Security Council] of several subsidiary organs: in particular the UN War Crimes Tribunals for the former Yugoslavia and Rwanda’ (Sarooshi, n 14, 428). See also Bowett, United Nations Forces: A Legal Study of United Nations Practice (1964), 178, who states: ‘The establishment of a subsidiary organ simply cannot be divorced from the functions entrusted to the organ…. In other words, a resolution which contemplates a subsidiary organ with a given function has to find its constitutional basis first and foremost in the articles justifying

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the functions—and not in an article giving a general power to establish subsidiary organs.’ Cf Lippold and Paulus, n 5, 400–2, paras 25–7. 50

  As noted in n 40, the ICJ in the Application for Review of Judgment No 158 of the United Nations Administrative Tribunal ICJ Rep (1973), p 172, held that a restrictive interpretation on the General Assembly as regards its power to establish subsidiary organs would run contrary to the intention of the Charter drafters. See also Paulus, n 44, 983, at 992, para 17, who observes that this finding applies mutatis mutandis to the Security Council. For discussion of arguments that such a limit exists, see Sarooshi, n 11, 98–101. 51

  Paulus, n 44, 992, para 17. Paulus indicates that ‘the parent body must remain the “master of its sphere of responsibly”’ (a phrase which Paulus attributes to Schaefer, Die Funktionsfähigkeit des Sicherheitsmechanismus der Vereinten Nationen (1981), 62). Sarooshi refers to functions of the Security Council, which are ‘the very raison d’être of’ the Security Council, and relies on the operation of the delegatus non potest delegare doctrine as meaning that such a task may not be delegated (Sarooshi, n 11, 115–16). Given that the Security Council has no greater raison d’ être than maintaining and restoring international peace and security, and given that so much of what it does is directly related to this function (see, eg, chs 26 and 27), it may be extremely difficult to come to an understanding of which of the Security Council’s functions are, under Sarooshi’s test, delegable and which are not. 52

  Paulus, n 44, 992, para 17. Sarooshi argues that the Security Council may not delegate certain of its Chapter VII prerogatives, such as determining when a threat to or breach of the peace has occurred, the authority to order provisional measures, and the authority to order enforcement measures to be taken against a state (Sarooshi, n 11, 101 and ch 1). 53

  See the discussion of personality in the context of semi-autonomous subsidiary organs at section 9.4.3.1, ‘Semi-autonomous subsidiary organs’. 54

  [1994] UN Juridical YB 479. ‘There are…compelling reasons for recognizing the capacity of defined subsidiary bodies of international organizations, for certain purposes, to perform legal acts and incur legal obligations in the name of their parent body, or in their own names on behalf of such parent body. This is essential in order to enable the subsidiary bodies to discharge their mandates, as well as to protect the parent organizations from liability resulting from the activities of their subsidiaries, which they form purposely separately with independent financial resources’ (ibid). 55

  [1994] UN Juridical YB 480. See the discussion in section 9.4.3.1, ‘Semi-autonomous subsidiary organs’ regarding semi-autonomous subsidiary organs. 56

  Sarooshi, n 11, 87; Lippold and Paulus, n 5, 410–11, paras 36–7. Art 6 of the International Law Commission’s (ILC) 2011 Draft Articles on the Responsibility of International Organizations, with commentaries, provides: ‘The conduct of an organ or agent of an international organization in the performance of its functions of that organ or agent shall be considered an act of that organization under international law, whatever position the organ or agent holds in respect to the organization.’ The General Assembly took note of the ILC Draft Articles in GA Res 66/100 (2011). 57

  The term ‘United Nations’ is said by the UN OLA to refer to the international organization, ‘including all the principal and subsidiary organs provided for by the Charter or established on the basis of the authority conferred by the Charter’ ([2000] UN Juridical YB 355). The OLA notes that the term ‘excludes organizations established by other intergovernmental agreements as separate entities with their own legal personality’ (ibid). 58

  The Grand Chamber of the European Court of Human Rights (ECtHR) observed that the United Nations Interim Administration in Kosovo (UNMIK) ‘was a subsidiary organ of the UN created under Chapter VII of the Charter’, and concluded ‘that the impugned inaction [of certain of the forces participating in it] was, in principle, “attributable” to the UN’ rather than to the respondent states (Behrami and Behrami v France; Saramati v France, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Germany and Norway App nos 71412 and 78166/01 (ECHR, 2 May 2007), para 143). The Court considered that the key question as regards attribution was whether the UN Security Council ‘retained ultimate authority and control so that operational command only was delegated’ (ibid, para 133), a test that has been the object of considerable criticism. Cf the approach taken by the ILC in the 2011 Draft Articles on the Responsibility of International Organizations, with commentaries. Art 7 provides that the attributability test is based on ‘effective control’ over the conduct of the organ. As noted in the commentaries to Art 7, the premise that the UN ‘assumes that in principle it has exclusive control over the deployment of national contigents in a peacekeeping force…led the United Nations Legal Counsel to state: “As a subsidiary organ of the United Nations, an act of a peacekeeping force is, in principle, imputable to the Organization, and if committed in violation of an international obligation entails the international responsibility of the Organization and its liability in compensation”’ (para 6 of the commentaries to Art 7, relying on Letter of 3 February 2004 by the United Nations Legal Counsel to the Director of the Codification Division, UN Doc A/ CN.4/545, Sect. II.G). See also the Al-Jedda case, where the Grand Chamber, while not reversing its approach in Behrami, endorsed the ‘effective control’ approach (Al-Jedda v UK App no 27021/08 (ECHR, 7 July 2011), para 84). See ch 13, ‘Responsibility of the United Nations’. 59

  Effect of Awards case, n 40, 61.

60

  See discussion of Rule 66 of the General Assembly Rules of Procedure adopted by GA Res 73 (II) (1947) as amended (hereinafter referred as ‘GA Rule’ followed by the rule number) at para 6.56. 61

  The Interim Committee, a subsidiary organ of the General Assembly (see para 6.86), was authorized by the resolutions re-establishing it (GA Res 196 (III) (1948) and GA Res 295 (IV) (1949)) to request Advisory Opinions. 62

  Effect of Awards case, n 40, 61. See also the discussion of the binding effect of decisions of subsidiary organs by the Fifth Committee (Administrative and Budgetary) (UN RP (1945– 54) vol I, Art 22, pp 689–95). 63

  See Sir Percy Spender’s Separate Opinion, where he refers to the fact that any organ of the UN, including subsidiary organs, ‘has in practice to interpret its authority in order that it may effectively function’ (Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter) ICJ Rep 1962, p 195). 64

  Section 11 of the Convention on Privileges and Immunities of the United Nations, 13 February 1946, 1 UNTS 15, refers to certain privileges and immunities enjoyed by ‘representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations…while exercising their functions and during their journey to and from the place of meeting’. That subsidiary organs are afforded these privileges and immunities is confirmed in a Legal Opinion of the UN Secretariat ([1963] UN Juridical YB 167). This is the case even with semi-autonomous subsidiary organs possessing capacities to contract, acquire, and dispose of property, and to institute legal proceedings (Szasz, n 32, 6, fn 14). See section 9.4.3.1, ‘Semi-autonomous subsidiary organs’ for a discussion of semi-autonomous organizations. A 1990 Legal Memorandum addressed the issue of whether it was appropriate for a member state to add value-added tax to UNICEF greeting cards. After finding that ‘[a]s a subsidiary organ of the United Nations, UNICEF enjoys the privileges and immunities provided for in the 1946 Convention on the Privileges and Immunities of the United Nations, to which the State concerned is a party’, the OLA found that UNICEF may request an exemption or refund from the member state on the sales of such products ([1990] UN Juridical YB 290–1). In 2000, the OLA of the UN characterized the seizure by the competent authorities in an unnamed member state of a number of motor vehicles belonging to UNICEF as illegal. It held that ‘as a subsidiary organ of the United Nations, UNICEF is entitled to the privileges and immunities provided From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

for in the Convention on the Privileges and Immunities of the United Nations’, and observed that the government of the state in question ‘has a legal obligation to advise the competent judicial authorities, including the civil court concerned, of the immunity of UNICEF from every form of legal process, including the civil suit in question and all orders issued therein, including orders of execution of judgement’ ([2000] UN Juridical YB 346–7). In the ICJ case of Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Dumitru Mazilu, Special Rapporteur of the SubCommission on Prevention of Discrimination and Protection of Minorities, claimed that the Romanian authorities had denied him a permit to travel to Geneva to present his report to the Sub-Commission. The Court recognized that the Human Rights Commission was a subsidiary organ of ECOSOC, and that the Sub-Commission was ‘in turn a subsidiary organ of the Commission’ (Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations ICJ Rep 1989, p 187). As such, the Court found that Mr Mazilu was entitled to such privileges and immunities as were guaranteed to the UN under the Convention on the Privileges and Immunities of the United Nations (in particular, it held that the term ‘experts on mission’ from Art VI, s 22 of the Convection was applicable to him) (ibid, p 198). In another case, the Court held that the Convention of Privileges and Immunities was applicable to Dato’ Param Cumaraswamy, a Malaysian jurist who had been appointed Special Rapporteur on the Independence of Judges and Lawyers by the Commission on Human Rights. The Court again noted that the Commission on Human Rights was a subsidiary organ of ECOSOC, and held that Mr Cumaraswamy was immune from a claim of slander relating to remarks made to a British newspaper about his work (Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights ICJ Rep 1999, p 89). 65

  The Secretariat has said that the use of the flag by a disaster relief unit that was established as a subsidiary organ of the UN would clearly be permissible under Art 4 of the United Nations Flag Code ([1971] UN Juridical YB 188). 66

  UN RP (1945–54) vol I, Art 22, p 669. See also a 1990 Legal Opinion to the effect that the UNDP’s Resident Representatives in Member States have ‘the authority to conclude contractual arrangements for the acquisition of real property on behalf of the United Nations Development Programme’. The Opinion noted that subsidiary organs may benefit from the UN’s capacities at the national level ([1990] UN Juridical YB 276–7). Before certain subsidiary organs ‘can exercise the right to perform certain acts, such as acquisition of real property and institution of legal actions, internal legislative authorization may be required’. ([1994] UN Juridical YB 480). See the discussion of semi-autonomous organs at section 9.4.3.1, ‘Semi-autonomous subsidiary organs’; also see ch 11, ‘The Legal Personality of the United Nations’ and ch 13, ‘Responsibility of the United Nations’. 67

  Art 101(1) of the UN Charter authorizes the Secretary-General to appoint staff, and GA Rule 46 provides: ‘The Secretary-General shall provide and direct the staff required by the General Assembly and any committees or subsidiary organs which it may establish.’ Despite this, certain General Assembly subsidiary organs (eg the UN High Commissioner for Refugees) possess the power to appoint their own staff. For a discussion of this, see Szasz, ‘The Role of the UN Secretary-General: Some Legal Aspects’ (1991) 24 NYU JILP 161, 172– 6. 68

  ‘Many subsidiary organs of the General Assembly have themselves established subsidiary organs to assist them in their work. That method was followed for example by the Preparatory Committee for the Twenty-fifth Anniversary of the United Nations and by the Preparatory Committee for the Second United Nations Development Decade which both prepared declarations adopted by the General Assembly at its commemorative session on 24 October 1970. Similarly the United Nations Scientific Advisory Committee which advised on the preparations for the 1963 United Nations Conference on Science and Technology for

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the Benefit of the Less Developed Areas was assisted, in working out the details of the preparatory work by a Scientific Advisory Panel consisting of twelve members, seven of which served as alternates for members of the Scientific and Advisory Committee while five were nominated from countries selected in such a way as to ensure a wider geographical distribution’ ([1971] UN Juridical YB 202). Rule 102 (formerly Rule 104) of the GA Rules, eg, explicitly provides that its Main Committees can establish sub-committees; however, see section 9.2 regarding the General Assembly’s Main Committees, and in particular para 6.52 on the question of whether or not they are to be considered subsidiary organs of the General Assembly. The OLA considered that the UNDP, a subsidiary organ, ‘may be empowered in a specific case, and under an appropriate legislative authority of the General Assembly, or of its Governing Council, to establish its own subsidiary organs’. It did not, however, ‘have the capacity to establish a United Nations subsidiary organ absent a legislative authority of the General Assembly or of the UNDP Governing Council’ ([1991] UN Juridical YB 299–300). 69

  ‘Having regard to rule 104 [of the General Assembly Rules of Procedure, which provides that each Committee of the General Assembly “may set up sub-committees, which shall elect their own officers” and which has been renumbered GA Rule 102], the General Assembly has not considered it necessary, in most instances, to confer express authority for [the purpose of establishing “sub”-subsidiary organs] upon its subsidiary organs. The absence of such express authorization in the resolution [in question] should not, therefore, be considered as constituting a legal bar to the subject proposal’ ([1971] UN Juridical YB 202). In the case under consideration, which involved the establishment by the Preparatory Committee for the United Nations Conference on the Human Environment of a subcommittee to prepare drafts of specific international legal instruments, the OLA found that it would be advisable that the ‘sub’-subsidiary organ be kept ‘relatively small (15 at most)’, be composed of government experts competent in the field, be geographically balanced, and feature the participation of experts designated by the agencies most directly concerned, and noted that it ‘might be preferable if discussions were conducted in closed sessions’ (ibid). 70

  The OLA stressed that in the performance of its functions, the ‘sub’-subsidiary organ would be under the authority of the subsidiary organ that created it, noting that the ‘sub’subsidiary organ ‘can only discharge such functions (or part of them, as directed) as have been entrusted to the parent body itself’ (ibid). In reply to the question of whether a parent subsidiary organ of the General Assembly (UNDP) could provide that one of its ‘sub’subsidiaries use fewer languages than it does, the OLA observed that if this were to occur, it would run counter to General Assembly directives on the matter. ‘If a choice of languages is desired that would contravene a General Assembly or Economic and Social Council decision, then the permission of the Assembly or the Council must be secured. This can be granted by an explicit resolution or decision, or implicitly through the approval of a financial implications statement anticipating the use of fewer languages than those normally authorized’ ([1983] UN Juridical YB 169). 71

  The OLA held that ‘there is no legal impediment to the Governing Council [of the United Nations Environment Programme (UNEP)] establishing a subsidiary organ with authority to act on its behalf in matters within the competence of the Governing Council and having in its membership some States that are not members of the Council provided that the States concerned are Members of the United Nations or alternatively States that are assessed contributions by the General Assembly on the basis of their participation in UNEP activities. In the absence of guidance from the General Assembly there would not appear to be a

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sufficient basis for the Governing Council to include as members of the proposed subsidiary organ States that meet neither of these criteria’ ([1983] UN Juridical YB 170). 72

  In 1991 the question arose as to whether or not the Governing Council of UNEP could entrust one of its subsidiary organs with the task of reviewing and approving certain measures, such as establishing programme priorities and approving additional activities under a supplementary programme. The UN OLA held that the Governing Council could not delegate such powers, noting that they had been allocated to it by the General Assembly, and that a subsidiary organ of the General Assembly could not change its tasks and functions as allocated by the General Assembly without its approval. The OLA noted, however, that ‘It goes without saying that subsidiary bodies of the Council are fully entitled to consider and make recommendations to the Council or to implement Council decisions when requested’ ([1991] UN Juridical YB 286). 73

  In the First Committee (Disarmament and International Security), during the 2nd session of the General Assembly, objections were raised to the establishment of the Interim Committee (discussed at para 6.86) on the basis that it would trespass on the Security Council’s international peace and security functions. Against this, it was argued that the General Assembly also had functions in relation to the maintenance of international peace and security. A compromise was reached, whereby certain additional limitations were inserted into the draft resolution that the First Committee recommended to the General Assembly (UN RP (1945–54) vol I, Art 22, p 675). See Sarooshi, n 11, 133–41. See also Khan, ‘Article 22’ in Simma et al (eds), n 5, 719, 732–4, paras 27–34. 74

  See the discussion in section 2.2, ‘Limitations on powers of establishment’.

75

  Art 12(1) of the UN Charter provides: ‘While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.’ 76

  In a Legal Opinion that considered whether the Trade and Development Board of the United Nations Conference on Trade and Development (UNCTAD) could adopt a resolution on economic problems arising from the Gulf crisis, the OLA found that Art 12(1) of the UN Charter was applicable to UNCTAD and its organs, such as the Trade and Development Board ([1990] UN Juridical YB 272–3). As regards the binding nature of Art 12(1) of the UN Charter, see ch 2, ‘General Assembly’, section 8.2, ‘Article 12(1)’. 77

  In finding that the participation of UNDP or its staff in the establishment or operation of the entity was not legally permissible, a legal opinion of the UN Secretariat referred to ‘the character of the United Nations, of which UNDP is a part, as an international organization operating in the territories of Member States, and the status of its staff members, as international civil servants’. In particular, it noted that the privileges and immunities in the host country ‘may be in conflict with the idea of active participation in the establishment and operation of a corporate body under national law’, and that UNDP’s submission to the domestic law of the host country ‘could, in case of a claim arising out of UNDP’s involvement in the operation of the corporate body, be construed to constitute a waiver of the privileges and immunities to which UNDP is entitled’ ([1990] UN Juridical YB 259–60). 78

  UN Peacekeeping Forces, recipient of the 1998 Nobel Peace Prize, were found to lack the capacity to suggest names for future candidates for the prize to the Nobel Committee, as they had been given no such mandate (ibid, pp 269–70). 79

  A legal opinion of the Secretariat of the UN held that it would not be appropriate for UNICEF (or its Greeting Card Operation) to be a shareholder in a private company, as this ‘would submit the Organization to the regulations and rules of the national law governing corporate entities, and would thus be incompatible with the character and status of the United Nations, of which UNICEF is a subsidiary organ’. Nor would it be appropriate for

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UNICEF’s representatives to sit on the board of directors of a national company, as this role ‘could subject them, and possibly UNICEF itself which they would represent, to the national law of the State in question for the regularity of the operational and financial activities of the corporation’. It opined further that such a role would not be compatible with the representatives’ status as international civil servants (ibid, pp 256–7). 80

  For a discussion of semi-autonomous subsidiary organs, see section 9.4.3.1, Semiautonomous subsidiary organs’. 81

  [2000] UN Juridical YB 357.

82

  [1971] UN Juridical YB 202.

83

  For example, the Interim Committee of the General Assembly or the Sanctions Committees of the Security Council. 84

  For example, the General Assembly’s Special Committee on Peace-Keeping Operations established under GA Res 2006 (XIX) (1965), its Special Committee on the Charter of the United Nations and the Strengthening of the Role of the Organization established under GA Res 3349 (XXIX) (1974), its Special Committee of 24 established under GA Res 1514 (XV) (1960), and its Special Committee under GA Res 2443 (XXIII) (1968). The OLA noted ‘that there is nothing in the Charter which prevents the General Assembly from authorizing committees and sub-committees of limited membership to hold meetings in private, from which representatives of other members of the United Nations are excluded. Such procedure, which has the support of twenty-five years of practice, does not violate the principle of sovereign equality. This principle assures to each Member of the United Nations that it be considered eligible for appointment to such committees’ [1971] UN Juridical YB 195–6. See also GA Rule 60 [formerly Rule 62]. 85

  For example, the Investments Committee of the General Assembly (GA Res 82 (I) (1946), Annex 1, s 25) and the ILC established under GA Res 174 (II) (1947), in which individuals participate in their personal capacity and not as representatives of their governments. 86

  For example, the United Nations Mediator in Palestine was a subsidiary organ of the General Assembly consisting of a single person, Count Folke Bernadotte (UN RP (1945–54) vol I, Art 7, p 226), and the United Nations Plebiscite Commissioner for the Trust Territory of Togoland under British administration was a subsidiary organ of the General Assembly (UN RP (1954–55) vol I, Art 22, p 225). 87

  For example, when UNCTAD was established in 1964, the General Assembly, in GA Res 1995 (XIX) (1964), ‘emphasized the need to observe the principle of equitable geographical distribution and the desirability of continuing representation for the principal trading States in the composition of the Conference’s permanent organ, the Trade and Development Board’ (UN RP Supp no 3 (1959–66) vol I, Art 7, pp 201–2). Similarly, when the InterGovernmental Committee for the World Food Programme was established in 1961, the General Assembly requested ECOSOC to take into account ‘the need for balanced representation of economically developed and developing countries, and other relevant factors such as the representation of potential participating countries, both contributing and recipient, equitable geographical distribution and the representation of both developing and less developed countries having commercial interests in the international trade in foodstuff’ (ibid, p 202). See UN RP Supp no 6 (1979–84) vol I, Art 7, pp 136–7. See also GA Res 36/39 (1981), laying down the geographical distribution for the members of the ILC. 88

  For example, the UN Economic Commission for Asia and the Pacific and the Economic Commission for Latin American and the Caribbean, both subsidiary organs of ECOSOC.

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89

  From 1945–84, the Repertory of Practice produced a list of subsidiary organs of the General Assembly in which it categorized the appointment of members of a subsidiary organ as follows: (a) election by the General Assembly, (b) decision of the General Assembly, (c) a category of states or the naming of certain states without a formal election, (d) appointment by the President of the General Assembly, (e) appointment by a committee of the General Assembly, (f) appointment by the Secretary-General, or (g) appointment by other indirect means. In some cases, more than one method was relied upon. See, eg, UN RP (1945–54) vol I, Art 7, pp 703, 705ff; also, n 131). From 1985 onwards, no attempt was made at such a categorization. According to the Legal Counsel, there is no legal impediment to the establishment of a subsidiary organ (with authority to act on behalf of a parent organ on matters within the competence of the parent organ) having a membership different from that of the parent organ—provided, in the case under consideration, that the states concerned were ‘members of the UN or alternatively States that are assessed contributions by the General Assembly’ ([1983] UN Juridical YB 170). 90

  Examples include the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction (GA Res 2750 C (XXV) (1970)), where the General Assembly decided to invite member states not appointed to the Committee to participate as observers and to be heard on specific points. Similarly, with the Preparatory Committee for the United Nations Conference on Human Environment, the General Assembly decided that interested member states not appointed to the Committee might designate representatives as accredited observers ([1970] UN Juridical YB 194). 91

  [1970] UN Juridical YB 194. For example, the Republic of Korea was invited to attend the debate in the General Assembly’s First Committee as an observer before it became a UN member state. However, see para 6.52 regarding the question of whether or not the General Assembly’s Main Committees are to be considered subsidiary organs of the General Assembly. 92

  Under this formula, the General Assembly resolution provides that the subsidiary organ is ‘open to all States Members of the United Nations or members of the specialized agencies or of the International Atomic Energy Agency’ (GA Res 51/210 (1996)). 93

  [2000] UN Juridical YB 349.

94

  If ‘entities, intergovernmental organizations and other entities…have received a standing invitation to participate as observers in the sessions and work of the General Assembly’, they would have ‘the right to participate in the General Assembly and its Main Committees, the Economic and Social Council and their subsidiary organs and all meetings and conferences convened by them’ and, as such, are ‘entitled to participate as observers, if they so desire, in the sessions and work of the Ad Hoc Committee [to elaborate international conventions for the suppression of terrorist bombings and acts of nuclear terrorism established by GA Res 51/201 (1996)] unless the General Assembly or the Ad Hoc Committee specifically decide otherwise’ (ibid). 95

  In 1974, the General Assembly invited the PLO to participate as an observer in the sessions and work of the General Assembly, and of all international conferences convened under the auspices of the General Assembly. It also noted that it considered that the PLO was ‘entitled to participate as an observer in the sessions and the work of all international conferences convened under the auspices of other organs of the United Nations’ (GA Res 3237 (XXIX) (1974)). According to the OLA ([1982] UN Juridical YB 157): ‘Generally, observers in the General Assembly have the right to attend meetings and to make oral statements on matters within their competence. However, over the years, the PLO has been accorded more extensive rights of participation than other entities participating in an observer capacity. Thus, for instance, the PLO enjoys the right to participate in the plenary meetings of the General Assembly, where its observer can make statements on any matter which is considered to have a bearing upon the situation in the Middle East and speak in From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

exercise of the right of reply. In Main Committees of the Assembly, the observer may speak on any matter of concern to the PLO. Further, by virtue of the sui generis terms of resolution 3237 (XXIX), the PLO has a standing invitation to participate in all United Nations conferences and meetings whereas most organizations and entities require a specific invitation by the competent intergovernmental organ for each conference.’ In 1975, ECOSOC afforded the PLO the right to participate in an observer capacity in the deliberations of the Council, where it has rights of participation similar to those it enjoys in the General Assembly and its subsidiary organs. The PLO’s right to participate in the Security Council was more limited; however, it was invited on several occasions to participate in the debate on the situation in the Middle East under rule 37 of the provisional rules of procedure (ibid). In the opinion of the OLA ([1983] UN Juridical YB 189): ‘A review of the practice of the Economic and Social Council in the application of para 6.122 of that rule reveals that the Palestine Liberation Organization and the African national liberation movements recognized by the Organization of African Unity have participated regularly in the sessions and in the work of the Council. Participation by these organizations…in meetings of the functional commissions and their subsidiary organs would therefore be entirely consistent with the practice of the Economic and Social Council.’ 96

  ‘In the absence of a specific resolution or decision inviting them to do so, nongovernmental organizations do not have the right to attend or participate as observers in the sessions and work or the meetings of the General Assembly or its subsidiary organs’ ([2000] UN Juridical YB 350). 97

  See, eg, Rule 27(2) of the ECOSOC Rules of Procedure, which recognizes that ECOSOC may decide to draw up the rules of procedure of its commissions and their subsidiary bodies. As regards the General Assembly, Rule 161 (formerly Rule 162) provides: ‘The General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions…. The rules relating to the procedure of committees of the General Assembly, as well as rules 45 and 60, shall apply to the procedure of any subsidiary organ unless the Assembly or such subsidiary organ decides otherwise.’ 98

  For example, the Rules of Procedure of ECOSOC provide a higher level of autonomy for Regional Commissions than for other entities established by ECOSOC. 99

  Examples here include the ILC, established as a subsidiary organ of the UN General Assembly by GA Res 174 (II) (1947), comprised of independent experts for the promotion of the progressive development of international law. Another example is the now defunct United Nations Sub-Commission on the Promotion and Protection of Human Rights (originally named the Sub-Commission on Prevention of Discrimination and Protection of Minorities and renamed in 1999). It was established in 1947 as a subsidiary body of the (also now defunct) Commission on Human Rights and comprised independent expert members. 100

  For example, the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR, respectively). For more on those Tribunals, see ch 31, ‘Criminal Tribunals Established by, or in Relationship with, the UN’. The ICJ describes the UNAT as a ‘permanent judicial tribunal established by the General Assembly, functioning under a special statute and within the organized legal system of the United Nations’ (Effect of Awards case, n 40, 55–6). 101

  GA Res 1798 (XVII) (1962) provides that: ‘[t]ravel and subsistence expenses shall be paid in respect of members of organs and subsidiary organs who serve in an individual personal capacity and not as representatives of Governments’. It further provides that, with certain exceptions as set out, ‘neither travel nor subsistence expenses shall be paid in respect of members of organs or subsidiary organs who serve as representatives of Governments’. See also GA Res 2489 (XXIII) (1968) and Secreatry-General’s Bulletin UN Doc ST/SGB/107/Rev.6, 25 March 1991. For a discussion of the applicability of the travel From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

rules to members of the Committee on the Exercise of the Inalienable Rights of the Palestinian People, see [1990] UN Juridical YB 297–304. 102

  [1990] UN Juridical YB 304.

103

  The language ‘sessional’ and ‘intersessional’ is frequently used to distinguish those entities that are in existence only (or predominantly) when the annual plenary meeting is taking place from those that meet between the annual plenary meetings. 104

  For example, UNICEF (GA Res 57 (I) (1946)) and the United Nations High Commissioner for Refugees (UNHCR) (GA Res 428 (V) (1950)). Semi-autonomous subsidiary organs are discussed further in section 9.4.3.1, ‘Semi-autonomous subsidiary organs’. 105

  For example, the United Nations Special Committee on the Balkans (UNSCOB) was established in 1947 by GA Res 109 (II) (1947). In 1951, the General Assembly approved a report by UNSCOB and decided to discontinue the Committee (GA Res 508 (VI) (1951)). 106

  For example, the Committee to Assist the Secretary-General in Negotiations with the United States Government regarding the arrangements necessary as a result of the Establishment of the seat of the United Nations in the United States (GA Res 22 B (I) (1946)). 107

  For example, the Open-Ended Working Group on the Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa (GA Res 54/234 (2000)). 108

  The OLA considered the status of the UN Council for Namibia, after Namibia’s independence. The Opinion states that ‘While the constitutive resolution (2248 (S-V) of 19 May 1967) and subsequent resolutions of the General Assembly imply in substantive terms that the mandate of the Council is fulfilled and that, therefore, the Council ceases to exist upon Namibian independence, no automatic dissolution of the Council is foreseen in these resolutions. The independence of Namibia on 21 March 1990 will not, therefore, automatically trigger the dissolution of the Council, which will continue to exist from a purely legal point of view as a duly constituted subsidiary organ of the General Assembly until such time as the Assembly itself decides otherwise…. This is not to say, of course, that all of the activities of the Council will survive the independence of Namibia. Some activities of the Council will automatically lose their raison d’être or will by their very nature be assumed by the new Government of Namibia’ ([1990] UN Juridical YB 271). 109

  GA Res 31/93 (1976).

110

  SC Res 1645 (2005) and GA Res 60/180 (2005). Due to its joint establishement by the General Assembly and the Security Council, Lippold and Paulus, n 5, 399, para 21, argue that for the termination of the PBC operations or the amendment of its structure, the two principal organs should act concurrently. According to Rudolf, ‘this legal construction enhances the political status of the body and prevents it from being dissolved unilaterally’ (Rudolf, ‘United Nations Committees and Subsidiary Organs, System of’ in MPEPIL (October 2006), para 28). 111

  UN RP Supp no 3 (1959–66) vol I, Art 7, p 201. For example, in 1961, the General Assembly approved an agreement between the UN and the International Development Association (IDA), a UN specialized agency (part of the World Bank Group). The Agreement (GA Res 1594 (XV) (1961)) called for the establishment of a Liaison Committee to ensure coordination of technical assistance and other development activities. Later that year, the General Assembly approved the establishment of a committee made up of UN member states and members of the Food and Agricultural Organization (FAO), a specialized agency (GA Res 1714 (XVI) (1961)). 112

  [1963] UN Juridical YB 168–9.

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113

  GA Res 2297 (XXII) (1967); it was ‘to be operated jointly by UNCTAD and GATT on a continuing basis and in equal partnership’. In 1974, the legal status of the International Trade Centre was confirmed by the General Assembly as that of a ‘subsidiary organ of both the United Nations and GATT’, the former acting through UNCTAD ([1990] UN Juridical YB 271–2). 114

  GA Res 2145 (XXI) (1966) and GA Res 2248 (S-V) (1967).

115

  [1983] UN Juridical YB 194.

116

  [1982] UN Juridical YB 165.

117

  ibid.

118

  [1982] UN Juridical YB 167. The UN OLA found that in its representational capacity it had the capacity to negotiate and conclude agreements on behalf of Namibia, and noted that it had full membership in a number of specialized agencies, including the ILO, and had participated in major legislative conferences such as the Third United Nations Conference on the Law of the Sea (ibid). For consideration of implications and consequences for the UN of the institution of legal proceedings in domestic courts by the Council, see ibid, 169–70. For a discussion of the modalities to be followed by ECOSOC in connection with a request by the General Assembly that ECOSOC consider granting membership in one of its subsidiary bodies to Namibia, as represented by the Council on Namibia, see ibid, 185. 119

  UNMIK is a subsidiary organ of the UN established by SC Res 1244 (1999), inter alia, to perform governmental functions in Kosovo. 120

  UNTAET was a subsidiary organ of the UN established by SC Res 1272 (1999), inter alia, to exercise governmental functions during the East Timor’s transition to independence. 121

  For a discussion of these territorial administrations, see ch 27, ‘Peacekeeping and Other Peace Operations’, section 7, ‘United Nations Transitional Administrations’. 122

  UN RP Supp no 1 (1954–55) vol I, Art 7, p 101.

123

  [1976] UN Juridical YB 200. See, eg, an opinion regarding the provision of summary records for meetings of the Committee for the Elimination of Discrimination against Women, established pursuant to Art 17(1) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). There it was observed that ‘Since the Committee was established under a separate treaty instrument, and not by the General Assembly, it is not automatically subject to the decisions of the General Assembly relating to meeting records and documentation for subsidiary organs of the Assembly’ ([1983] UN Juridical YB 185). 124

  See also ch 22, ‘Promotion and Protection of Human Rights’, section 5, ‘Human rights treaties and treaty bodies’. 125

  ECOSOC Res 1985/17 (1985).

126

  UN RP Supp no 5 (1970–78) vol I, Art 7, p 85.

127

  See also ch 7, ‘United Nations Specialized Agencies’.

128

  UN Charter, Art 57(1).

129

  The Permanent Central Opium Board and the Drug Supervisory Body were described by the Secretariat as on ‘the one hand, like the specialized agencies [given that it was] established by treaty and, on the other,…similar in some respects to that of subsidiary organs’ given their wide autonomy (UN RP Supp no 1 (1954–55) vol I, Art 7, p 101). 130

  Discussed in section 9.4.3.1, ‘Semi-autonomous subsidiary organs’.

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131

  Szasz, n 32, 5.

132

  ibid.

133

  Szasz characterized them as ‘in effect, mini-intergovernmental organizations’, which may be substantively interchangeable with specialized agencies (ibid). In the words of the UN OLA, ‘[s]ince these subsidiary bodies carry out much of their substantive work in the limited area of their mandated activities, such as caring for refugees (UNHCR and the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)), nurturing children (UNICEF) etc, their activities closely resemble those of specialized agencies’ ([2000] UN Juridical YB 357). 134

  Along with other principal organs, the General Assembly is entitled to establish, in accordance with the Charter, ‘such subsidiary organs as may be found necessary’ under the general provision at Article 7(2) of the Charter. 135

  Article 22 of the Charter provides a particular authorization for the General Assembly to ‘establish such subsidiary organs as it deems necessary for the performance of its functions’. 136

  GA Rule 161 reproduces the wording of Article 22 of the Charter. Further, it provides that the rules relating to the procedure of committees of the General Assembly, as well as rules 45 and 60, shall apply to the procedure of any subsidiary organ unless the Assembly or the subsidiary organ decides otherwise. 137

  See the Annexes in UN RP (1945–54) vol I, Art 22; UN RP Supp no 1 (1954–55) vol I, Art 22; UN RP Supp no 2 (1955–59) vol II, Art 22 ; UN RP Supp no 3 (1959–66) vol I, Art 22; UN RP Supp no 4 (1966–69) vol I, Art 22; UN RP Supp no 5 (1970–78) vol I, Art 22; and UN RP Supp no 6 (1979–84) vol II, Art 22. Beginning in 1985, however, the Secretariat modified its practice, resulting in records that are less thorough. 138

  For example, in an Opinion in 2010, the OLA characterized the United Nations Institute for Disarmament Research (UNIDIR), the United Nations Institute for Training and Research (UNITAR), and the Interregional Crime and Justice Research Institute (UNICRI) as subsidiary organs ([2010] UN Juridical YB 511). None of these entities, however, describe themselves as subsidiary organs on their websites. Similarly, UNICEF and UNHCR, each of which has been characterized as subsidiary organs of the General Assembly by the UN RP (1945–54) vol I, Art 22, p 667, do not necessarily appear under the category ‘subsidiary organs’ on the Secretariat’s websites. 139

  See at http://www.un.org/en/ga/.

140

  Note that the two Standing Committees—the Advisory Committee on Administrative and Budgetary Questions (ACABQ) and the Committee on Contributions—are grouped with the Procedure Committees for convenience. The two Standing Committees are listed by the General Assembly website as with the subsidiary organs of the General Assembly; the Procedural Committees are not. Available at http://www.un.org/en/ga/about/subsidiary/ committees.shtml. 141

  Arguments to the effect that the Main Committees were not subsidiary organs were based primarily on the fact that the Main Committees are dealt with in a separate part of the General Assembly’s Rules of Procedure from subsidiary organs (Chapter XIII of the General Assembly Rules of Procedure is entitled ‘Committees’, whereas Chapter XVII is entitled ‘Subsidiary organs of the General Assembly’). The Repertory of Practice indicates that ‘there is some, although not conclusive, indication’ that the Main Committees of the General Assembly are considered ‘an integral part of the Assembly’ rather than subsidiary organs partly on this basis. At the 2nd session of the Sixth Committee of the General Assembly, representatives objected to a recommendation that the rules on committees be placed in a separate chapter of the Rules of Procedure from those on subsidiary organs.

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This approach, it was argued, ‘would be tantamount to a decision that committees were not subsidiary organs of the General Assembly’. Against this, it was argued that ‘a committee was not usually a subsidiary organ, but was part of the Assembly itself’. The amendment calling for the rules on committees to be placed in a separate chapter was rejected (UN RP (1945–54) vol I, Art 7, p 225). The issue of the status of the Main Committees was again raised at the 4th session, when the Special Committee on Methods and Procedures proposed an amendment to the rule regarding the discussion of committee reports. See discussion at n 161. 142

  For example, Khan categorizes the Main Committees (along with two Standing Committees and two Procedural Committees) as subsidiary organs, but indicates that the ‘numerous sessional or inter-sessional committees for the purpose of serving the [General Assembly]…may not be referred to as “subsidiary organs”’ (Khan, n 73, 728, para 18); cf Sarooshi, who considers that the General Assembly has ‘accepted that a Main Committee is not usually a subsidiary organ, but a part of the General Assembly itself’ (Sarooshi, n 11, 90). 143

  GA Rule 100.

144

  GA Rule 102.

145

  GA Rule 60.

146

  GA Rule 66.

147

  UN RP (1945–54) vol I, Art 7, p 225, para 12.

148

  Unless the Committee decides otherwise in an election where only one candidate is standing (GA Rule 103). 149

  In 1971 the General Assembly decided to increase the number of Vice-Chairs from one to two (GA Res 2837 (XXVI) (1971)); and in 1997, the General Assembly increased the number of Vice-Chairs in each of the Main Committees to three (GA Res 52/163 (1997)). 150

  GA Rule 103.

151

  ibid. According to GA Res 48/264 (1994), Annex II, the General Assembly decided that the six Chairs of the Main Committees would be elected such that there would be one representative from each of the following: an African state, an Asian state, an Eastern European state, a Latin American or Caribbean state, and a Western European or other state. The sixth chairmanship would rotate regionally based on a prescribed formula. 152

  GA Rule 109 provides that no representative may address the Committee without the permission of the Chair. 153

  GA Rule 106.

154

  ibid.

155

  GA Rule 107.

156

  GA Rule 124. See ch 10, ‘Voting’, section 2.

157

  GA Rule 104.

158

  GA Rules 125 and 126.

159

  GA Rule 108.

160

  UN RP (1945–54) vol I, Art 21, pp 639–40.

161

  GA Rule 66. A proposed amendment calling for this rule was controversial, as it was argued ‘that the proposed limitation on discussion in plenary meeting of the Committees’ reports would change those subsidiary organs into principal organs by preventing the Assembly from reviewing their work. Against this it was contended that the Main Committees were not auxiliary organs, but were integral parts of the Assembly…. Whether From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

the Assembly sat in plenary meeting or in committee, it remained the Assembly.’ The amendment was adopted with 28 votes for and 24 against (UN RP (1945–54) vol I, Art 7, p 225). 162

  GA Rule 65. See the discussion on this point in UN RP (1945–54) vol I, Art 21, pp 638–

9. 163

  For example, in plenary, if a vote is equally divided on matters other than elections, a second vote is taken at a subsequent meeting within 48 hours (GA Rule 95); in a Main Committee, a proposal on which there has been an equally divided vote is regarded as rejected (GA Rule 133). For more examples of procedural differences, see UN RP (1945–54) vol I, Art 21, p 640. 164

  UN RP (1945–54) vol I, Art 21, p 640.

165

  Peterson, ‘General Assembly’ in The Oxford Handbook on the United Nations (eds Weiss and Daws, 2008), 99–100. He observed that the number of agenda items grew from 108 in 1946 to 158 in 2005 (or from 120 to 261 if counting by sub-items) (ibid, 101). For the 71st session of the General Assembly (2016–17) the agenda included 174 items (see UN Doc A/71/251, 16 September 2016, and UN Doc A/71/251/Add.1, 27 October 2016). 166

  Peterson, n 15, 99.

167

  ibid, 100–1.

168

  UN RP (1945–54) vol I, Art 21, p 638.

169

  UN Doc A/71/252, 16 September 2016, pp 8–11.

170

  Khan, n 73, 726, para 10.

171

  UN Doc A/71/252, 16 September 2016, pp 12–14.

172

  ibid.

173

  Khan, n 73, 726, para 12.

174

  UN RP (1945–54) vol I, Art 21, p 638.

175

  On 15 November 1956, the General Assembly decided to change the name of the ‘Ad Hoc Political Committee’ to ‘Special Political Committee’ and to confer a permanent character on that Committee (introduction to the General Assembly Rules of Procedure). 176

  GA Res 47/233 (1993).

177

  UN Doc A/71/252, 16 September 2016, pp 11–12.

178

  For other subsidiary organs established by the General Assembly and characterized as Special Commissions, see n 253. 179

  Khan, n 73, 727, para 13.

180

  UN Doc GA/SPD/628, 8 November 2016.

181

  GA Rule 153.

182

  UN Doc A/71/252, 16 September 2016, pp 15–18.

183

  The ACABQ, which is classified as a ‘Standing Committee’, is discussed in section 9.3.4, ‘Advisory Committee on Administrative and Budgetary Questions’. 184

  GA Rule 155.

185

  UN RP (1945–54) vol I, Art 22, p 664. The establishment of the ACABQ is provided for in the General Assembly Rules of Procedure (GA Rules 155–7).

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186

  GA Rules 158–60. The Committee on Contributions, considered a ‘Standing Committee’, is discussed in Section 9.3.5, ‘Committee on Contributions’. See also, ch 14, ‘The Financing of the United Nations’, section 6.2, ‘Committee on Contributions’. 187

  Included here in 2016–17 were agenda items on criminal accountability of UN officials, the scope and application of universal jurisdiction, measures to eliminate international terrorism, administration of justice at the United Nations, and the rule of law at the national and international levels (UN Doc A/BUR/71/252, 16 September 2016, pp 18–19). 188

  In 2016–17, these included the Report of the ILC on the work of its 68th session, the Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, and the Report of the United Nations Commission on International Trade Law on the work of its 49th session (ibid). 189

  In 2016–17, these included consideration of observer status for the Cooperation Council of Turkic-Speaking States in the General Assembly, for the Eurasian Economic Union in the General Assembly, for the Community of Democracies in the General Assembly, for the International Conference of Asian Political Parties in the General Assembly, for the International Chamber of Commerce in the General Assembly (ibid, p 19), and for the Central American Bank for Economic Integration in the General Assembly (UN Doc A/ 71/252/Add.1, 27 October 2016). 190

  The General Assembly has made numerous resolutions calling for the revitalization of its work: see GA Res 46/77 (1991); GA Res 47/233 (1993); GA Res 48/264 (1994); GA Res 51/241 (1997); GA Res 52/163 (1997); GA Res 55/14 (2000); GA Res 55/285 (2001); GA Res 56/509 (2002); GA Res 57/300 (2002); GA Res 57/301 (2003); GA Res 58/126 (2004); GA Res 58/316 (2004); and GA Res 59/95 (2004). In 2005, it decided to continue with this theme by establishing an Ad Hoc Working Group on the Revitalization of the General Assembly (GA Res 59/313 (2005)). This Working Group, open to all member states, is charged with identifying ‘ways to further enhance the role, authority, effectiveness and efficiency of the General Assembly, inter alia, by building on relevant Assembly resolutions and reviewing the agenda and working methods of the Assembly’ (GA Res 59/313 (2005), para 4). Subsequent resolutions on revitalization include: GA Res 60/286 (2006); GA Res 61/292 (2007); GA Res 62/276 (2008); GA Res 63/309 (2009); GA Res 64/301 (2010); GA Res 65/315 (2011); GA Res 66/294 (2012); GA Res 67/297 (2013); GA Res 68/307 (2014). An important step was made with GA Res 69/321 (2015) regarding the selection and appointment of the UN Secretary-General and other executive heads of the UN System. See also GA Res 70/305 (2016). The item has also been emphasized in the other Main Committees (see, eg, GA Res 58/316 (2004), GA Res 59/313 (2004), and GA Res 70/305 (2016)). 191

  Fleischhauer and Simma, ‘Article 13’ in Simma et al (eds), n 5, 525 at 539, para 53. For example, in GA Res 53/98 (1999), the General Assembly decided to establish an OpenEnded Working Group of the Sixth Committee, ‘to consider outstanding substantive issues related to the draft articles on jurisdictional immunities of States and their property adopted by the International Law Commission’, as proposed by the Sixth Committee. 192

  At http://www.un.org/en/ga/maincommittees/index.shtml.

193

  At http://www.un.org/en/ga/about/subsidiary/committees.shtml.

194

  Jaenicke argues that it is preferable to characterize the sessional committees of the General Assembly, including their sub-committees and Working Groups, as integral parts of the decision-making machinery (with their constitutional basis in Art 21 of the UN Charter, which allows the General Assembly to adopt its own rules of procedure) instead of as subsidiary organs under Arts 7(2) or 22. He notes, however, that his reasoning ‘does not apply to committees created for the performance of specific tasks for an indefinite period of

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time beyond the duration of a session, and in particular to the so-called “standing” committees’ (Jaenicke, n 19, 217, para 7). See also para 6.52. 195

  At http://www.un.org/ga/acabq/.

196

  [1982] UN Juridical YB 182.

197

  GA Rule 38.

198

  ibid.

199

  ibid.

200

  ibid.

201

  GA Rule 43.

202

  GA Rule 40.

203

  The General Committee may refer an agenda item to more than one Main Committee, or to the relevant Main Committee and the General Assembly plenary. 204

  Instead, it has become active in suggesting which items should be considered only every three years (Peterson, n 165, 100). According to Peterson, in practice, allocations of time tend to occur in the Main Committees, which set their own work schedules. Items where there is little interest are dropped, and items where there is no agreement are set aside for later sessions (ibid). 205

  GA Rule 41.

206

  GA Rule 40.

207

  GA Rule 41.

208

  GA Rule 28.

209

  ibid.

210

  ibid.

211

  GA Rule 27. Credentials shall be submitted by the Head of State or Government or by the Minister of Foreign Affairs. 212

  GA Rule 28.

213

  See, generally, Blum, Eroding the United Nations Charter (1993), ch 3. For more on the functioning of the Credentials Committee, see ch 8, ‘Membership’, section 6, ‘Representation of membership/credentials’. 214

  GA Rule 27.

215

  GA Rule 28.

216

  Sabel, Procedure at International Conferences: A Study of the Rules of Procedure of International Inter-governmental Conference (1997), 49. See ch 8, ‘Membership’, section 6. ‘Representation of membership/credentials’ 217

  GA Rule 155 provides that the General Assembly shall appoint an Advisory Committee on Administrative and Budgetary Questions. Its composition and functions are set out in GA Rules 156 and 157, respectively. 218

  GA Res 14 (I) (1946), para 2. See also GA Rule 157: ‘The Advisory Committee on Administrative and Budgetary Questions shall be responsible for expert examination of the programme budget of the United Nations and shall assist the Administrative and Budgetary Committee (Fifth Committee).’

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219

  GA Res 32/103 (1977).

220

  GA Rule 155.

221

  GA Res 16 (I) (1946), para 4.

222

  GA Rules 158 and 159.

223

  GA Rule 160. Re non-payment and suspension, see ch 8, ‘Membership’, section 3, ‘Loss of membership and membership rights’. 224

  See section 9.2.1, ‘[Main Committees] Generally’.

225

  See at http://www.un.org/en/sections/about-un/funds-programmes-specialized-agenciesand-others/index.html. Here the General Assembly provides a discussion of ‘Funds, Programmes, Specialized Agencies and Others’. Specialized agencies—unlike Funds and Programmes—are clearly not subsidiary organs. 226

  See n 138.

227

  See at http://www.un.org/en/ga/about/subsidiary/boards.shtml.

228

  Board of Auditors (established by GA Res 74 (I) (1946)); Trade and Development Board (established by UNGA Res 1995 (XIX) (1964)); United Nations Joint Staff Pension Board (established by GA Res 248 (III) (1948)); Advisory Board on Disarmament Matters (established by GA Res 37/99 K (1982)). 229

  Executive Board of the United Nations Children’s Fund (established by GA Res 57 (I) (1946) and 48/162 (1994)); Executive Board of the United Nations Development Programme and of the United Nations Population Fund (established by GA Res 2029 (XX) (1965) and 48/162 (1994)); Executive Board of the World Food Programme (established by GA Res 50/8 (1995)). 230

  See at http://www.un.org/en/ga/about/subsidiary/commissions.shtml.

231

  Disarmament Commission (established by GA Res 502 (VI) (1952) and S-10/2 (1978)); International Civil Service Commission (established by GA Res 3357 (XXIX) (1974)); International Law Commission (established by GA Res 174 (II) (1947)); United Nations Commission on International Trade Law (UNCITRAL) (established by GA Res 2205 (XXI) (1966)); United Nations Conciliation Commission for Palestine (established by GA Res 194 (III) (1948)); and United Nations Peacebuilding Commission (established by GA Res 60/180 (2005) and SC Res 1645 (2005)). 232

  Advisory Commission on the United Nations Relief And Works Agency for Palestine Refugees in the Near East (established by GA Res 302 (IV) (1949)). 233

  See at http://www.un.org/en/ga/about/subsidiary/committees.shtml.

234

  Investments Committee (established by GA Res 155 (II) (1947)); United Nations Staff Pension Committee (established by GA Res 248 (III) (1948)); Committee for the United Nations Population Award (established by GA Res 36/201 (1981)); Committee on Contributions (established by GA Res 14 (I) A (1946)); Committee for Programme and Coordination (established by GA Res 31/93 (1976) and ECOSOC Res 2008 (LX) (1976)); Committee on Conferences (established by GA Res 43/222 B (1988)); Committee on Information (established by GA Res 33/115 C (1978)); Committee on Relations with the Host Country (established by GA Res 2819 (XXVI) (1971)); Committee on the Exercise of the Inalienable Rights of the Palestinian People (established by GA Res 3376 (XXX) (1975)); Committee on the Peaceful Uses of Outer Space (COPUOS) (established by GA Res 1472 A (XIV) (1959)); and United Nations Scientific Committee on the Effects of Atomic Radiation (UNSCEAR) (established by GA Res 913 (X) (1955)).

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235

  Ad Hoc Committee on the Administration of Justice at the United Nations (established by GA Decision 62/519 (2007)); Ad Hoc Committee on Criminal Accountability of United Nations Officials and Experts on Mission (established by GA Res 61/29 (2006)); Ad Hoc Committee Established by General Assembly Resolution 51/210 [established by GA Res 51/210 (1996)]; Ad Hoc Committee of the General Assembly for the Announcement of Voluntary Contributions to the Programme of the United Nations High Commissioner for Refugees (established by GA Res 1729 (XVI) (1961)); Ad Hoc Committee of the General Assembly for the Announcement of Voluntary Contributions to the United Nations Relief and Works Agency for Palestine Refugees in the Near East (established by GA Res 1729 (XVI) (1961)); Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities (established by GA Res 56/168 (2002)); Ad Hoc Committee on the Elaboration of a Convention against Corruption (established by GA Res 55/61 (2001)); Ad Hoc Committee on the Indian Ocean (established by GA Res 2992 (XXVII) (1972)); Ad Hoc Committee on the Scope of Legal Protection under the Convention on the Safety of United Nations and Associated Personnel (established by GA Res 56/89 (2002)). 236

  Advisory Committee on Administrative and Budgetary Questions (established by GA Res 173 (II) (1947)); Advisory Committee on the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law (established by GA Res 2099 (XX) (1965)); Independent Audit Advisory Committee (established by GA Res 60/248 (2006)). 237

  Executive Committee of High Commissioner’s Programme (UNHCR) (established by GA Res 1166 (XII) (1957)). 238

  High-Level Committee on South–South Cooperation (established by GA Res 33/134 (1978)). 239

  Special Committee on Peace-Keeping Operations (established by GA Res 2006 (XIX) (1965)); Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization (established by GA Res 3349 (XXIX) (1974)); Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples (established by GA Res 1654 (XVI) (1961)) (also known as the ‘Committee of 24’, ‘C-24’, or the ‘Special Committee on Decolonization’); and Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories (established by GA Res 2443 (XXIII) (1968)). 240

  See at http://www.un.org/en/ga/about/subsidiary/index.shtml.

241

  Human Rights Council (established by GA Res 60/251 (2006)); Governing Council of the United Nations Human Settlements Programme, UN-HABITAT (established by GA Res 32/162 (1977) and GA Res 56/206 (2002)); and Council of the United Nations University (established by GA Res 3081 (XXVIII) (1973)). 242

  United Nations Environment Assembly of the United Nations Environment Programme (established by GA Res 2997 (XXVII) (1972) and GA Res 67/251 (2013)). 243

  See at http://www.un.org/en/ga/about/subsidiary/other.shtml.

244

  Panel of External Auditors of the United Nations, the Specialized Agencies and the International Atomic Energy Agency (established by GA Res 347 (IV) (1949) and 1438 (XIV) (1959)). 245

  Working Group on the Finance of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) (established by GA Res 2656 (XXV) (1970)).

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246

  Ad Hoc Working Group of the Whole on the Regular Process for Global Reporting and Assessment of the State of the Marine Environment, including Socioeconomic Aspects (established by GA Res 65/37 (2011)); Ad Hoc Working Group on the Revitalization of the General Assembly (established by GA Res 64/301 (2010)). 247

  Ad Hoc Open-Ended Working Group of the General Assembly on the Integrated and Coordinated Implementation of and Follow-Up to the Major United Nations Conferences and Summits in the Economic and Social Fields (established by GA Res 57/270 (2003)); Ad Hoc Open-Ended Informal Working Group on Marine Biological Diversity beyond Areas of National Jurisdiction (established by GA Res 59/24 (2004)); Ad Hoc Open-Ended Working Group of the General Assembly to follow up on the issues contained in the Outcome of the Conference on the World Financial and Economic Crisis and its Impact on Development (established by GA Res 63/305 (2009)); Ad Hoc Open-Ended Working Group to Study Issues Relating to the Conservation and Sustainable Use of Marine Biological Diversity beyond Areas of National Jurisdiction. 248

  Open-Ended Working Group on the Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa (established by GA Res 54/234 (2000)); OpenEnded Working Group on the Question of Equitable Representation on and Increase in the Membership of the Security Council and Other Matters Related to the Security Council (established by GA Res 48/26 (1993)); Open-Ended Working Group to Consider the Objectives and Agenda, including the Possible Establishment of the Preparatory Committee, for the Fourth Special Session of the General Assembly devoted to disarmament (established by GA Res 57/61 (2002)); Open-Ended Working Group on Ageing for the purpose of strengthening the protection of the human rights of older persons (established by GA Res 65/182 (2010)); Open-Ended Working Group towards an Arms Trade Treaty: establishing common international standards for the import, export and transfer of conventional arms (established by GA Res 63/240 (2008)). 249

  United Nations Appeals Tribunal (UNAT 2, established by GA Res 62/228 (2007)); United Nations Dispute Tribunal (UNDT, established by GA Res 62/228 (2007)); Joint Inspection Unit (established by GA Res 2150 (XXI) (1966)); United Nations Open-Ended Informal Consultative Process on Oceans and the Law of the Sea (established by GA Res 54/33 (1999) and 57/141 (2002)). While the website lists the UNAT 2 (as ‘UNAT’) and UNDT, it notes that they were abolished as of 31 December 2009. 250

  Szasz, n 32, 7.

251

  Khan, n 73, 725, para 6. He also uses the term ‘semi-autonomous’ or ‘quasiautonomous’. 252

  UN RP (1945–54) vol I, Art 7, p 226. From 1945–84, the UN Repertory provided a list of General Assembly subsidiary organs and indicated those that were ‘operational agencies’. Among those so characterized were UNICEF, UNRWA, and UNHCR (UN RP (1945–54) vol I, Art 22, p 667). Additionally, it lists a number of subsidiary organs that are of a different nature from those considered herein, eg, United Nations Korean Reconstruction Agency (UNKRA), established by GA Res 410 (V) (1950) (UN RP (1945–54) vol I, Art 22, p 667); United Nations Command for an Emergency International Force—Chief of Command, established by GA Res 1000 (ES-I) (1956) (UN RP Supp no 2 (1955–59) vol II, Art 22, p 248); and the United Nations Emergency Force, established by GA Res 1000 (ES-I) (1956) and 1001 (ES-I) (1956) (UN RP Supp no 3 (1955–59) vol II, Art 22, p 250). The heading ‘operational agencies’ fell out of use in the mid-1980s. 253

  On its website setting forth the ‘Structure and Organization’ of the UN, the Secretariat uses this term, though not as a sub-category of ‘Subsidiary Organs’ but as a category separate from it (see http://www.un.org/en/sections/about-un/funds-programmesspecialized-agencies-and-others/index.html). A 1993 Legal Opinion made reference to ‘programmes and funds, such as UNDP and UNICEF, as well as UNEP, UNCHS [United From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Nations Centre for Human Settlements] [HABITAT], UNCTAD and UNHCR’ ([1993] UN Juridical YB 387). Similarly, a 1993 agreement to establish a United Nations Integrated Office with the Russian Federation made reference to ‘the agencies, programmes and funds of the United Nations, inter alia, UNDP, UNICEF, UNHCR, UNEP, UNFPA [United Nations Fund for Population Activites], WFP [World Food Programme], UNDCP [United Nations International Drug Control Programme]’ (ibid, 64). 254

  The Repertory of Practice describes their functions and powers as follows: ‘[T]he operational agencies have been entrusted with the task of executing programmes of relief, rehabilitation and other forms of assistance by furnishing supplies and services to Governments or directly to the peoples concerned’ (UN RP (1945–54) vol I, Art 22, p 669). 255

  The Repertory of Practice describes ‘operational agencies’ as tending to possess ‘an organizational structure composing an executive head and staff and one or more governmental committees or boards exercising policy-making or advisory powers with respect to the programmes carried out by the agencies’ (UN RP (1945–54) vol I, Art 7, p 226). 256

  ibid.

257

  UN RP (1945–54) vol I, Art 22, p 667.

258

  ibid, p 669.

259

  [2000] UN Juridical YB 357.

260

  UN RP (1945–54) vol I, Art 22, p 669. The example, given in the Repertory of Practice is UNICEF. There, the Secretariat observed that while no similar provisions were bestowed on the other operational agencies discussed, including UNRWA and UNHCR, those agencies have, in fact, exercised such powers (ibid). See also ch 11, ‘The Legal Personality of the United Nations’, section 4.2, ‘Consequences of legal personality’. 261

  As noted by Khan, ‘classification may sometimes be difficult, since the [General Assembly] has only expressly granted autonomous status in the UN system in a few cases’, such as the United Nations University (UNU) and the United Nations Capital Development Fund (UNCDF) (Khan, n 73, 730, para 20). See also Szasz, n 32, 7: ‘Because [quasiautonomous bodies] do not constitute an official category with a formal definition, but rather are those complex subsidiary UN organs/bodies that share, to a greater or lesser extent [common characteristics], it is not possible to establish a definitive list.’ In the words of the UN Legal Advisor, ‘There is no official definition of this type of United Nations subsidiary body which would formally distinguish them from other United Nations subsidiary organs’ ([2000] UN Juridical YB 357). 262

  See at http://www.un.org/en/sections/about-un/funds-programmes-specialized-agenciesand-others/index.html. A listing of ‘Programmes and Funds’ on another UN website lists the same entities; however, it does not include UN Women (see http://www.un.org/depts/ otherprgs.htm). Of the entities listed, Khan considers only UNCTAD, UNEP, UNICEF, UNHCR, and UNDP under the heading ‘semi-autonomous organs’ (Khan, n 73, 738, para 49). Szasz, n 32, 7, describes the same five, along with UNU and UN-HABITAT, as ‘principal exemplars’ falling within his definition of ‘quasi-autonomous bodies’. 263

  Originally established by GA Res 57 (I) (1946) as the ‘United Nations International Children’s Emergency Fund’, but its title was changed by GA Res 802 (VIII) (1953). The Executive Board of UNICEF was reconstituted as from 1 January 1957 (GA Res 1038 (XI) (1956)). 264

  GA Res 302 (IV) (1949).

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265

  GA Res 428 (V) (1950).

266

  GA Res 1714 (XVI) (1961). The WFP is a joint organ of the UN and the specialized agency the Food and Agriculture Organization of the United Nations (FAO). Since its establishment in 1961 it has been reorganized several times (Szasz, n 32, 7, 43–4). 267

  GA Res 1995 (XIX) (1964).

268

  GA Res 2029 (XX) (1965).

269

  GA Res 2211 (XXI) (1966).

270

  GA Res 2997 (XXVII) (1972).

271

  In GA Res 56/206 (2002), the General Assembly decided to transform the Commission on Human Settlements and its secretariat, the United Nations Centre for Human Settlements (Habitat), including the United Nations Habitat and Human Settlements Foundation, with effect from 1 January 2002, into the United Nations Human Settlements Programme, to be known as UN-HABITAT. 272

  See http://www.unwomen.org/en. By GA Res 64/289 (2010), the General Assembly created UN Women, which merged and developed four previously distinct parts of the UN system: the Division for the Advancement of Women (DAW), the International Research and Training Institute for the Advancement of Women (INSTRAW), the Office of the Special Adviser on Gender Issues and Advancement of Women (OSAGI), and the United Nations Development Fund for Women (UNIFEM). 273

  ‘In 1974, the legal status of [the International Trade Centre] was confirmed by the General Assembly as that of a “subsidiary organ of both the United Nations and GATT”, the former acting through UNCTAD’ ([1990] UN Juridical YB 272). 274

  In at least one UN website, UNCDF and UN Volunteers are listed—along with UNDP Field Offices and UNIFEM—as being ‘Programmes and Funds’ that fall under UNDP (see http://www.un.org/depts/otherprgs.htm.). The fact that UNIFEM is mentioned, despite having been merged into UN Women, would appear to indicate that the website in question has not been updated. 275

  See discussion at section 8.2, ‘Specialized agencies’. Khan argues that the powers given to this type of subsidiary organ are ‘in many respects equivalent to those of specialized agencies’ (Khan, n 73, 737, para 48). 276

  [1994] UN Juridical YB 479–80. Szasz observes that these subsidiary organs ‘lack independent legal personality, but partake of that of the United Nations’ (Szasz, n 32, 6); cf Kahn, who considers some semi-autonomous subsidiary organs to possess ‘a restricted legal personality under domestic law, based only on an authorization to act in the name of the UN’, which, however, ‘does not correspond to the international legal personality enjoyed by the specialized agencies’ (Khan, n 73, 737, para 48). 277

  [2010] UN Juridical YB 581.

278

  ibid, 512.

279

  Included here are UNU (GA Res 2951 (XXVII) (1972)), the United Nations Institute for Disarmament Research (UNIDIR), and the United Nations Institute for Training and Research (UNITAR), each of which is classified as a quasi-autonomous body by Szasz (Szasz, n 32, 7). In addition, Szasz includes the following: INSTRAW, now part of UN WOMEN; UNICRI; UNITAR; UNIDIR; and United Nations Research Institute for Social Development (UNRISD) (ibid).

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280

  ‘We note that certain training and research institutes have been established as subsidiary organs of the United Nations’ ([2010] UN Juridical YB 511). The examples given are UNITAR; UNIDIR, established by the General Assembly; and UNICRI, established by ECOSOC (ibid). See also at http://www.un.org/depts/otherprgs.htm. 281

  Executive Board of the United Nations Children’s Fund, established by GA Res 57 (I) (1946) and 48/162 (1994); Executive Board of the United Nations Development Programme and of the United Nations Population Fund, established by GA Res 2029 (XX) (1965) and 48/162 (1994); Executive Board of the World Food Programme, established by GA Res 50/8 (1995); and, Executive Committee of the High Commissioner’s Programme, established by GA Res 1166 (XII) (1957). 282

  Human Rights Council (HRC), established by GA Res 60/251 (2006). There are numerous subsidiary organs (working groups, high-level task forces, etc) that function under the HRC. See ch 22, ‘Promotion and Protection of Human Rights’, section 3. 283

  Consultative Committee on the United Nations Development Fund for Women, established by GA Res 31/133 (1976) and 39/125 (1984); Committee on the Exercise of the Inalienable Rights of the Palestinian People, established by GA Res 3376 (XXX) (1975); United Nations Conciliation Commission for Palestine, established by GA Res 194 (III) (1948); Advisory Commission on the United Nations Relief and Works Agency for Palestine Refugees in the Near East, established by GA Res 302 (IV) (1949); High-Level Committee on the Review of Technical Cooperation among Developing Countries, established by GA Res 33/134 (1978); and Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories, established by GA Res 2443 (XXIII) (1968). 284

  See section 9.5.4, ‘Promotion and development of international law’ and ch 22, ‘Promotion and Protection of Human Rights’. 285

  See Fleischhauer and Simma, n 191, 551, para 96. See also ch 22, ‘Promotion and Protection of Human Rights’. 286

  Special Committee on Peacekeeping Operations, established by GA Res 2006 (XIX) (1965). 287

  Open-Ended Working Group on the Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa, established by GA Res 54/234 (2000). 288

  United Nations Peacebuilding Commission, established jointly by GA Res 60/180 (2005) and SC Res 1645 (2005). The United Nations Emergency Force (UNEF) was a subsidiary organ of the General Assembly (see discussion of its establishment at UN RP (1955–59) vol II, Art 22, pp 225–39). 289

  Disarmament Commission, established by GA Res 502 (VI) (1952) and S-10/2 (1978); Committee on the Peaceful Uses of Outer Space (COPUOS), established by GA Res 1472 A (XIV) (1959); and United Nations Scientific Committee on the Effects of Atomic Radiation (UNSCEAR), established by GA Res 913 (X) (1955). 290

  See ch 26. ‘Keeping the Peace’, section 2, ‘The role of the General Assembly’.

291

  In addition to the Fifth Committee and the two Standing Committees (ie the ACABQ and the Committee on Contributions), discussed in section 9.3, ‘Technical specialized agencies’, these entities include the Committee on Conferences, established by GA Res 43/222 B (1988); Committee on Relations with the Host Country, established by GA Res 2819 (XXVI) (1971); Ad Hoc Committee of the General Assembly for the Announcement of Voluntary Contributions to the Programme of the United Nations High Commissioner for Refugees, established by GA Res 1729 (XVI) (1961); Ad Hoc Committee of the General Assembly for the Announcement of Voluntary Contributions to the United Nations Relief and Works Agency for Palestine Refugees in the Near East, established by GA Res 1729 (XVI) From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

(1961); Independent Audit Advisory Committee, established by GA Res 60/248 (2006); Working Group on the Finance of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), established by GA Res 2656 (XXV) (1970); Joint Inspection Unit, established by GA Res 2150 (XXI) (1966) and Panel of External Auditors of the United Nations, the Specialized Agencies and the International Atomic Energy Agency, established by GA Res 347 (IV) (1949) and 1438 (XIV) (1959); Board of Auditors, established by GA Res 74 (I) (1946); and High-Level Open-Ended Working Group on the Financial Situation of the United Nations, established by GA Res 49/143 (1995). 292

  United Nations Joint Staff Pension Board, established by GA Res 248 (III) (1948); International Civil Service Commission, established by GA Res 3357 (XXIX) (1974); and Open-Ended Working Group on the Question of Equitable Representation on and Increase in the Membership of the Security Council and Other Matters Related to the Security Council, established by GA Res 48/26 (1993). 293

  Open-Ended Ad Hoc Working Group of the General Assembly on the Integrated and Coordinated Implementation of and Follow-Up to the Major United Nations Conferences and Summits in the Economic and Social Fields, established by GA Res 57/270 (2003); Working Group on the Future Operations of the International Research and Training Institute for the Advancement of Women, established by GA Res 56/125 (2002); Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, established by GA Res 3349 (XXIX) (1974); Committee for Programme and Coordination, established by GA Res 31/93 (1976) and ECOSOC, ‘Terms of reference of the Committee for Programme and Coordination’ Res 2008 (LX) (14 May 1976) and OpenEnded Working Group to consider the objectives and agenda, including the possible establishment of the preparatory committee, for the fourth special session of the General Assembly devoted to disarmament, established by GA Res 57/61 (2002); the Ad Hoc Working Group on the Revitalization of the General Assembly established by GA Res 59/313 (2005). 294

  Committee on Information, established by GA Res 33/115 C (1978); and Council of the United Nations University, established by GA Res 3081 (XXVIII) (1973). 295

  GA Res 174(II) (1947).

296

  Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, established by GA Res 56/168 (2002); Ad Hoc Committee on the Elaboration of a Convention against Corruption, established by GA Res 55/61 (2001); Ad Hoc Committee on the Indian Ocean, established by GA Res 2992 (XXVII) (1972); Ad Hoc Committee on the Scope of Legal Protection under the Convention on the Safety of United Nations and Associated Personnel, established by GA Res 56/89 (2002); Advisory Committee on the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law, established by GA Res 2099 (XX) (1965); Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, established by GA Res 1654 (XVI) (1961); and Ad Hoc Committee established by GA Res 51/210 (1997) (to elaborate a convention on the suppression of terrorist bombing). 297

  For example, the UNHCR.

298

  Governing Council of the United Nations Environment Programme, established by GA Res 2997 (XXVII) (1972). 299

  Committee for the United Nations Population Award, established by GA Res 36/201 (1981).

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300

  United Nations Commission on International Trade Law (UNCITRAL), established by GA Res 2205 (XXI) (1966); and Trade and Development Board, established by GA Res 1995 (XIX) (1964). 301

  Governing Council of the United Nations Human Settlements Programme, UNHABITAT, established by UNGA Res 32/162 (1977) and 56/206 (2002). 302

  GA Res 26 A (I) (1946).

303

  ibid.

304

  GA Res 111 (II) (1947).

305

  GA Res 1 (I) (1946). While established by the General Assembly, it was the Security Council that was to issue directions to the Committee on matters affecting security; in such matters it was to be accountable to the Security Council. 306

  GA Res 502 (VI) (1952). See n 341.

307

  Bowett, ‘The Security Council’ in The United Nations: The First Ten Years (ed Wortley, 1951), 3 at 7–8. 308

  GA Res 111 (II) (1947), para 2. See, generally, Poulantzas, ‘The Interim Committee or “Little Assembly”: A Subsidiary Organ of the General Assembly of the United Nations Organization’ (1993) 71 RDI 251. 309

  GA Res 111 (II) (1947), para 1.

310

  GA Res 196 (III) (1948). At this point it was authorized to request Advisory Opinions from the ICJ. The Committee was established as a Standing Committee, to meet whenever the General Assembly was not actually in regular session, by GA Res 295 (IV) (1949). 311

  Bowett, n 307, 8.

312

  Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (1950), 165. 313

  Ramcharan, Preventive Diplomacy at the UN (2008), 25.

314

  Peterson, n 165, 103.

315

  GA Res 377 (V) (1950).

316

  See ch 26, ‘Keeping the Peace’.

317

  See also Rule 28 of the Security Council Provisional Rules of Procedure, which provides that the Security Council ‘may appoint a commission or committee or a rapporteur for a specified question’. The most current version of the Security Council Rules of Procedure is Security Council, ‘Provisional Rules of Procedure of the Security Council’, UN Doc S/97/Rev. 7 (1983) (hereinafter referred to as ‘SC Rule’ followed by the rule number). 318

  See discussion at section 2.1, ‘General and particular powers’.

319

  Sievers and Daws, The Procedure of the UN Security Council (2014), 461–2. See ch 26, ‘Keeping the Peace’, section 3.2.3.6, ‘Sanctions Committees and related organs’ regarding sanctions committees; see also ch 27, ‘Peacekeeping and Other Peace Operations’. 320

  UN Doc S/2006/507, 19 July 2006, Annex, para 5; see also UN DOC S/2010/507, 26 July 2010, Annex, para 5. 321

  See the consideration by the OLA of the UN on the status of the Special Commission Established by the Secretary-General Pursuant to Paragraph 9(b)(i) of SC Res 687 (1991). The OLA cited the fact that it was the Security Council that was ultimately responsible for the mandate, that the title of the subsidiary organ reflected its link to the Security Council,

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and the fact that the Secretary-General treats these bodies as if they were subsidiary bodies of the Security Council ([1991] UN Juridical YB 295). 322

  UN Doc S/2010/507, 26 July 2010, Annex, para 48.

323

  In the early years of the UN, the Repertory of Practice divided subsidiary organs established by the Security Council into three groups: (a) standing commission or committees, which deal with certain questions of a recurring nature and which meet at the seat of the organization, such as the Committee of Experts and the Committee on the Admission of New Members; (b) commissions or committees, which deal with particular questions in the field, such as the Commission of Investigation concerning Greek Frontier Incidents, the United Nations Commission for Indonesia, etc; and (c) drafting and other ad hoc committees and sub-committees, which deal with a single specific problem and which meet at the place of meeting of the Security Council (UN RP (1945–54) vol II, Art 29, pp 117–22). 324

  The Security Council website refers to Ad Hoc Committees under the heading ‘Subsidiary Organs’ (http://www.un.org/en/sc/about/structure.shtml), as does the Repertoire of Practice of the Security Council. This characterization is not, however, uniform in the documentation of the Security Council. 325

  See at http://www.un.org/en/sc/repertoire/subsidiary_organs/overview.shtml.

326

  See, eg, 2011 UNYB Appendix III.

327

  See n 14.

328

  UN Charter, Art 47(1).

329

  UN Charter, Art 47(2).

330

  UN Charter, Art 47(4).

331

  SC Res 1 (1946).

332

  UN RP (1945–54) vol II, Art 47, p 419.

333

  ibid, p 418.

334

  See Grove, ‘UN Armed Forces and the Military Staff Committee’ (1993) 17 International Security 172, where he observed: ‘The outbreak of the Cold War in 1948 caused the Committee to cease to function as all but the most empty shell.’ 335

  UN Doc A/70/2, 20 October 2015, p 191.

336

  UN RP (1945–54) vol II, Art 47, p 420. The Security Council’s 2015 Annual Report to the General Assembly observed: ‘The Military Staff Committee, established pursuant to Article 47 of the Charter of the United Nations, functioned continually under its revised draft rules of procedure during the period under review. The Committee held a total of 27 meetings. All 27 meetings included the participation of military representatives of the Department of Peacekeeping Operations, and 26 included military representatives of the elected members of the Security Council…. Twenty-two meetings focused specifically on current United Nations peacekeeping missions…. The Committee visited the United Nations Stabilization Mission in Haiti from 29 September to 1 October 2014 and the United Nations Operation in Côte d’Ivoire from 12 to 16 April 2015, to assess the situation in those countries. The Committee remained prepared to carry out the functions assigned to it under the terms of Article 47 of the Charter’ (UN Doc A/70/2, 20 October 2015, p 191). 337

  General Assembly/Security Council, ‘Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security Council on 31 January 1992, An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-Keeping’, UN Doc A/ 47/277, 17 June 1992, para 43. In addition, he observed: ‘I recommend that the Security Council initiate negotiations in accordance with Article 43, supported by the Military Staff

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Committee, which may be augmented if necessary by others in accordance with Article 47, paragraph 2, of the Charter.’ 338

  SC Res 1327 (2000).

339

  GA Res 60/1 (2005), para 178.

340

  UN Doc A/63/2 (2008), p 211.

341

  The Commission for Conventional Armaments, composed of all representatives of the Security Council, was established in 1947 and instructed to prepare and to submit to the Security Council proposals (a) for the general regulation and reduction of armaments and armed forces; and (b) for practical effective safeguards in connection with the general regulation and reduction of armaments. It was dissolved by the Security Council in 1952, as recommended by the General Assembly, which had established a Disarmament Commission ‘under the Security Council’ (GA Res 502 (VI) (1952); (UN RP (1945–54) vol II, Art 29, pp 119–20). 342

  New Zealand Ministry of Foreign Affairs and Trade, United Nations Handbook 2016– 17: An Annual Guide for Those Working with and within the United Nations (2016), 94. 343

  UN RP (1945–54) vol II, Art 29, p 117.

344

  ibid, p 118. For a list of the task assigned to it, see Sievers and Daws, n 319, 479–80.

345

  The Security Council Committee of Experts was asked to study and report on the application of the Republic of Nauru to become a party to the Statute of the ICJ (Sievers and Daws, n 319, 479). 346

  ibid.

347

  ibid, 480. See also Bailey and Daws in the previous edition, noting that on 10 occasions, the chairman of the Committee of Experts was invited to sit at the Security Council table in order to introduce and interpret the Committee’s report. They characterize this as ‘a somewhat curious procedure’, as the membership of the Committee and the Security Council are identical (Bailey and Daws, The Procedure of the UN Security Council (1998), 334). 348

  UN RP (1945–54) vol II, Art 29, p 119.

349

  Sievers and Daws, n 319, 417.

350

  See Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), ICJ Rep 1948, pp 57–66. See ch 8, ‘Membership’, section 2. 351

  Sievers and Daws, n 319, 490. For example, the Committee requested additional information from Nepal (ibid, 491). 352

  ibid, 417.

353

  See UN RP Supp no 1 (1954–55) vol I, Art 4, p 79; UN RP Supp no 2 (1955–59) vol I, Art 4, p 186; UN RP Supp no 3 (1959–66) vol I, Art 4, p 182; UN RP Supp no 4 (1966–69) vol I, Art 4, p 96. 354

  UN RP Supp no 5 (1970–78) vol I, Art 4, p 71.

355

  Sievers and Daws, n 319, 417.

356

  UN RP Supp no 5 (1970–78) vol I, Art 4, p 71.

357

  UNSC RP (1972–74), Art 29, p 52; UNSC RP (1975–80), Art 29, p 70.

358

  UNSC RP (1981–84), Art 29 p 62; UNSC RP (1985–88), Art 29, p 70; UNSC RP (1989– 92), Art 29, p 108.

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359

  UNSC RP (1993–95), Art 29, p 106; UNSC RP (1996–99), Art 29, p 148.

360

  UNSC RP (2000–03), Art 29, p 166; UNSC RP (2004–07), Art 29, p 130.

361

  In a letter dated 9 July 2011 addressed to the Secretary-General, the President of the Republic of South Sudan submitted the application of his country for membership in the UN (UN Doc S/2011/418, 9 July 2011). 362

  In a letter dated 23 September 2011 addressed to the Secretary-General, the President of Palestine submitted the application of his country for membership in the UN (UN Doc S/ 2011/592, 23 September 2011). 363

  See the Provisional Records of the Security Council of 11 July 2011 (pm) (UN Doc S/PV. 6580) regarding South Sudan; and the Provisional Records of the Security Council of 28 September 2011 (am) (UN Doc S/PV.6624) regarding Palestine. 364

  UN Doc S/2011/420, 11 August 2011.

365

  UN Doc S/PRST/2011/14, 13 July 2011. UNSC RP (2010–11), pt IX, Committees, p 627.

366

  UNSC RP (2010–11), pt IX, Committees, p 627. According to the press reports, the Security Council ‘went through the ritual of adopting a confidential report from the admissions committee…that was unable to reach a common position on whether to recognize a Palestinian state in the face of strong US opposition’. The Security Council President is quoted as saying that the Security Council was in no hurry to get to a vote: Chris McGreal, Guardian (12 November 2011), 32. On 29 November 2012, the General Assembly accorded Palestine non-member observer state status in the UN (GA Res 67/19 (2012)). 367

  Sievers and Daws, n 319, 56–57. Art 28(3) of the UN Charter provides that ‘The Security Council may hold meetings at such places other than the seat of the Organization as in its judgment will best facilitate its work.’ 368

  UNSC RP (1972–74), Art 29, pp 56–7.

369

  ‘The Committee reported in favour of the Panamian proposal, and on 26 January the Council unamimously adopted resolution 325 (1973), by which it decided to hold meetings in Panama City’ (Sievers and Daws, n 319, 481). 370

  ibid.

371

  ibid.

372

  The most recent Repertoire of Security Council Practice shows the Committee to have been inactive at least until 2007, the year covered by its most recent volume at the time of writing (UNSC RP (1975–80), Art 29 et seq). According to Sievers and Daws, it remained inactive at the time of the writing of their 4th edn in 2014 (Sievers and Daws, n 319, 481). 373

  UNSC RP (1969–71), Art 29, pp 63–4.

374

  Schermers and Blokker, International Institutional Law: Unity Within Diversity (2011), 65. 375

  UNSC RP (1969–71), Art 29, p 64.

376

  According to Schermers and Blokker, ‘two substantive proposals were discussed [while the Committee was functioning]: an American proposal for the establishment of a category of associate membership, and a British proposal for the voluntary renunciation of certain rights and obligations upon admission as a full member. Both proposals lacked sufficient support in the Committee’ (Schermers and Blokker, n 374).

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377

  Sievers and Daws suggest that ‘the mandate of the Committee is considered to have lapsed’ (Sievers and Daws, n 319, 492). According to Gunter, ‘the issue, if not the problem, is dead’ (Gunter, ‘What Happened to the United Nations Ministate Problem?’ (1977) 71 AJIL 110, 123). See also Schwebel, Justice in International Law: Selected Writings of Judge Stephen M Schwebel (1994), ch 19. 378

  The year in which the Committee was established follows in parenthesis.

379

  See the Repertoire of the Practice of the Security Council, available at http:// www.un.org/en/sc/repertoire/subsidiary_organs/ committees_standing_and_adhoc.shtml#main3. 380

  ibid.

381

  The Committee was established in May 2006 to conduct the review of Security Council mandates called for by the Heads of State and Government in the 2005 World Summit Outcome (GA Res 60/1 (2005)), and to continue consideration of the recommendations contained in the Secretary-General’s report of 30 March 2006 entitled ‘Mandating and delivering’ (UN Doc A/60/733, 30 March 2006). For a discussion of the work of the Committee in 2007/8, see UN Doc A/63/2 (2008), pp 243–4. In December 2007, following discussions in the Committee and agreement among Security Council members, it was agreed that the Committee had reached the main goals for which it had been established and could therefore conclude its work (ibid). 382

  The existing or former Commissions and Investigative Bodies of the Security Council, according to the Repertoire of the Practice of the Security Council (see at http:// www.un.org/en/sc/repertoire/subsidiary_organs/commissions_and_investigations.shtml) include the following: the Truce Commission for Palestine (1946); the Commission of Investigation concerning Greek frontier incidents (1946); the Subsidiary Group of the Commission of Investigation concerning Greek frontier incidents (1946); the Consular Commission at Batavia (now Jakarta) (1947) (to report on the situation in the Republic of Indonesia and observe the ceasefire between armed forces of the Netherlands and Indonesia); the Commission for Conventional Armaments (1947); the United Nations Commission for India and Pakistan (to investigate the facts on the ground regarding the outbreak of hostilities in Jammu and Kashmir and assist in mediatory functions as appropriate) (1948); the United Nations Commission for Indonesia (to assist the parties to achieve a just and lasting settlement of the dispute between The Netherlands and Indonesia, which was seeking independence) (1949); the Commission established under Resolution 446 (1979) on the situation in the Occupied Arab territories (1979); the Commission of Inquiry under Resolution 496 (1981) in connection with the Republic of the Seychelles (1981) (to investigate the origin, background and financing of the mercenary aggression of 25 November 1981 and to assess and evaluate economic damages); the United Nations inspection teams in Islamic Republic of Iran and Iraq under the letter from the Secretary-General dated 14 June 1984 and letter from the President of the Council dated 15 June 1984 (to verify compliance with the undertakings given by Iraq and Iran to restrict targeting civilian areas and to inspect specific allegations of any violation) (1984); the Commission of Investigation established in pursuance of Resolution 571 (1985) (regarding the invasion of Angola by South African forces) (1985); the International Support and Verification Commission (co-established with the Organization of American States to implement the Joint Plan for the voluntary demobilization, repatriation or relocation of the members of the Nicaraguan resistance and their families, as well as assistance for the demobilization of all those involved in armed actions in the countries of the region) (1989); the United Nations Compensation Commission established pursuant to Resolutions 687 (1991) and 692 (1991) (to administer a fund to compensate for any direct loss, damage, or injury to foreign Governments, nationals and corporations, following the Iraqi invasion and occupation of Kuwait) (1991); the United Nations Iraq–Kuwait Boundary Demarcation

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Commission established pursuant to Resolution 687 (1991) (to demarcate in geographic coordinates the international boundary set out in the Agreed Minutes of 4 October 1963 and to make arrangements for the physical representation of the boundary, through the erection of boundary pillars or monuments) (1991); the United Nations Special Commission (UNSCOM) established pursuant to Resolution 687 (1991) (to implement the non-nuclearrelated provisions of Resolution 687 (1991), to conduct inspections on Iraq’s biological and chemical capacities, to secure possession of chemical and biological weapons, to destroy such weapons, and to assist the International Atomic Energy Agency (IAEA)) (1991); the Ad Hoc Commission of the Security Council established pursuant to Resolution 794 (1992) concerning Somalia (to report to the Security Council on the implementation of the resolution, which authorized an enforcement operation by a group of member states to establish a secure environment for humanitarian relief operations in Somalia) (1992); the Commission of Experts established pursuant to Resolution 780 (1992) to examine reported violations of international humanitarian law in the former Yugoslavia (1992); the Commission of Inquiry established pursuant to Resolution 885 (1993) concerning Somalia (to investigate the armed attacks on the personnel of the United Nations Operation in Somalia (UNOSOM II) on 5 June 1993) (1993); the Commission of Experts established pursuant to Resolution 935 (1994) concerning Rwanda (to examine and analyse information derived from investigations, with a view to providing the Secretary-General with its conclusions on the evidence of grave violations of international humanitarian law committed in the territory of Rwanda, including the evidence of possible acts of genocide) (1994); the International Commission of Inquiry established under Resolution 1012 (1995) concerning Burundi (to establish the facts relating to the assassination of the President of Burundi on 21 October 1993) (1995); the International Commission of Inquiry established under Resolution 1013 (1995) concerning Rwanda (to investigate reports relating to the sale or supply of arms and related material to former Rwandese Government Forces in the Great Lakes region in violation of Council resolutions, and to recommend measures to end the illegal flow of arms in the region) (1995); the United Nations Monitoring, Verification and Inspection Commission established pursuant to paragraph 1 of Resolution 1284 (1999) (to replace UNSCOM in verifying compliance by Iraq with its disarmament obligations imposed after the Gulf War) (1999); the International Commission of Inquiry for Darfur (to investigate reports of violations of international humanitarian and human rights law in Darfur by all parties, to determine whether or not acts of genocide had occurred, and to identify the perpetrators of such violations with a view to ensuring that those responsible were held accountable) (2004); the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999 (2005); the International Independent Investigation Commission (IIIC) (2005) (to assist the Lebanese authorities in their investigation of all aspects of the assassination of the former Prime Minister of Lebanon, Rafiq Hariri, along with 22 others in Beirut on 14 February 2005); and the Commission of Inquiry into the Benazir Bhutto assassination (2009). 383

  This Working Group of the Whole was established in 2001 to ‘address both generic peacekeeping issues relevant to the responsibilities of the Council and technical aspects of individual peacekeeping operations without prejudice to the competence of the Special Committee on Peacekeeping Operations. Where appropriate, the Working Group will seek the views of the troop-contributing countries, including through meetings between the Working Group and the troop-contributing countries, with a view to their views being taken into account by the Council’ (UN Doc S/PRST/2001/3, 31 January 2001). For a discussion of the work of the Working Group in 2014/15, see UN Doc A/70/2, 20 October 2015, pp 227– 30.

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384

  The decision to establish this Working Group was set out in the Security Council’s presidential statement of 31 January 2002, in which the Security Council, inter alia, recognized the need for adequate measures to prevent and resolve conflicts in Africa, and indicated its intention to consider the setting up of an ad hoc Working Group to monitor the recommendations contained in its presidential statement and to enhance coordination with ECOSOC (UN Doc S/PRST/2002/2, 31 January 2002). The terms of reference for the Working Group were subsequently set out in a note by the President of the Security Council (UN Doc S/2002/207, 1 March 2002). For a discussion of the work of the Working Group in 2014/15, see UN Doc A/70/2, 20 October 2015, pp 230–3. 385

  In 2005 the Security Council established this Working Group, consisting of all members of the Security Council, and mandated it to review the reports of the new monitoring and reporting mechanism (established in para 3 of the Resolution), to review the progress in the development and implementation of action plans (mentioned in para 7 of the Resolution), and to consider other relevant information presented to it. In addition, it decided that the Working Group would (a) make recommendations to the Council on possible measures to promote the protection of children affected by armed conflict, including through recommendations on appropriate mandates for peacekeeping missions and recommendations with respect to the parties to the conflict; and (b) address requests, as appropriate, to other bodies within the UN system for action to support implementation of this resolution in accordance with their respective mandates (SC Res 1612 (2005), para 8). For a discussion of the work of the Working Group in 2014/15, see UN Doc A/70/2, 20 October 2015, p 233. This features both formal/plenary meetings and informal consulations/ meetings (see UN Doc A/70/2, 20 October 2015, p 264). 386

  See at http://www.un.org/sc/wgdocs/. The Working Group was established in June 1993 to enhance and streamline ways and means by which the Security Council addresses issues related to its documentation and other procedural questions. The Working Group makes recommendations, proposals, and suggestions to the members of the Security Council concerning the Security Council’s documentation and other procedural questions. The Working Group has concentrated, inter alia, on the implementation of existing measures agreed by the members of the Security Council in the area of documentation and other procedural questions, in particular those contained in UN Doc S/2006/507, 19 July 2006, as updated and superseded by UN Doc S/2010/507, 26 July 2010, and built upon and complemented by UN Doc S/2013/515, 28 August 2013. The Working Group has also focused on interaction and dialogue between the Security Council and other relevant UN bodies, the UN Secretariat and other UN member states. In addition, the Working Group has been seized with a range of other practical questions pertaining to documentation and procedures of the Security Council. For a discussion of the work of the Working Group in 2014/15, see UN Doc A/70/2, 20 October, 2015, p 234. See also Bühler, ‘Article 28’ in Simma et al (eds), n 5, 939 at 963, paras 62–4. 387

  Established in 2000 to deal with issues pertaining to the Statute of the ICTY and, later, to include issues relating to the ICTR. The Working Group consists of the legal advisers of the missions of the members of the Security Council and is assisted by the OLA and the Security Council Affairs Division of the Department of Political Affairs (DPA) (UN Doc A/ 70/2, 20 October 2015, pp 234–5). 388

  SC Res 1170 (1998).

389

  It is no longer listed by the Security Council in its Annual Report to the General Assembly (see UN Doc A/70/2, 20 October 2015).

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390

  It is no longer listed by the Security Council in its Annual Report to the General Assembly (see UN Doc A/70/2, 20 October 2015). 391

  SC Res 1732 (2006).

392

  See the Repertoire of the Practice of the Security Council for a discussion of those sanctions committees that are no longer in existence: available at http://www.un.org/en/sc/ repertoire/subsidiary_organs/sanctions_and_other_committees.shtml. 393

  Security Council Committee established pursuant to SC Res 751 (1992) and Res 1907 (2009). 394

  Security Council Committee established pursuant to SC Res 1518 (2003).

395

  Security Council Committee established pursuant to SC Res 2140 (2014).

396

  Security Council Committee established pursuant to SC Res 1533 (2004).

397

  Security Council Committee established pursuant to SC Res 2127 (2013).

398

  Security Council Committee established pursuant to SC Res 1591 (2005).

399

  Security Council Committee established pursuant to SC Res 1718 (2006).

400

  Security Council Committee established pursuant to SC Res 2206 (2015).

401

  Security Council Committee established pursuant to SC Res 1970 (2011).

402

  Security Council Committee established pursuant to SC Res 2048 (2012).

403

  Security Council Committee established pursuant to SC Res 1298 (2000) (terminated with UN Doc S/PRST/2001/14, 15 May 2001). 404

  Security Council Committee established pursuant to SC Res 1572 (2004) (terminated pursuant to SC Res 2283 (2016)). 405

  Security Council Committee established pursuant to SC Res 1737 (2006) (terminated pursuant to SC Res 2231 (2015)). 406

  Security Council Committee established pursuant to SC Res 1160 (1998) (terminated pursuant to SC Res 1367 (2001)). 407

  Security Council Committee established pursuant to SC Res 1132 (1997) (terminated pursuant to SC Res 1940 (2010)). 408

  Security Council Committee established pursuant to SC Res 985 (1995) (terminated pursuant to SC Res 1343 (2001)), Security Council Committee established pursuant to SC Res 1343 (2001) (terminated pursuant to SC Res 1521 (2003)), and Security Council Committee established pursuant to SC Res 1521 (2003) (terminated pursuant to SC Res 2286 (2016)). 409

  Security Council Committee established pursuant to SC Res 918 (1994) (terminated pursuant to SC Res 1823 (2008)). 410

  Security Council Committee established pursuant to SC Res 841 (1993) (terminated pursuant to SC Res 944 (1994)). 411

  Security Council Committee established pursuant to SC Res 748 (1992) (terminated pursuant to SC Res 1506 (2003)). 412

  Security Council Committee established pursuant to SC Res 724 (1991) (terminated pursuant to SC Res 1074 (1996)). 413

  Security Council Committee established by SC Res 661 (1990) (terminated pursuant to SC Res 1483 (2003)).

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414

  Security Council Committee established by SC Res 421 (1977) (terminated pursuant to SC Res 919 (1994)). 415

  Security Council Committee established pursuant to SC Res 253 (1968) (terminated pursuant to SC Res 460 (1979)). 416

  Security Council Committee established pursuant to SC Res 1267 (1999) and 1989 (2011) concerning Al-Qaida and associated individuals, groups and entities. The office of the Ombudsperson was established pursuant to SC Res 1904 (2009) to provide fairness and transparency in the delisting procedure. 417

  Security Council Committee established pursuant to SC Res 1988 (2011).

418

  Security Council Committee established pursuant to SC Res 1636 (2005). The Committee is mandated to register as subject to the travel ban and assets freeze imposed by para 3 (a) of SC Res 1636 (2005), individuals designated by the international independent investigation Commission or the Government of Lebanon as suspected of involvement in the 14 February 2005 terrorist bombing in Beirut, Lebanon, that killed former Lebanese Prime Minister Rafiq Hariri and 22 others. 419

  Security Council Committee established pursuant to SC Res 864 (1993) concerning the situation in Angola (Monitoring Mechanism on Sanctions against UNITA) (terminated pursuant to SC Res 1448 (2002)). 420

  See, eg, UN Doc S/2017/2/Rev.1, 9 January 2017. Note that the Sanctions Commission established pursuant to SC Res 1518 (2003) (Iraq) had just one Vice-Chair in 2009. 421

  In 1998, the Security Council provided that it would include the annual reports of the Sanctions Committees as an appendix to its annual reports to the General Assembly. With effect from 1999, it agreed that a bureau was to be appointed by each Sanctions Committee, following consultation between Security Council members, either at the first meeting, if that meeting takes place in January, or in writing at the instance of the Presidency of the Security Council under a no-objection procedure (UN Doc S/1998/1016, 30 October 1998). 422

  This Committee was established by the Security Council to monitor the implementation of SC Res 1373 (2001), which decided that states shall implement a wide range of counterterrorism measures following the terrorist attacks of 11 September 2001 in the US. The Council also established, by SC Res 1535 (2004), a Counter-Terrorism Committee Executive Directorate (CTED) to carry out the policy decisions of the CTC, conduct expert assessments of each member state, and facilitate counter-terrorism technical assistance to countries (see the Repertoire of Practice of the Security Council, available at http:// www.un.org/en/sc/repertoire/subsidiary_organs/ sanctions_and_other_committees.shtml#main2). 423

  This Committee was established by the Security Council to monitor the implementation of SC Res 1540 (2004), which requires states to establish domestic controls to prevent the proliferation of nuclear, chemical, and biological weapons, and their means of delivery, including by establishing appropriate controls over related materials. In 2011, the Security Council extended the mandate of the Committee for a period of 10 years and charged it with two comprehensive reviews, one due in 2016 and one in 2021 (see the Repertoire of Practice of the Security Council, available at http://www.un.org/en/sc/repertoire/ subsidiary_organs/sanctions_and_other_committees.shtml#main2). 424

  See further ch 27, ‘Peacekeeping and Other Peace Operations’.

425

  See ch 27, ‘Peacekeeping’ for a listing of the 50 peacekeeping operations that have been terminated.

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426

  See the Repertory of Practice of the Security Council, available at http://www.un.org/ en/sc/repertoire/subsidiary_organs/peace_commission.shtml. 427

  See at http://www.un.org/en/sc/about/structure.shtml.

428

  See the Repertoire of Practice of the Security Council at http://www.un.org/en/sc/ repertoire/subsidiary_organs/special_political_complete.shtml. These operations are classified as being subsidiary to the Security Council under the United Nations Yearbook, see, eg (2012 UNYB 1527–8). 429

  There are, however, occasional exceptions. For example, the United Nations Assistance Mission in Afghanistan (UNAMA), despite being characterized by the UN as a ‘special political mission’ rather than a ‘peacekeeping’ mission, is managed by the DPKO. 430

  See DPA website at http://www.un.org/undpa/en/in-the-field/overview.

431

  ibid.

432

  ‘Political missions are part of a continuum of UN peace operations working in different stages of the conflict cycle. In some instances, following the signing of peace agreements, political missions overseen by the Department of Political Affairs during the stage of peace negotiations have been replaced by peacekeeping missions. In other instances, UN peacekeeping operations have given way to special political missions overseeing longer term peace-building activities’ (ibid). 433

  For a listing of Political Missions and Offices, past and present, see the Repertoire of Practice of the Security Council at http://www.un.org/en/sc/repertoire/subsidiary_organs/ special_political_complete.shtml. 434

  Repertoire of the Practice of the Security Council, available at http://www.un.org/en/sc/ repertoire/subsidiary_organs/groups_and_panels.shtml. 435

  International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. 436

  International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994. 437

  SC Res 808 (1993).

438

  SC Res 955 (1994).

439

  On the legality of the establishment of the ICTY, see Sarooshi, n 11, 95–8.

440

  SC Res 1966 (2010).

441

  See ch 31, ‘Criminal Tribunals Established by, or in Relationship with, the UN’.

442

  For a brief summary of each mission, see at http://www.un.org/en/sc/repertoire/ subsidiary_organs/missions.shtml. 443

  SC Res 189 (1964).

444

  SC Res 289 (1970).

445

  SC Res 294 (1971).

446

  SC Res 298 (1971).

447

  SC Res 309 (1972).

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448

  SC Res 326 (1973).

449

  SC Res 377 (1975).

450

  SC Res 404 (1977).

451

  SC Res 403 (1977).

452

  SC Res 527 (1982).

453

  SC Res 568 (1985).

454

  SC Res 620 (1988).

455

  Between 1988 and 2007, the Repertoire has generally not included coverage of Representatives and Special Representatives of the Secretary-General or his Good Offices. For a brief summary of each mission, see at http://www.un.org/en/sc/repertoire/ subsidiary_organs/representatives.shtml. 456

  SC Res 80 (1950).

457

  SC Res 186 (1964).

458

  SC Res 203 (1965).

459

  SC Res 215 (1965).

460

  SC Res 242 (1967).

461

  SC Res 307 (1971).

462

  SC Res 319 (1972).

463

  SC Res 384 (1975).

464

  SC Res 415 (1977).

465

  SC Res 431 (1978).

466

  SC Res 457 (1979).

467

  UN Doc S/22464, 19 April 1991 and SC Res 690 (1991).

468

  SC Res 686 (1991) and SC Res 687 (1991).

469

  UN Charter, Art 68.

470

  See discussion at section 2.2, ‘Limitation on powers of establishment’.

471

  Giacca and Riedel, n 21, 1736, at 1740, para 7.

472

  This may be contrasted to the General Assembly’s specific power under Art 22 of the UN Charter and the Security Council’s specific power under Art 29 of the Charter, each of which uses the term ‘subsidiary organs’. 473

  How the subsidiary organ is styled, ie whether it is a ‘commission’, a ‘committee’, or a ‘sessional body’, may, however, be relevant to the application of the ECOSOC Rules of Procedure. See, eg, ECOSOC Rules 25–7. 474

  UN Charter, Art 60.

475

  Conforti and Focarelli, n 6, 140–1.

476

  Giacca and Riedel, n 21, 1742, para 11. They note that the initiative to create the regional commissions, discussed in section 11.2.3, ‘Regional commissions’, originated in the General Assembly (ibid, 1743, para 22).

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477

  A legal issue arose over whether the Committee on Crime Prevention and Control was a subsidiary organ of ECOSOC. In 1950, the General Assembly established a seven-member Ad hoc Advisory Committee of Experts on the Prevention of Crime and the Treatment of Offenders, charged with advising the Secretary-General and the Social Commission of ECOSOC (GA Res 415 (V) (1950)). In 1965, ECOSOC approved a proposal, endorsed by the Social Commission, to increase the membership of the Ad hoc Advisory Committee to 10, to make it available on a continuing basis, and to require it to report to the Social Commission (ECOSOC Res 1086 B (XXXIX) (1965)). In 1971, ECOSOC, on the recommendation of the Commission for Social Development, decided to enlarge the Advisory Committee’s membership from 10 to 15, decided that the members of the Advisory Committee would be appointed by ECOSOC on the recommendation of the Secretary-General, renamed it the Ad hoc Committee on Crime Prevention and Control, and decided that it should report to the Commission for Social Development and, as appropriate on particular aspects, to the Commission on Human Rights and the Commission on Narcotic Drugs (ECOSOC Res 1584 (L) (1971)). The OLA held that it was clear that with the changes in 1971, the Committee possessed the characteristics of a subsidiary organ of ECOSOC, given that this organ had ‘determined its size, appointed its members and instructed it to report to certain subsidiary organs of the Council’. The OLA was not able, however, to say whether the Committee had earlier become a subsidiary organ of ECOSOC as a result of changes in 1965 ([1971] UN Juridical YB 206).A similar issue arose as to whether the UNDP and UNICEF Executive Boards were subsidiary organs of ECOSOC or the General Assembly. On the one hand, the OLA considered that UNDP and UNICEF had been established by the General Assembly; on the other, it noted that the role of ECOSOC had increased in terms of providing policy guidance and structure. It offered a somewhat tentative legal view: ‘In spite of the changes which have resulted from the restructuring of the economic and social sector and the direct supervision of the work of the Board by the Council, it seems that in law, both UNICEF and UNDP remain subsidiary organs of the General Assembly, and not of the Economic and Social Council, under Articles 7 and 22 of the Charter of the United Nations’ ([1994] UN Juridical YB 490). 478

  For a discussion of the ability of ECOSOC commissions, which are governed by their own, separate Rules of Procedure, to establish ‘sub’-subsidiary organs, see n 484. 479

  Giacca and Riedel, n 21, 1745, para 29. They observed that Rule 24(2) does reflect ‘the practice of granting almost complete freedom to the regional commissions with regard to the creation of their own subsidiary organs’ (ibid). 480

  UN RP (1945–54) vol III, Art 68, p 502.

481

  Jaenicke, n 19, 219, para 7.

482

  ibid. He adds: ‘This reasoning, however, does not apply to committees created for the performance of specific tasks for an indefinite period of time beyond the duration of a session, and in particular to the so-called ‘standing’ committees’ (ibid).At the 13th session of ECOSOC, a proposal to limit the discussion in plenary of an item already discussed by a committee of the whole was made on the basis that a committee of the whole was a part of the principal organ rather than a subsidiary organ. Those in opposition stated that committees of the whole were subsidiary bodies. The proposals were rejected (UN RP (1945–54) vol I, Art 7, pp 225–6). 483

  ECOSOC Rule 24(1). Until the 1994 substantive session, ECOSOC worked through three Sessional Committees, each of which had plenary membership: the First (Economic) Committee; the Second (Social) Committee; and the Third (Programme and Co-ordination Committee). ‘Starting from the 1994 substantive session, the work of the sessional committees was subsumed into the plenary of the Council in pursuance of a directive in

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paragraph 17 of annex I to General Assembly resolution 48/162 of 20 December 1993’ (UN RP (1995–99) vol IV, Art 69, p 2). 484

  Only a regional commission is permitted to create subsidiary bodies without ECOSOC’s prior approval (ECOSOC Rule 24(2)), and to elect the members of its own subsidiary organs independently of ECOSOC (ECOSOC Rule 25). Sessional committees of the whole have rules regarding the selection of their officers that do not apply to other bodies and organs (ECOSOC Rule 26(2)). The difference in treatment by the Rules of commissions and committees is relatively slight compared to an earlier, provisional set of rules of procedure, which was abandoned (Giacca and Riedel, n 21, 1761, para 72). 485

  ibid. Giacca and Riedel note that ‘no substantial differences between functional commissions and standing committees result from the rules’, making it ‘possible to give some organs which were considered to be standing committees, the status of commissions’. For example, the former Committee on Housing, Building, and Planning was transformed into the Commission on Human Settlements without formally being labelled a functional commission (Giacca and Riedel, n 21, 1762, para 77). 486

  The primary source used for identifying the subsidiary organs in this part is the ECOSOC website at http://www.un.org/en/ecosoc/about/subsidiary.shtml. It may be noted, however, that UN documents differ in terms of the entities they list as subsidiary organs. So, eg, the list of ‘Subsidiary and other related organs’ in the 2012 Yearbook of the United Nations—the most current version at the time of writing—does not correspond exactly with the ECOSOC website (2012 UNYB Appendix III). 487

  Giacca and Riedel, n 21, 1762, para 78.

488

  The Preparatory Commission of the United Nations recommended the immediate creation of commissions in human rights, economic, and employment matters, and in statistics, narcotic drugs, and social matters (UN RP (1945–54) vol III, Art 68, p 476). 489

  ECOSOC Res 9 (1) (1946). Its mandate was enlarged by ECOSOC in its Res 1991/38 (1991) and by the General Assembly in GA Res 46/185 C (1991), s XVI, to include a role as the governing body of the Fund of the UNDCP. 490

  ECOSOC Res 8 (I) (1946).

491

  Originally established as the Social Commission by ECOSOC Res 10 (II) (1946). Renamed by ECOSOC Res 1139 (XLI) (1966). 492

  ECOSOC Res 3 (III) 1946. Renamed the Commission on Population and Development by the General Assembly in 1994 (GA Res 49/128 (1994)). 493

  ECOSOC Res 11 (II) (1946).

494

  ECOSOC Res 1992/218 (1992) in accordance with GA Res 46/235 (1992).

495

  ECOSOC Res 1992/1 (1992). The Committee on Crime Prevention and Control was dissolved pursuant to GA Res 46/152 (1992). 496

  ECOSOC Res 2000/35 (2000).

497

  The CHR was established by ECOSOC Res 5 (I) (1946). On 27 March 2006, the CHR concluded its 62nd and final session. Following the decision of the General Assembly to establish the HRC (GA Res 60/251 (2006)), ECOSOC decided to abolish the CHR effective 16 June 2006 (ECOSOC Res 2006/2 (2006)). At its last session, the CHR decided to conclude its work and referred all matters to the HRC (UN Doc E/CN.4/2006/122, CHR Res 2006/1). For a discussion of the UN’s human rights functions—including the past work of the CHR

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and the current work of the HRC—see ch 22, ‘Promotion and Protection of Human Rights’, section 3, ‘The Human Rights Council’. 498

  The CSD, established by ECOSOC Res 1993/207 (1993) in accordance with GA Res 47/191 (1991), was replaced by the High-Level Political Forum on Sustainable Development (HLPF) in 2013 (GA Res 67/290 (2013)). The General Assembly endorsed the outcome document of the United Nations Conference on Sustainable Development, entitled ‘The future we want’ (GA Res 66/288 (2012)). The outcome document, at para 84, called for the establishment of a new forum to replace the CSD.Other discontinued functional commissions include the Economic and Employment Commission (later called the Economic, Employment and Development Commission) and the Fiscal Commission (UN RP (1945–54) vol III, Art 68, p 477). 499

  The Rules of Procedure of the Functional Commissions of the Economic and Social Council were initially adopted by ECOSOC Res 100 (V) (1947). They were revised after a comprehensive review in 1950 (ECOSOC Res 289 (X) (1950)) and have subsequently been amended a number of times. They may be found at http://unstats.un.org/unsd/statcom/ doc07/ECOSOC-Rules.pdf. 500

  Rules of Procedure of the Functional Commissions, Rule 77.

501

  Section V of the Rules of Procedure of Functional Commissions of the Economic and Social Council is entitled ‘Subsidiary Organs’. Rule 21(1) of the Rules of Procedure of the Functional Commissions provides that during a session, functional commissions, ‘in consultation with the General Assembly, may set up such commissions or working groups composed of members of the commission as deemed necessary and refer them any questions on the agenda for study and report’. For functional commissions to authorize such committees or working groups to sit while the functional commission is not in session, the prior approval of ECOSOC and the agreement of the Secretary-General is required (Rule 21(2)). The functional commissions may only set up such sub-commissions as may be authorized by ECOSOC, and, unless otherwise determined, ECOSOC shall determine the functions and composition of each sub-commission (Rule 22). For example, in 1947, ECOSOC formed the Subcommission on the Prevention of Discrimination and the Protection of Minorities (re-named the Subcommission on the Promotion and Protection of Human Rights in 1999) as a subsidiary organ of the CHR. It ceased to function in 2006 with the termination of the CHR, see ch 22, ‘Promotion and Protection of Human Rights’, section 3, ‘The Human Rights Council’. Similarly, in 1973, the Subcommission on Illicit Drug Traffic and Related Matters in the Near and Middle East was established as a subsidiary body of the Commission on Narcotic Drugs (ECOSOC Res 1776 (LVI) (1973) and CND Res 6 (XXV) (1973) of the CND. 502

  Rules of Procedure of the Functional Commissions, Rule 70.

503

  UN RP (1945–54) vol III, Art 68, p 494.

504

  Enlarged from 40 to 53 members by ECOSOC Res 1991/49 (1991).

505

  For example, the CND requires membership be distributed as follows: (a) 11 for African states; (b) 11 for Asian states; (c) 10 for Latin American and Caribbean states; (d) 6 for Eastern European states; (e) 14 for Western European and other states; (f) one seat to rotate between the Asian, and the Latin American and Caribbean states every four years (ECOSOC Res 1991/49 (1991)). 506

  Rosenthal, ‘The Economic and Social Council of the United Nations: An Issues Paper’ (2005), available at http://library.fes.de/pdf-files/iez/global/50091.pdf. 507

  ECOSOC Res 36 (IV) (1947).

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508

  Established in 1947 as the Economic Commission for Asia and the Far East (ECAFE) (ECOSOC Res 37 (IV) (1947)), it was given its current name in 1974 (ECOSOC Res 1895 (LVII) (1974)). 509

  ECOSOC Res 106 (VI) (1948) as the Economic Commission for Latin America (ECLA). In 1984 its name was changed to reflect its geographic coverage. 510

  ECOSOC Res 671 A (XXV) (1958).

511

  Established in 1973 as the Economic Commission for Western Asia (ECWA) (ECOSOC Res 1818 (LV) (1973), it was given its current name in 1985 (ECOSOC Res 1985/69 (1985). 512

  UN RP (1945–54) vol III, Art 68, p 482; Forteau, ‘United Nations, Regional Commissions’ in MPEPIL (July 2007), para 4. 513

  In 1951, ECOSOC approved the following recommendation of an ad hoc committee it had established to undertake a comprehensive review of the organization and operation of ECOSOC and its commissions: ‘The ad hoc Committee is of the opinion that consideration of the organization and functions of regional subsidiary organs of the Council requires that somewhat different criteria be applied than in the case of the “functional” commissions. By their nature and constitution, regional subsidiary organs are primarily concerned with problems affecting the region which they cover and tend to reflect the preoccupations of the countries in that region. It is therefore necessary to assess their usefulness not only from the point of view of the United Nations as a whole but also from the point of view of the Governments in the region from which their membership is drawn’ (ECOSOC Res 414 (XIII) (1951) ((1971) UN Juridical YB 210)). 514

  Giacca and Riedel, n 21, 1762, para 75.

515

  Forteau, n 512, para 14.

516

  ECOSOC Rule 24(2).

517

  ECOSOC Rule 25. However, see n 536.

518

  Forteau, n 512, para 14.

519

  The ECE has 56 members; ESCAP has 53 full members and 9 associate members; ECLAC has 44 members and 13 associate members; and the ECA has 54 members. 520

  For example, based on para 3 of the ECOSOC resolution setting out the terms of reference of the Economic Commission for Asia and the Far East, once a state within its geographical scope expresses its desire to become a member, ‘the Commission is dutybound to admit it to membership’. The obligation and authority of the Commission to do so was confirmed by ECOSOC in Res 144 B (VII), in which ECOSOC noted ‘that the Economic Commission for Asia and the Far East already has authority to deal with applications for membership from areas within its geographical scope’ ([1971] UN Juridical YB 211–12). 521

  The OLA considered the question of whether a member state of the UN that was not within the geographical scope of the Economic Commission for Asia and the Far East, established by ECOSOC (ECOSOC Res 37 (IV) (1947)), could become a member. The OLA held that a provision in the Commission’s terms of reference that authorized the automatic admission of any UN member state in the area did not, of itself, imply that a UN member state not in the area may not be admitted to membership. It held that ‘since ECAFE [as it was then known] is a subsidiary organ established by the Economic and Social Council, the question of its membership, except for the automatic admission in accordance with paragraph 3 of its terms of reference, is one for the Council to decide’ ([1971] UN Juridical YB 211).

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522

  [1977] UN Juridical YB 218.

523

  ‘At the thirteenth session of the Council in September 1951, an opinion of the Legal Department of the United Nations was read which emphasized that neither Article 68 nor any other provision of the Charter imposed any conditions on the composition of regional commissions’, and, based on the history of the provision, concluded that ECOSOC could ‘accord non-member states the right to vote in the ECE’ (ibid). For example, Switzerland was granted full membership in the ECE as a non-member of the UN. This was an exception to ECOSOC’s usual practice of granting full membership only to UN member states (ibid). 524

  Giacca and Riedel, n 21, 1744, para 23. They note that ESCAP and ECLAC allow for full membership for states administering non-self-governing territories, and ECA allows for associate membership (ibid). As noted by Schwebel, n 377, 334: ‘The fact that subsidiary organs of the United Nations, such as the Regional Economic Commissions, have been able to embrace a category of associate, non-voting membership without Charter provision or amendment to that effect may be viewed as a precedent capable of wider application to membership in the United Nations itself.’ 525

  In 1977, ECWA—as it was then known—adopted a resolution calling upon ECOSOC to amend the terms of reference of ECWA so as to make the PLO a member of ECWA. A Legal Opinion noted that Art 68 did not ‘explicitly specify that the membership of commissions established pursuant to it should be restricted to Members of the United Nations, or to States, or even to entities having international personality’. It also noted that the original draft of the UN Charter prepared at Dumbarton Oaks foresaw that commissions established by the ECOSOC would consist of individual experts. However, despite the Legal Opinion’s finding that there was no legal impediment to ECOSOC’s granting membership to the PLO in ECWA, it took the view that it ‘would appear more consistent with constitutional practice for the Council to create a special category of membership in ECWA to accommodate the PLO’ ([1977] UN Juridical YB 219). 526

  On 28 April 1977, ECWA adopted a resolution recommending that ECOSOC approve the admission of Egypt as a member of ECWA, despite Egypt already being a member of ECA. The OLA noted: ‘While this would not be unprecedented (eg, the United States is a member of ECE, ECLA—as it was then known—and ESCAP; Canada is a member of ECE and ECLA; the United Kingdom is a member of ECE and of ESCAP, and originally was also a member of ECA), it should be noted that this would be the first instance in which a potential recipient of assistance from regional commissions would be enabled to receive assistance from more than one.’ It found that there ‘would thus seem to be no legal obstacle to the admission of Egypt as a full member of ECWA, in particular if it is understood that such admission is in the capacity of a non-regional member not entitled to assistance from the Commission (except, perhaps, in respect of the Sinai), or alternatively if the extent of the extension of the geographical scope of the Commission is adequately defined and appropriate provisions are made to prevent the possible duplication of eligibility for assistance’ (ibid, 220). 527

  ECOSOC Res 3 (II) (1946).

528

  Established by ECOSOC Res 920 (XXXIV) (1962) as the ‘Special Committee on Coordination’ and renamed in 1966 (ECOSOC Res 1171 (XLI) (1966)). 529

  ECOSOC Res 11 (I) (1946).

530

  Giacca and Riedel, n 21, 1745, para 26. These included (i) the Committee on Housing, Building, and Planning (founded in 1962, transformed into the Commission on Human Settlements in 1977 and transformed into the United Nations Human Settlements Programme (UN-HABITAT) in 2002); (ii) the Committee on Natural Resources (merged into the Committee on Energy and Natural Resources for Development in 1998, whose work was transferred in 2002 to the Commission on Sustainable Development); and (iii) the

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Commission on Transnational Corporations (integrated into the institutional machinery of UNCTAD as a commission of the Trade and Development Board). 531

  The CPC’s predecessor was established in 1962 with 11 members. See ECOSOC Res 920 (XXXIV) (1962). 532

  As noted by Giacca and Riedel, the Commission on Human Settlement, established by the General Assembly in 1977 (GA Res 32/162 (1977)), as a transformed version of the Committee on Housing, Building, and Planning, founded by ECOSOC in 1962 (ECOSOC Res 920 (XXIV) (1962)), consisted of 58 members—thereby eclipsing the membership of ECOSOC itself (Giacca and Riedel, n 21, 1745, para 26). The Commission on Human Settlements was transformed, with effect from 1 January 2002, into the Governing Council of the United Nations Human Settlements Programme, to be known as UN-HABITAT, a subsidiary organ of the General Assembly (GA Res 56/206 (2002)). 533

  For example, the CNGO features five members from African states, four members from Asian states, two members from Eastern European states, four members from Latin American and Caribbean states, and four members from Western European and other states. The CPC has a similar geographic distribution (GA Res 42/450 (1987)). 534

  Giacca and Riedel, n 21, 1745, para 26, referring to the former Committee on Housing, Building, and Planning, the former ad hoc Committee for the Development of Natural Resources, and the former Commission on Transnational Corporations. They posit that this is due to the committees’ being of particular interest to such countries. 535

  The CPC featured members who were not members of ECOSOC, which was said to facilitate meetings between sessions (ibid at p 1745, para 25). 536

  In an effort to address various difficulties faced by the Committee for Programme and Coordination, the General Assembly decided that its members should be proposed by ECOSOC and elected by the General Assembly (ibid). 537

  See ch 5, ‘The Economic and Social Council’, section 5.5.3.

538

  ECOSOC Res 1996/31 (1996) is an update of ECOSOC Res 1296 (XLIV) (1968).

539

  See http://csonet.org/index.php?menu=80.

540

  According to its website (ibid): ‘The Committee’s decisions are considered recommendations, in the form of draft decisions calling for action by the Council…. Once an application from an NGO has been reviewed and approved by the Committee it is only considered recommended for consultative status. At its next meeting, usually in July of the same year, the Economic and Social Council reviews the recommendations, takes note of the Committee’s report and makes the decision final. It is only after the recommendation becomes an ECOSOC decision that the NGO is granted the consultative status.’ 541

  In 1987 the General Assembly (GA Res 42/450 (1987)), at the recommendation of ECOSOC, decided that the CPC should, from 1988 onward, be composed of 34 UN member states. 542

  These included ‘the proliferation of units obliged to report to ECOSOC; the separation of the competences for programming and budgeting; and finally, the qualification of its members delegated by governments, who did not always have the necessary expertise to cope with the full-time officials from the UN Secretariats or the specialized agencies, quite apart from the problem of the time available to an inter-governmental organ’ (Giacca and Riedel, n 21, 1745, para 25). 543

  GA Res 31/93 (1976).

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544

  The Yearbook of the United Nations does not classify it as a standing committee, nor as any other type of subsidiary or related organ (2012 UNYB 1529). The ECOSOC webpage, however, does: see at http://www.un.org/en/ecosoc/about/subsidiary.shtml. 545

  Giacca and Riedel, n 21, 1744, para 25.

546

  See http://www.un.org/en/ecosoc/about/subsidiary.shtml.

547

  Previously known as the Committee of Experts on the Transport of Dangerous Goods, it was given its current name and mandate in 1999 (ECOSOC Res 1999/65 (1999)). 548

  ECOSOC Res 1982/67 (1982).

549

  ECOSOC Res 715 A (XXVII) (1959), ECOSOC Res 1314 (XLIV) (1968), and a Decision of ECOSOC dated 4 May 1973. 550

  ECOSOC Res 2011/24 (2011). Note that the 2012 UNYB does not list the UN-GGIM as an Expert Body—despite listing the other eight (2012 UNYB 1529). 551

  ECOSOC Res 1035 (XXXVII) (1964) and ECOSOC Res 1079 (XXXIX) (1965). It was given its current name in 1998 (ECOSOC Res 1998/46 (1998)), having previously been known as the Committee for Development Planning. 552

  ECOSOC Res 2001/45 (2001); it succeeded the Group of Experts on Public Administration (ECOSOC Res 1199 (XLII) (1967)). 553

  Established in 1968 as the Ad Hoc Group of Experts on Tax Treaties between Developed and Developing Countries (ECOSOC Res 1273 (XLIII) (1967)), renamed the Ad Hoc Group of Experts on International Cooperation in Tax Matters in 1980 (ECOSOC Res 1980/13 (1980)), and given its current name in 2004 (ECOSOC Res 2004/69 (2004)). 554

  ECOSOC Res 1985/17 (1985). See also ch 22, ‘Promotion and Protection of Human Rights’, section 5. 555

  ECOSOC Res 2000/22 (2000).

556

  Giacca and Riedel, n 21, 1764, para 86.

557

  For example, the Committee of Experts on the Transport of Dangerous Goods and on the Globally Harmonized System of Classification and Labelling of Chemicals operates with two subcommittees: the Sub-Committee of Experts on the Transport of Dangerous Goods and the Sub-Committee of Experts on the Globally Harmonized System of Classification and Labelling of Chemicals. 558

  The ECOSOC website classifies the first two bodies listed as ‘Ad Hoc Mechanisms’— rather than ‘Subsidiary Bodies of ECOSOC’, see at http://www.un.org/en/ecosoc/ adhocmech/. Neither of the first two bodies listed is listed as a subsidiary organ by the Yearbook of the United Nations. However, that source does list the CEB as an ‘ad hoc body’ (2012 UNYB 1529). The ECOSOC website, on the other hand, lists the CEB neither as a subsidiary body nor as an ad hoc mechanism. For more on the CEB, see http:// www.unsceb.org/. 559

  See at http://www.un.org/en/ecosoc/about/subsidiary.shtml.

560

  ibid.

561

  By GA Res 64/289 (2010), the General Assembly created UN Women, which merges and develops four previously distinct parts of the UN system: the Division for the Advancement of Women (DAW), the International Research and Training Institute of the Advancement of Women (INSTRAW), the Office of the Special Adviser on Gender Issues and Advancement of Women (OSAGI), and the United Nations Development Fund for Women (UNIFEM).

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562

  See discussion at nn 47 and 138.

563

  2012 UNYB 1529–30. It refers to the Executive Board of the ‘United Nations Development Programme (UNDP)/United Nations Population Fund (UNFPA)/United Nations Office for Project Services (UNOPS). 564

  ibid. See section 9.4.3.1 for a discussion of the semi-autonomous subsidiary organs of the General Assembly. 565

  UN Charter, Art 7(2): ‘Such subsidiary organs as may be found necessary may be established in accordance with the present Charter.’ 566

  In view of the fact that the General Assembly, the Security Council, and ECOSOC rarely indicate whether they are acting under Art 7(2) or the article specific to each of these three principal organs when establishing a subsidiary organ, it is difficult to make categorical statements about the scope of Art 7(2). Some scholars do make such assertions; however, they are primarily based on an analysis of the difference in wording between Art 7(2) of the UN Charter and the power specific to the General Assembly, the Security Council, or ECOSOC (see section 2.1, ‘General and particular powers’) and, as such, of limited value when considering Art 7(2) in isolation. 567

  By SC Res 687 (1991), the Security Council decided that the Secretary-General would form a Special Commission to carry out inspections of Iraq’s biological, chemical, and missile capabilities. The Secretary-General reported back to the Security Council with a proposal for the Special Commission, including that it have an Executive Chairman and a Deputy Executive Chairman, and that its membership be in the order of 20 to 25 persons. This was agreed to by the Security Council and became known as the ‘Secretariat Task Force on the implementation of Security Council resolution 687 (1991)’. When an issue arose as to the status of the Commission, the Legal Adviser noted that while the SecretaryGeneral appointed the members of the Special Commission, he did so following Security Council approval of the Secretary-General’s proposals. ‘The Special Commission owes its origin to, and received its mandate from, the Security Council.’ The Legal Advisor noted that the Repertory of Practice of United Nations Organs indicated that the listed bodies were subsidiary bodies of the Security Council; however, it stressed that ‘no implication is intended as to whether [the listed] bodies are or are not subsidiary organs within the meaning of Article 29’. Nevertheless, the Legal Counsel held that ‘[i]n view of the above, the Special Commission should, for all intents and purposes, be treated as if it were a subsidiary organ of the Security Council’ ([1991] UN Juridical YB 295). 568

  ‘A United Nations Peace-keeping Force is a subsidiary organ of the United Nations, normally established pursuant to a resolution of the Security Council and falling under its authority. The Secretary-General is responsible to the Security Council for the organization, conduct and direction of the Force, and keeps the Council fully informed of developments relating to the functioning of the Force. The Secretary-General may, therefore, be regarded as the chief executive officer of every Peace-keeping Force’ ((1990) UN Juridical YB 269– 70). 569

  The Repertory of Practice notes that ‘in cases where the Secretary-General set up such bodies, no implication was intended as to whether these bodies did or did not fall under Article 7(2) of the Charter’ (UN RP Supp no 7 (1985–88) vol I, Art 7, p 3). See n 567 and the reasoning therein on this point. See also the 2012 Yearbook of the United Nations, which lists ‘Secretariats of subsidiary organs, special representatives amd other related bodies’ (2012 UNYB 1532–4). 570

  UN RP Supp no 1 (1954–55) vol I, Art 7, p 100, referring to UN Doc ST/ADM/SER.A/ 318.

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571

  UN RP Supp no 4 (1966–69) vol I, Art 7, p 105.

572

  UN RP Supp no 6 (1979–84) vol I, Art 7, p 136.

573

  ibid.

574

  UN RP Supp no 7 (1985–88) vol I, Art 7, p 3.

575

  UN RP Supp no 8 (1989–94) vol I, Art 7, p 3.

576

  ibid.

577

  UN RP Supp no 9 (1995–99) vol I, Art 7, p 3. For a discussion of this Report, see ch 27, particularly section 1.2, ‘Fundamental characteristics’. 578

  UN RP Supp no 10 (2000–09) vol I, Art 7, p 3.

579

  ibid, pp 3–4.

580

  ibid, p 4.

581

  ibid.

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Part 2 The United Nations: What it is, 7 United Nations Specialized Agencies Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

(p. 228) 7  United Nations Specialized Agencies 1.  Introduction 7.01 2.  Definition 7.03 3.  Development 7.08 4.  Other agencies or organizations 7.12 5.  Membership 7.18 6.  Legal personality 7.34 7.  Relationship agreements 7.35 8.  Relationship with principal organs 7.41 9.  Overview of mandates 7.51 10.  Bodies established by specialized agencies 7.56 Bredel and Kitaoka, ‘United Nations Industrial Development Organization (UNIDO)’ in MPEPIL (April 2007); Bretton, ‘La transformation de l’O.N.U.D.I. en Institution spécialisée des Nations Unies’ (1979) 25 AFDI 567; Duxbury, The Participation of States in International Organizations: The Role of Human Rights and Democracy (2011); Fomerand and Dijkzeul, ‘Coordinating Economic and Social Affairs’ in The Oxford Handbook on the United Nations (eds Daws and Weiss, 2008), 561; Goodrich, The United Nations in a Changing World (1974); Hüfner, Die Reform der Vereinten Nationen—Die Weltorganisation zwischen Krise und Erneuerung (1994); Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (1950); Kirgis, ‘Standing to Challenge Human Endeavors that could Change the Climate’ (1990) 84 AJIL 225; Kunig and Tietje, ‘Article 64’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1709; From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Magliveras, Exclusion from Participation in International Organisations: The Law and Practice Behind Member States’ Expulsion and Suspension of Membership (1999); Klein, ‘United Nations, Specialized Agencies’ in MPEPIL (August 2006); Martin, International Migration: Evolving Trends from the Early Twentieth Century to the Present (2014); Mathieu, Les Institutions spécialisées des Nations Unies (1977); Meng, ‘Article 57’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1611; Meng, ‘Article 63’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1697; Röben, ‘Article 62’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1678; Schermers and Blokker, International Institutional Law: Unity within Diversity (2011); Szasz, ‘The Complexification of the United Nations System’ (1999) 3 MPUNYB 1; Verdirame, The UN and Human Rights: Who Guards the Guardians? (2011); Wasserman, ‘WIPO: The Exclusion of South Africa?’ (1980) 14 Journal of World Trade 78; Williams, The Specialized Agencies and the United Nations (1987).

(p. 229) 1.  Introduction 7.01  United Nations specialized agencies are autonomous organizations working as part of the UN system in economic, social, cultural, educational, health, and related fields. There are 17 UN specialized agencies.1 Four of these—the International Labour Organization (ILO),2 the United Postal Union (UPU),3 the International Telecommunication Union (ITU),4 and the World Meteorological Organization (WMO)5—were in existence as international organizations before the establishment of the UN. Another four specialized agencies—the Food and Agriculture Organization (FAO),6 the International Monetary Fund (IMF), the International Bank for Reconstruction and Development (IBRD),7 and the International Civil Aviation Organization (ICAO)8—were established as intergovernmental organizations concurrently with the establishment of the UN. The remaining nine—the International Development Association (IDA), the International Finance Corporation (IFC), the International Fund for Agricultural Development (IFAD), the International Maritime Organization (IMO), the UN Educational, Scientific and Cultural Organization (UNESCO), the UN Industrial Development Organization (UNIDO), the World Health Organization (WHO), the World Intellectual Property Organization (WIPO), and the World Tourism Organization (UNWTO)—were (p. 230) formed subsequent to the establishment of the UN. An eighteenth specialized agency, the International Refugee Organization (IRO), existed from 18 November 1948 to 1 March 1952, at which point it ‘went into liquidation’.9 7.02  The UN Charter provides that specialized agencies are agencies established by intergovernmental agreement, having ‘wide international responsibilities, as defined by their basic instruments in economic, social, cultural, educational, health, and related fields’, which are ‘brought into relationship with the United Nations’.10 The United Nations Economic and Social Council (ECOSOC), subject to confirmation by the General Assembly, is empowered to enter into agreements defining the relationship terms (‘relationship agreements’).11 These ‘highly decentralized’ arrangements under the UN Charter may be contrasted to ‘what was at least the theory of the League of Nations that all cooperation in this field should be under the control and direction of the [League] Council and the [League] Assembly’.12

2.  Definition 7.03  Four requirements emerge from Article 57 of the UN Charter for specialized agencies. They must: 1.  be intergovernmental organizations established by intergovernmental agreement; 2.  have wide international responsibilities as per their basic instruments;

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3.  deal with economic, social, cultural, educational, health, and related fields; and 4.  be brought into a relationship with the UN.

13

7.04  As regards the first requirement, specialized agencies have their own constitutive documents in the form of treaties, each with its unique mandate. They are not ‘organs’14 of the UN, and consequently generally possess greater autonomy than UN organs.15 The (p. 231) fact that specialized agencies are autonomous intergovernmental organizations means that their memberships may be different from that of the UN, that their leadership structures will be different from that of the UN—each will have its own chief executive16— and that their organizational structures will be different from that of the UN. Each specialized agency has its ‘own constitutional structure with principal organs paralleling in function those of the United Nations, and an independent competence to determine its own programs and financial arrangements’.17 7.05  Second, the responsibilities of specialized agencies are to be ‘international’—as opposed to merely regional18—leading some to conclude that to be a specialized agency, the organization must be global and ‘of great importance’.19 7.06  As regards the third requirement—that specialized agencies deal with economic, social, cultural, educational, health, and related fields—some take the view that the enumerated fields represent a strict limitation on the areas for which a specialized agency may be created, and interpret the phrase ‘and related fields’ quite narrowly.20 There would, however, appear to be little to prevent a broader interpretation of the phrase ‘and related fields’ as a basis to expand the list beyond the subjects mentioned, and in practice not all of the specialized agencies fit neatly into the enumerated fields.21 (p. 232) 7.07  Lastly, in order for an organization to become a UN specialized agency, a relationship agreement must be entered into with ECOSOC and approved by the General Assembly.22 Until this occurs, the entity in question is seen as an intergovernmental organization and not a UN specialized agency.23 Once an entity becomes a specialized agency, it is part of the UN system and may be expected to engage in furthering the purposes set forth in the Charter.24

3.  Development 7.08  Between 1945 and 1951, ECOSOC and the General Assembly approved draft relationship agreements with 12 intergovernmental organizations, one of which—the IRO25 —has now ceased to exist. The date upon which intergovernmental organizations become specialized agencies of the UN is the date of approval of the relationship agreement either by the relevant intergovernmental organization or by the General Assembly, whichever comes last. At its 1st session, ECOSOC established a Negotiating Committee charged with entering into negotiations to establish draft relationship agreements.26 At its 1st session, the General Assembly approved relationship agreements between the UN and the FAO,27 the ILO,28 the ICAO,29 (p. 233) and UNESCO.30 At its 2nd session, the General Assembly approved relationship agreements with the WHO,31 the UPU,32 the ITU,33 the IBRD,34 and the IMF.35 At its 3rd session, the General Assembly approved relationship agreements with the IRO36 and the IMO (then known as IMCO).37 At its 6th session, in 1951, the General Assembly approved a relationship agreement with the WMO.38 7.09  The relationship agreements of the remaining seven specialized agencies were approved in a more gradual way. Relationship agreements with two additional agencies of the World Bank Group, the IFC and the IDA, were approved on 20 February 195739 and 27 March 196140 respectively, on which dates they became specialized (p. 234) agencies on

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terms similar to those of the IBRD, their parent agency.41 The relationship agreement with WIPO was approved on 17 December 1974.42 7.10  On 15 December 1977, after certain changes called for by the General Assembly were agreed, the relationship agreement with IFAD was approved.43 Beginning in 1976,44 the General Assembly called for UNIDO, which had been established in 1965 as an autonomous organization within the UN and a subsidiary organ of the General Assembly,45 to be converted into a specialized agency.46 However, it was not until 1985 that UNIDO’s relationship agreement was approved by the General Assembly.47 7.11  Since the establishment of UNIDO as a specialized agency, there has been something of a trend away from UN-related intergovernmental organizations desiring specialized agency status.48 Some of these organizations do, however, have certain of (p. 235) the benefits held by specialized agencies.49 The UNWTO—originally a non-governmental organization (NGO), which converted into an intergovernmental organization50—is the most recently established specialized agency. It became a specialized agency in December 2003 after the General Assembly approved its relationship agreement.51

4.  Other agencies or organizations 4.1  Former specialized agencies 7.12  On 15 December 1946, the General Assembly of the UN approved a Constitution providing for the establishment of the IRO, and it was officially established on 20 August 1948. On 18 November 1948, the United Nations General Assembly approved an Agreement bringing IRO into relationship with the UN as a specialized agency.52 It ceased to exist on 1 March 195253 (with the establishment of the United Nations High Commissioner for Refugees), making it the sole UN specialized agency that has ceased functioning.54

(p. 236) 4.2  Agencies of a similar nature 4.2.1  Trade-related entities 7.13  In 1946, ECOSOC called for a Conference on Trade and Employment (the ‘Havana Conference’).55 The establishment of an international trade organization as a specialized agency of the UN was suggested as one of the topics. The Conference drew up a Charter for an International Trade Organization (ITO) (‘the Havana Charter’) and adopted a resolution establishing an Interim Commission for the ITO (ICITO). However, because of a lack of governmental support, the Charter and, therefore, the ITO were never agreed to.56 Nevertheless, the Secretariat reported on the ITO for many years, describing it as a ‘not yet existing’ specialized agency. Because the ITO did not come into existence, some of its functions were assumed by the Contracting Parties to the General Agreement on Tariffs and Trade (GATT).57 That agreement, concluded as a result of negotiations undertaken pursuant to a resolution of the Havana Conference, was signed by 23 nations in Geneva on 30 October 1947 and took effect on 1 January 1948. Though not a specialized agency, the GATT was treated as such de facto.58 It is described as ‘the fragment of a planned specialized agency, the International Trade Organization, which it was not possible to activate’.59 7.14  The World Trade Organization (WTO), represented an updated version of the failed ITO. It came into existence in 1995,60 at which time it subsumed the GATT—and various other multilateral trade agreements—within its institutional framework.61 The WTO is sometimes characterized by the UN as a ‘Related Organization’,62 alongside the International Atomic Energy Agency (IAEA) and the IOM.

4.2.2  International Atomic Energy Agency

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7.15  The IAEA, described as a specialized agency ‘in all but name’,63 is technically in a class by itself, ‘due in part to its special relation to the Security Council’.64 Szasz takes the view that it could not become a specialized agency, ‘principally because its relationship agreement was not negotiated with ECOSOC…reflecting the fact that the (p. 237) Agency’s international security related activities might require it to have access to the [Security Council] rather than to ECOSOC’.65 The IAEA nevertheless has many similarities to specialized agencies, including a relationship agreement with many similar provisions— complete with the right to ask the ICJ for Advisory Opinions. Although the IAEA was not party to the Convention of Privileges and Immunities of Specialized Agencies, it has adopted its own agreement on the subject that closely follows the text of that Convention.66 The IAEA is sometimes characterized by the UN as a ‘Related Organization’,67 alongside the WTO and the IMO.

4.3  Other organizations 7.16  The International Organization for Migration (IOM) was established in 1951 outside the UN system. It is dedicated to promoting humane and orderly migration by providing services and advice to governments and migrants.68 The IOM has held permanent observer status in the General Assembly since 1992, and a cooperation agreement between the IOM and the UN was signed in 1996.69 In 2002, the IOM Council established the Working Group on Institutional Arrangements, which considered whether the IOM should continue to be outside the UN system or whether it should be transformed into a specialized agency.70 The Working Group cited favourably the considerable cooperation between the IOM and the UN, even though the former was not a UN specialized agency; however, it expressed concern ‘that the UN might decide to establish its own migration organization, or give responsibility to one of its other agencies if IOM did not join as a specialized agency’.71 While noting that certain ‘enhanced rights, privileges, opportunities, visibility and standing at the United Nations Headquarters, in the Field, and in capitals around the world’ might occur if it became a specialized agency,72 the Report also cited additional (p. 238) costs, ‘both in financial and staff time terms’, associated with becoming a specialized agency.73 ‘In 2003, the Council opted for an “improved status quo” in the relationship between the IOM and the UN.74 As migration issues became more prominent on the UN’s agenda,75 the IOM’s relationship with the UN—and whether it would be preferable for it to become a specialized agency76—continued to be an issue.77 Ultimately the IOM opted not to become a specialized agency of the UN, preferring to enter into an alternative form of relationship; consequently, in August 2016, the IOM became a Related Organization of the UN.78 The IOM now styles itself ‘International Organization for Migration: The UN Migration Agency’.79 7.17  Szasz notes that because the Organization for the Prohibition of Chemical Weapons (OPCW) and the Comprehensive Nuclear Test-Ban Treaty Organization (CBTBO) ‘deal solely with questions of military security…it would be inappropriate for them to coordinate their activities through ECOSOC or ECOSOC-created machinery’.80 (p. 239) Szasz also applied this reasoning for the ITLOS81 and the ICC.82 The UN has entered into ad hoc relationship agreements with such organizations, which tend to provide for a certain level of cooperation and may include for the issuance of laissez-passers.83 However, the IAEA is unique among organizations in the UN family that are not specialized agencies in that it has been authorized to request an Advisory Opinion of the ICJ.

5.  Membership 5.1  Admission 5.1.1  Generally

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7.18  Specialized agencies have their own membership rules, providing them with a level of flexibility that would be lacking if their composition was identical to that of the UN.84 Some specialized agencies allow automatic membership for UN member states,85 and some provide a role for the UN as regards the ability of new states to join.86 Specialized agencies tend to aspire to broad, sometimes near-universal, (p. 240) membership, rivalling or exceeding that of the UN itself.87 Membership in the 17 specialized agencies (in alphabetical order), as of January 2017, is as follows: •  FAO: 194 members, 2 associate members, and 1 member organization; •  IBRD: 189 members;

89

•  ICAO: 191 members;

90

•  IDA: 173 members;

91 92

•  IFAD: 176 members; •  IFC: 184 members;

93

•  ILO: 187 members;

94

•  IMF: 189 members;

95

•  IMO: 172 member states and 3 associate members; •  ITU: 193 members;

88

96

97

•  UNESCO: 195 full members and 10 associate members; •  UNIDO: 168 members;

98

99

•  UNWTO: 157 member states, 6 associate members, and over 500 affiliate members. 100

•  UPU: 192 members;

101

•  WHO: 194 members;

102

•  WIPO: 189 members;

103

•  WMO: 185 member states and 6 territories.

104

7.19  Some specialized agencies allow for non-state entities to join, sometimes as associate members.105 Where the specialized agency’s constitution speaks of ‘states’ becoming (full) members, the decision in this regard would appear to fall to the specialized (p. 241) agency’s own internal membership process,106 generally based on a two-thirds majority vote.107 This has resulted in situations where entities whose status as sovereign states was questioned have attempted to join specialized agencies. Three such cases—those of Namibia, Palestine, and Kosovo—are discussed in the sections following.

5.1.2  Namibia 7.20  Although pre-independence Namibia was not a state, in 1976 the UN General Assembly recommended that specialized agencies consider granting the UN Council for Namibia full membership so that it might participate as the Administering Authority for Namibia in the work of the agencies.108 In 1977, it was admitted as a full member of the FAO.109 In 1978, it was admitted as a full member of the ILO110—despite the ILO Legal Adviser’s concluding that it would be improper to afford Namibia full membership as it ‘has not yet attained independent statehood’ and was not yet ‘able to exercise all the rights and discharge of all the obligations of membership in the organization’.111 Before gaining independence in 1990, it also became a full member of UNESCO (1978), UNIDO (1986), and the ITU (1984), as well as an associate member of the WHO.112 As Schermers and Blokker rightly observe, this should not be considered as recognition that Namibia had

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fulfilled all the criteria for statehood, but rather as a case sui generis, which can only be understood within the context of its specific history of UN involvement.113

(p. 242) 5.1.3  Palestine 7.21  Following its Declaration of Independence in November 1988, the Palestine Liberation Organization (PLO), claiming to represent the state of Palestine, requested full membership in the WHO.114 The PLO also indicated that it would attempt to achieve membership in a number of other specialized agencies.115 Unlike other specialized agencies, which tend to require a two-thirds majority, membership in the WHO may be gained by a simple majority vote.116 At the time, the UN General Assembly did not recognize Palestine as a state.117 The US was fiercely opposed, and made it clear that if the WHO admitted Palestine, as represented by the PLO, it would withhold its assessed dues.118 In a decision of 12 May 1989, the World Health Assembly (WHA) put off the decision for a year,119 and then in May 1990 put it off again, apparently indefinitely.120 7.22  In anticipation of a similar request, the Director-General of UNIDO obtained a Legal Opinion from the UN Secretariat in 1989 on the legal implications of such a request by Palestine.121 Invoking the Namibia precedent, the Legal Adviser concluded that ‘the question of an applicant’s eligibility for membership in UNIDO will ultimately be decided by the members of UNIDO’.122 Laws were passed in the US in the early and mid-1990s to withhold funding from any UN organization that gave the PLO the same standing as member states, or which ‘grants full membership as a state to any organization or group that does not have the internationally recognized attributes of statehood’.123 (p. 243) 7.23  The issue of Palestine’s status emerged once again arose in 2011, when the Palestinian Authority requested membership for Palestine in the UN in September 2011.124 Although this was not possible due to the US’s veto,125 in November of that year Palestine was given full membership in UNESCO,126 where the US does not, of course, have a veto.127 Shortly thereafter, the US State Department, citing the laws passed in the 1990s, announced that the US would withhold all funding from UNESCO. An initial indication by the Palestinian Authority that it would seek membership in other specialized agencies does not appear to have been acted upon—perhaps due to an awareness that the US would cease funding any such agency. 7.24  The fact that Palestine is a full member of UNESCO means that, despite not being a UN member state, it may participate as a full member state in UN Conferences that use the ‘Vienna’ formula128 for participation, but not in conferences that use the ‘all States’ formula.129 Which formula is used is decided upon by the General Assembly or ECOSOC, under whose auspices UN Conferences are usually convened, and it falls to the SecretaryGeneral to implement the appropriate formula.130

5.1.4  Kosovo 7.25  In 2008, Serbia called for a speaker who was listed as a representative of the United Nations Interim Administration Mission in Kosovo (UNMIK) to be removed from the list of speakers, arguing that the speaker was Minister of Labour and Social Welfare of the Provisional Institutions of Self-Government in Kosovo and that, consequently, he could not represent the UNMIK administration. In view of the fact that the speaker had been regularly accredited as a member of the UNMIK delegation and that the Special Representative of the Secretary-General had signed the (p. 244) speaker’s accreditation, there was held to be no legal impediment to his speaking.131 In 2015, an application by the government of Kosovo for membership in UNESCO was rejected when the necessary twothirds majority was not obtained.132

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5.2  Denial of membership, suspension or expulsion, denial of privileges, and criticism of policies 5.2.1  Generally 7.26  At various times over the years, efforts have been made to deny membership in a specialized agency to a state, or to exclude or suspend member states from specialized agencies where a state’s conduct is considered to be unacceptable. At times, specialized agencies have excluded members despite the constituent instrument’s not having a provision on suspension or expulsion, leading to criticism that such actions have been ultra vires.133 In other cases, specialized agencies have taken steps to deny certain states the right to full participation,134 or have refused to recognize their credentials.135 Similarly, a number of states have been the object of criticism (or attempts thereat in the form of draft resolutions that were not passed), some of which have become ‘so routine as to attract little attention even in the organization where they are raised’.136 (p. 245) 7.27  Some member states have argued that such ‘politicized’ action is unwarranted or inappropriate and better suited to other forums—such as the UN’s political organs.137 It may be that this argument may be more convincingly made where the state that is the subject of the censure is engaged in its technical actions under the specialized agency’s constitutive instrument. For example, when demands were made that South Africa be expelled from the WMO, the question arose as to the impact the lack of legitimacy of that country’s government had on its meteorological role.138 However, such an argument would be less persuasive when the specialized agency is mandated to address non-technical areas, such as human rights or justice.139 7.28  While it is difficult to generalize, it would appear that, with the exception of South Africa, the tactics as exercised in the specialized agencies have made little impact in terms of changing the conduct of the targeted governments.140 The political situations in Spain, South Africa, and Israel have attracted the most controversy over the years, and they are therefore considered further here.

5.2.2  Spain 7.29  The General Assembly recommended in 1946 that the Franco Government in Spain be ‘debarred from membership in international agencies established by or brought into relationship with the United Nations, and from participation in conferences or other activities which may be arranged by the United Nations or by these agencies’.141 Because Spain was already a member of the ICAO,142 the General Assembly made its approval of the UN’s relationship agreement with the ICAO conditional on the ICAO’s complying ‘with any decision of the General Assembly regarding Franco’s Spain’.143 The relationship agreement with the ITU was approved by the General Assembly on a similar basis,144 and Spain was excluded from the work of the UPU (p. 246) in 1947.145 By 1950, however, although Spain was still ruled by a military dictator, the politics of the situation had changed.146 As a result, the General Assembly, noting that the specialized agencies were ‘technical and largely nonpolitical in character and have been established in order to benefit the peoples of all the world’, modified its earlier resolution147 and declared that specialized agencies ‘should be free to decide for themselves whether the participation of Spain in their activities is desirable in the interest of their work’.148

5.2.3  Israel’s treatment of Palestinians 7.30  In 1974, the ILO passed a resolution declaring that any occupation of territory was aggression or a violation of human and trade union rights, condemned Israel for violation of trade union freedom in its occupied territories, and called on the ILO governing body and the Director-General to use all means at their disposal to end this violation and guarantee freedom and dignity to certain Arab workers.149 Other specialized agencies also denounced Israel’s conduct: for example, UNESCO attacked the ‘occupying power’ when addressing From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

issues of archaeology in Jerusalem, and the WHO condemned the practices in Israeli prisons as inhuman.150 The ILO also attempted unsuccessfully to pass a resolution denouncing ‘Israel’s policy of settlement, expansion and discrimination and its actions with regard to the situation of Arab workers in Palestine and other occupied Arab territories’.151 7.31  In 1982 an unsuccessful attempt was made to have Israel excluded from the ITU’s directing body and all future ITU Conferences due to its conduct in Lebanon.152 In addition to the condemnatory language in resolutions, there were frequent efforts to deny the credentials of the Israeli delegation, or to suspend its voting rights or programme services.153

(p. 247) 5.2.4  South Africa 7.32  Action was taken against South Africa in a number of specialized agencies, including the WMO (suspension in 1975),154 UPU (expulsion in 1979),155 WHO (suspension of voting privileges in 1964),156 FAO (exclusion from its work in 1963; withdrawal in 1968),157 ILO (request for withdrawal;158 exclusion from meetings in 1963; withdrawal in 1966).159 Its credentials were rejected by the IAEA in 1977 and it withdrew from UNESCO in 1955.160 In 1973, the Government of South Africa was excluded from all conferences and meetings of the IMO.161 In September 1979, a proposal to exclude South Africa from the WIPO was defeated by a narrow margin.162

5.3  Withdrawal 7.33  Of the 17 specialized agencies, only the WHO does not have a provision regarding withdrawal.163 A perception that the ILO was overly politicized164 led to the US notifying that specialized agency of its intention to withdraw in 1975 and its withdrawal two years later.165 In another case, nine states withdrew from the WHO in (p. 248) 1949 and 1950,166 citing matters such as inefficiency, a ‘swollen administrative machinery involv[ing] expenses which are too heavy’,167 and US domination.168 Also, a number of states withdrew from UNESCO for various reasons.169 In some cases withdrawal seems to have been something of a face-saving measure for a state that was almost certain to be expelled.170

6.  Legal personality 7.34  It is generally accepted that specialized agencies enjoy international personality.171 Given that the constitutions of some specialized agencies do not contain a specific provision on legal personality under municipal law,172 their legal personality under municipal law could be questioned in some of the large number of member states which have made no express provision in their national legal order. However, according to studies conducted by the Secretariat of the UN, the legal personality of the specialized agencies has been generally accepted in practice.173

(p. 249) 7.  Relationship agreements 7.1  Generally 7.35  While there are differences among the relationship agreements between specialized agencies and the UN, their format tends to be broadly similar and many of their provisions are standardized. One exception is that the IMF, IBRD, IDA, and IFC have a greater degree of autonomy than other specialized agencies.174 In particular, these four specialized agencies ‘accepted only very conditioned obligations to take account of General Assembly recommendations, and they did not undertake to join in any common system of staff administration’.175 Generally speaking, relationship agreements are short (two or three pages) and begin with a preamble, invoking Articles 57 and 63 of the UN Charter, followed

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by somewhere between 10 and 25 articles. A comparison among agreements shows their content to be strikingly similar, with a number of common provisions.

7.2  Features of agreements 7.2.1  Recognition by the UN 7.36  Relationship agreements tend to provide for the UN’s recognition of the intergovernmental organization as ‘a specialized agency responsible for taking such action as may be appropriate’ under its basic instrument ‘for the accomplishment of the purposes set forth therein’.176

7.2.2  Cooperation 7.37  A large part of a relationship agreement is devoted to elaborating the nature of the cooperative relationship between the UN and the specialized agency. Some of these duties of cooperation are reciprocal (eg representation at meetings of the other party,177 the ability to propose agenda items at meetings of the other party, exchange of information, and cooperation on personnel arrangements, statistical services, and administrative and technical services), while some obligations fall to the specialized agency alone (eg to bring the recommendations of the General Assembly or (p. 250) ECOSOC to the attention of the appropriate organ of the specialized agency, to cooperate and coordinate with the UN,178 to provide reports,179 to provide assistance to the UN, to give effect to principles and obligations affecting non-self-governing and other territories, to establish close budgetary and financial relationships with the UN,180 etc).

7.2.3  ICJ Advisory Opinions 7.38  All of the relationship agreements between the UN and specialized agencies, except the UPU–UN agreement, provide that the General Assembly authorizes the specialized agency to ‘request advisory opinions of the International Court of Justice on legal questions arising within the scope of its activities other than questions concerning the mutual relationship of [the specialized agency] and the United Nations or other specialized agencies’.181 Although not a specialized agency, the IAEA has a provision regarding Advisory Opinions in similar terms in its relationship agreement with the UN.182 7.39  The relationship agreements provide which organ of the specialized agency may make such a request and require the specialized agency to notify ECOSOC of the request.183 To date, four requests for Advisory Opinions have been made by specialized agencies: one from UNESCO,184 one from the IMO,185 and two from the WHO.186 The relationship agreements also provide that the specialized agencies (p. 251) agree ‘to furnish any information which may be requested’ by the ICJ in pursuance of Article 34 of the Statute of the Court.187 With the ICAO, the ICJ has been accepted as a court of appeal for decisions of the board.188

7.2.4  Other provisions 7.40  In addition, relationship agreements feature provisions regarding the implementation, amendment, revision, and entry into force of the agreement. Relationship agreements with the early specialized agencies did not have a provision regarding the use of the UN laissez-passer, though more recent ones do.189 Also, more recent relationship agreements, unlike earlier ones, have a provision regarding information services.190

8.  Relationship with principal organs 8.1  ECOSOC 8.1.1  Generally

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7.41  While it is clear from the UN Charter that ECOSOC is the principal organ with the closest relationship to the specialized agencies, many of ECOSOC’s functions in relation to specialized agencies are ‘vested in the General Assembly and, under the authority of the General Assembly, in [ECOSOC]’.191 ECOSOC is empowered to ‘make or initiate studies and reports with respect to international economic, social, cultural, educational, health, and related matters and may make recommendations with respect to any such matters to’ the specialized agencies concerned.192

(p. 252) 8.1.2  Recommendations 7.42  ECOSOC has made frequent use of its power to make recommendations to specialized agencies193 on a wide variety of issues.194 While the relationship agreements require the specialized agencies to submit such recommendations to the governing body or other such appropriate organ, the obligation does not extend beyond one of entering ‘into consultation with the United Nations upon request with respect to such recommendations, and in due course to report to the United Nations on the action taken…to give effect to such recommendations, or on the results of their consideration’.195 Practice shows that ECOSOC considers its recommendations to be non-binding and has shown itself to be cautious in limiting such recommendations to areas that are covered by the relationship agreement with the particular specialized agency.196

8.1.3  Coordination 7.43  Article 63(2) of the UN Charter provides that ECOSOC ‘may coordinate the activities of the specialized agencies through consultation with and recommendations to such agencies and through recommendations to the General Assembly and to the Members of the United Nations’. In the early years of its functioning, the focus of ECOSOC in this respect fell into four main categories: selection of priorities and concentration of effort and resources; regional coordination; coordination of activities of the specialized agencies with respect to operating or emergency agencies of the UN; and coordination of assistance in cases of natural disaster.197 Despite its (p. 253) functioning being largely subject to the approval of the General Assembly, ECOSOC’s role involved ‘independent executive decisionmaking powers’.198 7.44  In 1946, ECOSOC established the Administrative Committee on Coordination (ACC). Its main purpose was initially to supervise the implementation of the relationship agreements,199 but as the system expanded it ‘evolved into the central body for coordination of the UN organizations in implementing the goals of member states in a wide range of substantive and management issues’.200 In 2000, the ACC became the ‘United Nations System Chief Executives Board for Coordination’ (CEB), the main inter-agency forum.201 It currently has 31 members,202 who meet twice a year under the chairmanship of the Secretary-General. Meng notes that while ECOSOC initially had an important role as regards coordination of the specialized agencies, it later diminished in importance in favour of the General Assembly.203 7.45  In 2013, the General Assembly called for ECOSOC to ‘strengthen its role as the central mechanism for coordination of the activities of the United Nations system and its specialized agencies and supervision of subsidiary bodies in the economic, social, environmental and related fields’.204 Amongst other things, it called on ECOSOC (p. 254) to base its annual programme of work on a main theme and to invite the specialized agencies to contribute to its work in keeping with the agreed theme.205

8.1.4  Reporting

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7.46  Under Article 64(1) of the UN Charter, ECOSOC may take steps ‘to obtain regular reports from the specialized agencies’, and may make arrangements with UN member states and with the specialized agencies ‘to obtain reports on the steps taken to give effect to its own recommendations and to recommendations on matters falling within its competence made by the General Assembly’.206 Article 64(2) provides that ECOSOC ‘may communicate its observations on these reports to the General Assembly’. Reports obtained by ECOSOC from specialized agencies may be (i) regular reports as called fo\r in the relationship agreements; (ii) reports on the implementation of recommendations of ECOSOC or the General Assembly; or (iii) reports arising from specific ECOSOC resolutions (whether relating to regular reports, or to reports on the implementation of recommendations of the General Assembly or the Council).207 ‘One important reason for reporting and discussing reports is to improve coordination between the organizations concerned.’208 7.47  In 1947, the General Assembly called on specialized agencies to provide ECOSOC with annual reports, ‘as appropriate under the terms of their respective agreements with the United Nations’.209 In 1948, ECOSOC provided specifics concerning the timing, form, and content of the reports to be submitted each year.210 ECOSOC originally examined reports and ‘issued recommendations to stimulate the coordination of activities’; however, in 1997, it ‘decided to discontinue the submission of “analytical summaries” of these reports’.211 In 1997, as part of its ‘Agenda for Development’, the General Assembly called for enhanced interaction between ECOSOC and the specialized agencies, including through the provision of regular reports.212

(p. 255) 8.2  General Assembly 7.48  In addition to the supervisory functions relating to ECOSOC’s role, the General Assembly has a number of responsibilities in relation to specialized agencies. It is charged with considering and approving ‘any financial and budgetary arrangements with specialized agencies’, and with examining the specialized agencies’ administrative budgets ‘with a view to making recommendations to the agencies concerned’.213 In addition, it falls to the General Assembly to decide whether or not to authorize specialized agencies to ‘request advisory opinions of the Court on legal questions arising within the scope of their activities’.214 The General Assembly Rules of Procedure reflect the cooperative relationship between the General Assembly and specialized agencies.215 7.49  In the early years of the organization, the General Assembly attempted to influence the membership of some specialized agencies.216 Its attempts in the 1960s to stop the World Bank and IMF from assisting Portugal and South Africa were not successful, with the Bank claiming that it was not bound by the resolutions of the General Assembly.217

8.3  Trusteeship Council 7.50  Article 91 of the UN Charter provides that the Trusteeship Council shall, when appropriate, avail itself of the assistance of specialized agencies in regard to matters with which they are concerned. The Rules of Procedure of the Trusteeship Council provide that ‘Representatives of specialized agencies shall be invited to attend meetings of the Trusteeship Council and to participate, without vote, in its deliberations in the circumstances indicated in the respective agreements between the United Nations and the specialized agencies.’218 In early relationship agreements, the obligation of the Trusteeship Council to invite representatives of the specialized agencies to participate, without vote, in its deliberations with respect to relevant items was set (p. 256) out,219 as was the obligation of specialized agencies to assist and cooperate with the Trusteeship Council.220 Such provisions were not contained in the most recent relationship agreement, that relating to

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UNWTO, presumably owing to the fact that the Trusteeship Council has fallen into desuetude.221

9.  Overview of mandates 9.1  Generally 7.51  Article 57 of the UN Charter speaks of economic, social, cultural, educational, health, and related fields. Certain of the specialized agencies fit well into the listed fields—for example the Bretton Woods organizations223 are clearly economic in nature, and the WHO clearly falls under the heading of ‘health’. Others fit under more than one heading—such as UNESCO, which, as it name makes clear, deals with the educational and cultural fields (as well, of course, as the scientific field, though that is not among those listed), or the ILO (which may be said to deal with economic, social, and cultural matters). The work of others —such as the WMO or the ITU—would appear to fall outside the listed categories, and, some might argue, even outside the ‘related fields’ category. 7.52  Some functions of specialized agencies overlap with the work of UN organs; indeed, there may be overlap among specialized agencies.224 A brief overview of the various specialized agencies is divided along the following lines: (i) economic specialized agencies; (ii) technical specialized agencies; and (iii) the other specialized agencies.222

9.2  Economic specialized agencies 7.53  There are five such agencies. The first two—the IMF and the IBRD—are known as the Bretton Woods institutions. (p. 257) 1.  The IMF was established as a framework for economic cooperation to avoid a repetition of the competitive devaluations that had contributed to the Great Depression of the 1930s. 225 2.  The IBRD was established to facilitate post-war reconstruction and development by providing capital and guarantees; however, its work has now evolved to a current mandate of worldwide poverty alleviation through financing development projects. 226 3.  The IFC was established to finance private enterprises in developing countries but without government guarantees. 227 4.  The IDA was established to reduce poverty by providing loans and grants for programs that boost economic growth, reduce inequalities, and improve people’s living conditions. 228 The IFC and the IDA are both ‘offshoots’ of the IBRD and are part of the ‘World Bank Group’. 229 5.  The IFAD operates on principles that are substantially the same as those of the IBRD but is confined to making concessional loans in the agricultural sector. 230

9.3  Technical specialized agencies

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7.54  Seven specialized agencies are considered ‘technical’. The creation of this early type of international organization is said to be ‘the consequence of technical changes affecting the whole world which called for international regulation’.231 They have ‘developed largely into agencies for the exchange of information, international standardization and the provision of technical assistance.’232 1.  The ITU’s mandate includes the allocation of the global radio spectrum and satellite orbits, and the development of the technical standards to ensure that networks and technologies interconnect seamlessly. 233 2.  The UPU describes itself as the ‘primary forum for cooperation between postal sector players’, providing advice, mediation, liaison, and technical assistance. 234 (p. 258) 3.  The ICAO works to arrive at international civil aviation standards and practices for a safe, efficient, secure, economically sustainable, and environmentally responsible civil aviation sector. 235 4.  The WMO works to facilitate the maintenance and expansion of its members’ atmospheric, oceanographic, and land-based observational networks, and the free unrestricted exchange of the resulting data and information. It also supports related capacity development and research in order to optimize the production of weather, climate, and water-related services worldwide. 236 5.  The IMO describes itself as ‘the global standard-setting authority for the safety, security and environmental performance of international shipping. Its main role is to create a regulatory framework for the shipping industry that is fair and effective, universally adopted and universally implemented.’ 237 6.  The WIPO offers a range of global services for protecting intellectual property across borders and for resolving intellectual property disputes outside the courts.

238

7.  The UNWTO describes itself as being responsible for the promotion of responsible, sustainable, and universally accessible tourism. 239

9.4  Other specialized agencies 7.55  UNESCO, the FAO, the ILO, and the WHO were known as the ‘Big Four’ among the specialized agencies, given their ‘social as well as…purely functional purpose’.240 To these, UNIDO may be added as the ‘new Fifth’:241 1.  UNESCO describes its mission as contributing ‘to the building of peace, the eradication of poverty, sustainable development and intercultural dialogue through education, the sciences, culture, communication and information’. 242 2.  The FAO describes its three main goals as the eradication of hunger, food insecurity and malnutrition; the elimination of poverty and the driving forward of economic and social progress for all; and, the sustainable (p. 259) management and utilization of natural resources, including land, water, air, climate and genetic resources for the benefit of present and future generations. 243 3.  The ILO describes its main aims as being ‘to promote rights at work, encourage decent employment opportunities, enhance social protection and strengthen dialogue on work-related issues’. 244

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4.  The WHO’s primary role is to direct and coordinate international health within the UN system through the promotion of health and the eradication of diseases. 245 5.  The UNIDO works to reduce poverty through assisting the poor to engage in productive activities, to strengthen the capacity of developing countries to participate in global trade, and to promote sustainable patterns of industrial consumption and production of energy to aid sustainable development. 246

10.  Bodies established by specialized agencies 7.56  Specialized agencies have established bodies jointly with the UN247 or amongst themselves.248

Footnotes: 1

  There is sometimes confusion in the literature about the number of specialized agencies in existence. This arises for several reasons. First, some analysts, including, in some instances, the UN Secretariat include the International Atomic Energy Agency (IAEA) on their list of specialized agencies, despite the fact that, while treated in a similar way, it is not technically a specialized agency (see section 4.2.2, ‘International Atomic Energy Agency). Second, some analysts, again sometimes including the UN Secretariat (see at http://www.unsystem.org/members/specialized-agencies), count the International Bank for Reconstruction and Development (IBRD), the International Development Agency (IDA), and the International Finance Corporation (IFC) as a single specialized agency under the heading ‘World Bank Group’. Fomerand and Dijkzeul speak in terms of 14 autonomous agencies: they include the IAEA but omit the International Monetary Fund (IMF), the IBRD, the IDA, and the IFC, characterizing the four financial agencies as being ‘technically part of the UN system but operat[ing] separately’ (Fomerand and Dijkzeul, ‘Coordinating Economic and Social Affairs’ in The Oxford Handbook on the United Nations (eds Daws and Weiss, 2008), 561, at 563). 2

  Established in 1919.

3

  Established in 1874 (see at http://www.upu.int/en/the-upu/the-upu.html).

4 

Established in 1865. Originally known as the International Telegraph Union, it took its present name in 1934. 5 

The WMO was established in 1950; however, it originated from the International Meteorological Organization (IMO), which was founded in 1873. 6 

In 1943, 44 governments, meeting in Hot Springs, Virginia, US, committed themselves to founding a permanent organization for food and agriculture. See at http://www.fao.org/ about/en/. 7

  The United Nations Monetary and Financial Conference met in Bretton Woods, New Hampshire, from 1–22 July 1944, with 44 state participants. The Final Act of the Conference included the Articles of Agreement of the IMF and the IBRD (1946–47 UNYB Part 2, Sections 5 and 6). 8

  In November 1944, the US issued invitations to 55 allied and neutral states to meet in Chicago. The Final Act of the Conference contained, inter alia, the text of a Convention on International Civil Aviation, and the International Civil Aviation Organization came into being on 4 April 1947, 30 days after the Convention on International Civil Aviation had been ratified by 26 states, as required by the Convention (1946–47 UNYB Part 1, Section 4).

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9

  UN RP (1945–54) vol III, Art 57, p 122, fn 4, relying upon the fourth and final report of that Organization (ESC (XIV), Annexes, a.i. 18, p 1, E/2211). For a brief discussion of the IRO, see section 4.1, ‘Former specialized agencies’. 10

  Art 57 of the Charter of the United Nations, 24 October 1945, 1 UNTS XVI (‘UN Charter’). 11

  UN Charter, Art 63.

12

  Goodrich, The United Nations in a Changing World (1974), 216. See also Meng, ‘Article 57’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 1611, at 1622–3, paras 26–30. 13

  Szasz refers to some intergovernmental organizations that were ‘too small and narrow in concept to fit the Charter definition of [specialized agencies], such as the numerous commodity organizations established by a series of UNCTAD [United Nations Conference on Trade and Development]-sponsored treaties sponsored by the UN Conference on Trade and Development (UNCTAD) or the International Tropical Timber Organization’ (Szasz, ‘The Complexification of the United Nations System’ (1999) 3 MPUNYB 1, at 39). 14

  Art 96(1) of the UN Charter distinguishes between ‘[o]ther organs of the United Nations’ and specialized agencies; cf Kelsen, who notes that it may be correct to characterize them as ‘indirect’ UN organs (Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (1950), 146). 15

  Williams, The Specialized Agencies and the United Nations (1987), 43. However, it must be noted that certain subsidiary organs, including The United Nations Children’s Fund (UNICEF), the United Nations High Commissioner for Refugees (UNHCR), the United Nations Development Programme (UNDP), and the World Food Programme, have a level of autonomy that rivals that of specialized agencies. The size and importance of these ‘semiautonomous subsidiary organs’ (see ch 6, ‘Subsidiary Organs’, particularly section 9.5, ‘Functions of the subsidiary organs of the General Assembly’) have often overtaken the size and importance of the ‘putatively more autonomous’ specialized agencies (Verdirame, The UN and Human Rights: Who Guards the Guardians? (2011), 18, relying on Dagory, ‘Les rapports entre les institutions spécialisées et l’organisation des Nations Unies’ (1969) 73 RG 283, at 286). 16

  For example, the Secretariats (sometimes known as the Offices or International Bureaux) of the ILO, the UPU, WIPO, and UNESCO are led by a Director-General; the Secretariats of UNWTO and the IMO are led by a Secretary-General. The World Bank Group specialized agencies (IBRD, IDA, and IFC) are led by the World Bank Group President. See Klein, ‘United Nations, Specialized Agencies’ in MPEPIL (August 2006), paras 40–5 regarding the functions of the Secretariats and Secretaries-General. 17

  Goodrich, n 12, 216. Specialized agencies are generally financed by assessed contributions from governments (Williams, n 15, 43). One exception is WIPO, which acts as a registrar and administrator for a number of international agreements, and which generates funding that allows it to remain largely independent of state funding (May, World Intellectual Property Organization (WIPO): Resurgence and the Development Agenda (2007), 13). For an overview of the nature of the principal organs of the specialized agencies, see Klein, n 16, paras 31–47. 18

  Certain ‘Specialized American Agencies’ exist under the Charter of the Organization of American States, eg the Pan American Health Organization (PAHO) and the Inter-American Institute for Cooperation on Agriculture (IICA) (see at http://www.oas.org/en/about/ specialized_organizations.asp). Szasz notes that an intergovernmental organization like the Asian Development Bank ‘is an essentially regional international financial institution and

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consequently does not belong in a family of essentially universal organizations (Szasz, n 13, 39). 19

  Meng, n 12, 1619, para 10.

20

  ibid, 1618, paras 8–9.

21

  See discussion of the mandates in section 9, ‘Overview of mandates’. See also Röben, who, in considering the wording of an identical list of topics under Art 62 of the UN Charter, posits: ‘The list of related matters is notably not frozen in time but encompasses matters that have emerged only later.’ He gives the example of environmental protection (Röben, ‘Article 62’ in Simma et al (eds), n 12, 1678, at 1679–80, para 3). 22

  UN Charter, Arts 57(1) and (2) and 63.

23

  The Repertory of Practice of United Nations Organs notes that the wording of the Charter is somewhat contradictory on this point: ‘[N]ote should be taken of an apparent verbal difficulty in the text of Article 57. Paragraph 1 refers to organizations established by inter-governmental agreement and having wide international responsibilities in certain fields as “specialized agencies” to be brought into relationship with the United Nations, whereas paragraph 2 suggests that only after this relationship has been established does the term “specialized agencies” apply. Despite this ambiguity, it has been the practice to consider as specialized agencies only those organizations which have been brought into relationship with the United Nations through agreements concluded in accordance with the provisions of Article 63’ (UN RP (1945–54) vol III, Art 57, p 121, fn 1). See also Manin, ‘Article 63’ in La Charte des Nations Unies (eds Cot, Forteau, and Pellet, 2005), 977. Szasz notes that the IAEA could not become a specialized agency principally because its relationship agreement was not negotiated with ECOSOC (Szasz, n 13, 38). See also the discussion on intergovernmental organizations that have not become specialized agencies at sections 4.2, ‘Agencies of a similar nature’ and 4.3, ‘Other organizations’. 24

  Goodrich, n 12, 216.

25

  For a brief discussion of the IRO, see section 4.1, ‘Generally’.

26

  UN RP (1945–54) vol III, Art 63, p 327.

27

  GA Res 50 (I) (1946). The resolution was passed on 14 December 1946; consequently, FAO became a specialized agency on that day, the FAO Conference having previously approved the draft agreement in September 1946 (UN RP (1945–54) vol III, Art 63, p 332). 28

  GA Res 50 (I) (1946). The resolution was passed on 14 December 1946; consequently, the ILO became a specialized agency on that day, the ILO Conference having previously approved the draft agreement on 2 October 1946 (UN RP (1945–54) vol III, Art 63, p 330). 29

  GA Res 50 (I) (1946). The approval for the agreement with the ICAO was conditional on that organization’s complying with any decision by the Secretary-General as regards Franco’s Spain (see discussion on the General Assembly’s approach to the membership of Franco’s Spain in the specialized agencies at section 5.2.2, ‘Spain’. The draft agreement was approved by the Assembly of the ICAO on 13 May 1947, and because the ICAO had taken action to comply with the UN recommendations regarding Franco’s Spain on that day, the Secretary-General declared the agreement to have come into force on that day (UN RP (1945–54) vol III, Art 63, pp 333–4). 30

  GA Res 50 (I) (1946). The agreement entered into force on 14 December 1946, the date of the resolution, as the draft agreement had previously been approved by the first General Conference of UNESCO on 6 December 1946 (UN RP (1945–54) vol III, Art 63, p 331).

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31

  GA Res 124 (II) (1947). The agreement was accepted by the first World Health Assembly on 10 July 1948 and came into force on that date (UN RP (1945–54) vol III, Art 63, p 336). 32

  GA Res 124 (II) (1947). It came into force on 1 July 1948, the date of entry into force of the revised Universal Postal Convention (UN RP (1945–54) vol III, Art 63, p 335). 33

  GA Res 124 (II) (1947). The draft agreement was approved by the Plenipotentiary Conference of the ITU on 4 September 1947. The agreement came into force provisionally on 15 November 1947 (upon approval by the General Assembly), pending ratification of the International Telecommunication Convention. The relationship agreement came into force on 1 January 1949 (UN RP (1945–54) vol III, Art 63, p 337). 34

  GA Res 124 (II) (1947). The resolution was passed on 17 November 1947; consequently, the agreement came into force on that date, having been previously approved by the Bank’s Board of Governors on 16 September 1947 (UN RP (1945–54) vol III, Art 63, p 340). 35

  GA Res 124 (II) (1947). The resolution was passed on 17 November 1947 and the agreement came into force on that date, having been previously approved by the Fund’s Board of Governors on 17 September 1947 (UN RP (1945–54) vol III, Art 63, p 340). 36

  GA Res 205 (III) (1948). The resolution was passed on 18 November 1948 and the agreement came into force on that date, having been previously approved by the General Council of the IRO on 15 September 1948 (UN RP (1945–54) vol III, Art 63, p 341). 37

  The agreement was approved by the General Assembly on 18 November 1948 (GA Res 204 (III) (1948)), and the stipulations of the agreement were implemented ‘on a working basis’ (UN RP (1945–54) vol III, Art 63, p 342). However, the agreement did not enter into force until 13 January 1959 (UN RP Supp no 2 (1955–59) vol III, Art 63, p 107), as, until then, the Convention on the Inter-Governmental Maritime Consultative Organization lacked the required number of ratifications. The name was changed in 1982 to the International Maritime Organization (IMO) (see at http://www.imo.org/en/About/HistoryOfIMO/Pages/ Default.aspx). 38

  The WMO became a specialized agency on 20 December 1951, when its agreement was approved by the General Assembly (GA Res 531 (VI) (1951); UN RP (1945–54) vol III, Art 63, p 343). 39

  The IFC Articles of Agreement entered into force on 20 July 1956, and Art IV (f) provided for the IFC, acting through the World Bank, to enter into formal arrangements with the UN. On 31 January 1957, the draft agreement was approved by the Board of Governors of the Bank and of the IFC, and on 20 February 1957 the General Assembly approved the agreement (GA Res 1116 (XI) (1957); UN RP Supp no 2 (1955–59) vol III, Art 63, pp 107–8). The relationship agreement between the UN and the IFC was in a form virtually identical to that between the IBRD and the UN (UN RP Supp no 2 (1955–59) vol III, Art 63, pp 108–11). 40

  The relationship agreement between the IDA and the UN was approved by the Board of Governors of the IDA on 24 February 1961, and by the General Assembly on 27 March 1961 (GA Res 1594 (VI) (1961); UN RP Supp no 3 (1959–66) vol II, Art 63, p 405). Other than the preamble and three articles that dealt with the matters of liaison, the agreement was the same as that between the IBRD and the UN (UN RP Supp no 3 (1959–66) vol II, Art 63, p 405). 41

  Szasz, n 13, 36.

42

  GA Res 3346 (XXIX) (1974) and Annex.

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43

  GA Res 32/107 (1977). IFAD wanted to be classed alongside the IMF and the World Bank specialized agencies (IBRD, IDA, and IFC), and argued that, like them, it should not have to join in any common system of staff administration. This was rejected by the General Assembly, and only after IFAD accepted the General Assembly’s invitation to participate in the common system was the amended relationship agreement approved by the General Assembly (Szasz, n 13, 36–7). 44

  GA Res 31/161 (1976).

45

  GA Res 2089 (XX) (1965).

46

  This was the first and only time in UN history that such a conversion took place. UNIDO was to become a specialized agency in order to ‘enhance its autonomy, increase its ability to render assistance to developing countries… and improve its operational efficiency and effectiveness’ (GA Res 3362 (S-VII) (1975); GA Res 31/161 (1976); GA Res 32/167 (1977); and GA Res 33/161 (1978)). See also Bretton, ‘La transformation de l’O.N.U.D.I. en Institution spécialisée des Nations Unies’ (1979) 25 AFDI 567. 47

  GA Res 40/180 (1985). The UN Secretary-General prepared a draft constitution for UNIDO, which the General Assembly referred to the Intergovernmental Committee of the Whole to Draw up a Constitution for UNIDO as Specialized Agency. The revised draft was referred to a plenipotentiary conference and adopted on 8 April 1979. ‘The objections and doubts of industrialized countries as to the necessity of a specialized agency contributed to delaying the ratification process’ (Bredel and Kitaoka, ‘United Nations Industrial Development Organization (UNIDO)’ in MPEPIL (April 2007), para 5). There needed to be at least 80 ratifications for the UNIDO Constitution to enter into force and, in addition, ratifying states had to agree that the Constitution should enter into force. The formal requirements were fulfilled on 21 June 1985 and the relationship agreement was approved by the General Assembly in December 1985 (ibid, paras 5–6). 48

  Szasz notes that the main reason for this is that most new intergovernmental organizations (except the World Trade Organization (WTO) and possibly the International Seabed Authority) do not fulfil the subject-matter requirements of Art 57(1) of the UN Charter. Moreover, some of them, such as the Organization for the Prohibition of Chemical Weapons (OPCW) and the Comprehensive Nuclear Test-Ban Treaty Organization (CTBTO)— currently known as the Preparatory Commission for the Comprehensive Nuclear Test-Ban Organization, as the Treaty establishing it is not yet in force (see at https://www.ctbto.org/ specials/who-we-are/)—‘deal with questions of military security and it would be inappropriate for them to coordinate activities through ECOSOC or ECOSOC-created machinery’ (Szasz, n 13, 41). He also notes that it would also be inappropriate for the International Tribunal for the Law of the Sea (ITLOS) and the International Criminal Court (ICC) to become specialized agencies of the UN (ibid, 41). In addition, Szasz notes that some states or administrators may deem adherence to the common system an unwanted burden—some finding salaries and benefits too expensive, and others finding them not sufficiently generous—and that some states are resisting the relatively high level of privileges and immunities afforded to specialized agencies (ibid, 42). Note, however, that in 2002, the Council of the International Migration Organization (IOM), began consideration of whether it should become a specialized agency. It has not done so. See discussion in section 4.3, ‘Other organizations’. 49

  Szasz notes that some of these intergovernmental organizations have concluded relationship agreements with the UN that resemble those entered into by specialized agencies, and that some benefit from features of the specialized agency system, such as use of the UN laissez-passer or participation in the UN Joint Staff Pension Fund. He gives the examples of the International Seabed Authority and the ITLOS (each of which has a relationship agreement with the UN but without the participation of ECOSOC) and the OPCW (which has been authorized to issue laissez-passers to members of its inspection From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

teams (GA Res 51/230 (1997)) (Szasz, n 13, 40). See also the IOM, which became a ‘Related Organization of the UN’ in 2016 (section 4.3, ‘Annual themes’). 50

  In 1969, the General Assembly recommended the conversion of the International Union of Official Travel Organizations, an NGO, into an intergovernmental organization through a revision of its statutes, and called for the converted organization to enter into a relationship agreement with the UN (GA Res 2529 (XXIV) (1969)). It was clear that what was envisaged at this stage was something short of specialized agency status. See the Legal Advice of the Office of the Legal Counsel regarding the manner in which the relationship agreement between UNWTO and the UN should be negotiated, where it is noted that it was not intended that UNWTO’s relationship with the UN be as a specialized agency but rather as ‘a new kind of relationship… exercising functions of an economic and social nature and giving [UNWTO] a status vis-à-vis the Council broader than that which derives from rule 79 of the rules of procedure of the Council [ie intergovernmental organizations either accorded permanent observer status or so designated by ECOSOC]’ ([1977] UN Juridical YB 215). 51

  GA Res 58/232 (2003). This was done in consideration of ECOSOC Res 2003/2 (2003), which contained a draft agreement (UN RP Supp no 10 (2000–09) vol IV, Art 63, p 2). See Szasz, n 13, 38–9 for a description of UNWTO’s previous relationship with the UN. 52

  GA Res 205 (III) (1948).

53

  UN RP (1945–54) vol III, Art 57, p 122, fn 4.

54

  Klein, n 16, para 12.

55

  UN RP (1945–54) vol III, Art 59, pp 158–9.

56

  ibid, p 159. Although the Havana Charter failed to come into force, ICITO was never abolished and remains in existence to this day. 57

  ibid.

58

  Williams, n 15, 3.

59

  Goodrich, n 12, 213, fn 26. Meng takes the view that the reason the GATT was never granted the formal status of a specialized agency, despite its being something of a substitute for the ITO, was because it lacked an ‘independent body with organs of its own and with proper tasks conferred by a founding treaty under public international law’ (Meng, n 12, 1617–78, para 4). 60

  Agreement establishing the World Trade Organization, 15 April 1994, 1867 UNTS 3, 1868 UNTS 3 (continued), 1869 UNTS 3 (continued). 61

  ibid, Art II(1).

62

  For example, by the United Nations Chief Executives Board for Coordination (CEB) (see at http://www.unsceb.org/content/member-organizations). 63

  Szasz, n 13, 38. He also describes the IAEA as a ‘quasi’ specialized agency (ibid, 41).

64

  Goodrich, n 12, 213, fn 25.

65

  Szasz, n 13, 38.

66

  ibid, 42, citing the Agreement on the Privileges and Immunities of the International Atomic Energy Agency, 1 July 1959, 374 UNTS 147. 67

  For example, by the CEB (see at http://www.unsceb.org/content/member-organizations).

68

  See the IOM’s website at https://unobserver.iom.int/about-us.

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69

  Signed in Geneva on 25 June 1996. A Memorandum of Understanding was signed between the IOM and the UNHCR in 1997 to facilitate cooperation between the two organizations (UN High Commissioner for Refugees, Memorandum of Understanding between the United Nations High Commissioner for Refugees and the International Organization for Migration, 15 May 1997 (available at http://www.refworld.org/docid/ 3ae6b31a70.html). The IOM has numerous agreements with partner agencies, ‘including with most UN agencies with migration-related interests, such as the World Health Organization (WHO), the United Nations Entity for Gender Equality and the Empowerment of Women (UN Women), UNICEF, and the UN Population Fund (UNFPA). The IOM and the ILO have also had close working relationships’ (Martin, International Migration: Evolving Trends from the Early Twentieth Century to the Present (2014), 149). 70

  Martin, n 69, 150.

71

  ibid, relying on International Organization for Migration, ‘IOM–UN Relationship: Summary Report of the Working Group on Institutional Arrangements’, 10 November 2003 (MC/INF/263). 72

  ibid, para 63. Among the listed benefits were membership in the United Nations Chief Executives Board for Coordination and its committees, improved legal status for the IOM and its staff under the 1947 Convention on Privileges and Immunities of Specialized Agencies, and possible additional funding. 73

  ibid, para 61. For example, as a specialized agency, the IOM would be required to participate in numerous additional UN bodies, be expected to submit an annual report to ECOSOC and, through it, the General Assembly, and be expected to submit its administrative budget to the Advisory Committee on Administrative and Budgetary Questions (ACABQ), ‘at least for information purposes’ (ibid). 74

  Martin, n 69, 151. Martin noted that many member states believed that the IOM’s flexibility would be hampered by joining the UN. She cited the view that the UN Charter and the body of international institutional law associated with the UN ‘meant that UN agencies appeared to be more independent of state will than [the] IOM’. She further noted that the UN bureaucracy was generally seen as more cumbersome than that of the IOM (though the IOM uses the UN personnel system and generally follows its auditing procedures) (ibid). 75

  For example, in 2006 the General Assembly held a High-Level Dialogue on International Migration and Development and adopted a resolution on the subject (GA Res 61/208 (2006)). A High-Level dialogue—‘Making Migration Work’—was held at the General Assembly’s 68th session in 2013 (see at http://www.un.org/en/ga/68/meetings/migration/). 76

  In 2007, a further analysis of the advantages and disadvantages of specialized agency status for the IOM was undertaken (Martin, n 69, 151). 77

  In a statement made in April 2016, Deputy Secretary-General Jan Eliasson called for a closer working relationship between the UN and the IOM, noting that it was ‘not only natural and desirable, it is also needed for achieving [the UN’s] development goals for 2030’ (UN, ‘Deputy Secretary-General Asks General Assembly to Consider Closer Partnership with International Organization for Migration to Tackle Growing Challenges’, UN Doc DSG/SM/958-SAG/479, 18 April 2016, available at http://www.un.org/press/en/ 2016/dsgsm958.doc.htm). According to the Deputy Secretary-General: ‘In November 2015, the IOM Council asked its Director-General to investigate how the legal relationship between the UN and IOM could be improved. The Secretary-General is now seeking the approval of the General Assembly to enter into substantive negotiations over a new legal relationship. The Secretary-General has asked that a new item be included in the agenda of

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the seventieth session of the Secretary-General. If approval by the General Assembly is granted, the Secretary-General will enter into negotiations with IOM.’ 78

  GA Res 70/296 (2016). The purpose of the Agreement is to define ‘the terms on which the United Nations and the International Organization for Migration shall be brought into relationship with each other in order to strengthen their cooperation and enhance their ability to fulfil their respective mandates in the interest of migrants and their Member States’ (GA Res 70/296 (2016), Annex, ‘Agreement concerning the Relationship between the United Nations and the International Organization for Migration’, Art 1). 79

  See at https://www.iom.int/.

80

  Szasz, n 13, 41.

81

  See n 49.

82

  See n 49. The Statute of the ICC (the Rome Statute) was adopted in 1998 and entered into force in 2002. While the Rome Statute was negotiated within the UN system, it is independent of the UN. Art 2 of the Rome Statute provides that the Court shall be brought into a relationship with the UN, and such an agreement was entered into in 2004 (UN Doc A/58/874). The General Assembly approved the relationship agreement in 2004 (GA Res 58/318 (2004)). For a discussion of the ICC, see ch 31, ‘Criminal Tribunals Established by, or in Relationship with, the UN’ particularly section 3, ‘The International Criminal Court’. 83

  For example, Art 12 of the UN–ICC relationship agreement provides that certain Court officials ‘shall be entitled, in accordance with such special arrangements as may be concluded between the Secretary-General and the Court, to use the laissez-passer of the United Nations as a valid travel document where such use is recognized by States in agreements defining the privileges and immunities of the Court’. See also Art 9 of the Agreement on Cooperation and Relationship between the United Nations and the International Tribunal for the Law of the Sea, 18 December 1997, 2000 UNTS 467, and Art 15 of the Agreement concerning the Relationship between the United Nations and the International Seabed Authority, 14 March 1997, 1967 UNTS 255. 84

  ‘By permitting each agency to have its own separate membership, it allows those states desiring to establish and cooperate for a particular purpose to do so without being held back by unwilling states. Thus, the World Bank and its related financial institutions and the Monetary Fund could be set up and function with only a part of the members of the United Nations participating and with some states, such as Switzerland and the Federal German Republic, participating without being members of the United Nations’ (Goodrich, n 12, 217). The UPU had originally had one of the most open membership policies and allowed any country to accede to its Convention by a unilateral declaration. This policy changed in 1948 after it became a specialized agency (Duxbury, The Participation of States in International Organizations: The Role of Human Rights and Democracy (2011), 230). 85

  For example, Art II(1) of the UNESCO Constitution provides: ‘Membership of the United Nations Organization shall carry with it the right to membership of the United Nations Educational, Scientific and Cultural Organization.’ In addition, the constitutions of IMO, UNIDO, IFAD, WHO, ICAO, UPU, ITU, WMO, and WIPO provide that member states of the UN have an automatic right of accession, but require others to be admitted (Meng, ‘Article 63’ in Simma et al (eds), n 12, 1698, at 1699, para 9). 86

  With the ICAO, the General Assembly may recommend refusal, and this is binding on the organization (ibid). 87

  While universal membership is seen as a means by which the specialized agencies can enhance their mandates, this has ‘not prevented states from using membership issues as a vehicle for expressing their distaste for the policies of an agency or a particular state, or to protect their own place in the international community’ (Duxbury, n 84, 226–7). See section

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5.2, ‘Denial of membership, suspension or expulsion, denial of privileges, and criticism of policies’. 88

  http://www.fao.org/about/who-we-are/en/.

89

  http://www.worldbank.org/en/about/leadership/members.

90

  http://www.icao.int/about-icao/Pages/member-states.aspx.

91

  http://www.worldbank.org/en/about/leadership/members.

92

  http://www.ifad.org/governance/ifad/ms.htm.

93

  http://www.worldbank.org/en/about/leadership/members.

94

  http://www.ilo.org/public/english/standards/relm/country.htm.

95

  http://www.imf.org/external/np/exr/facts/glance.htm.

96

  http://www.imo.org/en/About/Membership/Pages/Default.aspx.

97

  https://www.itu.int/online/mm/scripts/mm.list?_search=ITUstates&_languageid=1.

98

  http://en.unesco.org/countries/member-states.

99

  http://www.unido.org/member_states.html.

100

  http://www2.unwto.org/content/who-we-are-0.

101

  http://www.upu.int/en/the-upu/member-countries.html.

102

  http://www.who.int/countries/en/.

103

  http://www.wipo.int/members/en/.

104

  https://public.wmo.int/en/about-us/members.

105

  Constitutions providing for associate membership include those of the FAO, UNESCO, WHO, ITU, IMO, and UNWTO (Klein, n 16, para 24). 106

  The UN Legal Adviser noted that ‘[t]he question of an applicant’s eligibility for membership in UNIDO will ultimately be decided by the members of UNIDO’. Responding to the view held by some members that Palestine did not have all the attributes required by international law for an entity to constitute a sovereign state, the Legal Adviser cited the precedent of Namibia’s admission to UNIDO ([1989] UN Juridical YB 373). 107

  One exception to this is the WHO, which requires a simple majority. See the discussion at para 7.21. 108

  GA Res 31/149 (1976). In 1967, the UN General Assembly created the United Nations Council for Namibia (originally known as the UN Council for South West Africa) to administer Namibia pending the achievement of independence. 109

  Schermers and Blokker, International Institutional Law: Unity within Diversity (2011), 67. 110

  The ILO ‘decided to admit Namibia, it being agreed that, until the present illegal occupation of Namibia is terminated, the United Nations Council for Namibia…will be regarded as the Government of Namibia for the purpose of the application of the Constitution of the Organization’ (International Labour Conference, 64th session, Record of Proceedings, Resolution 5, pp 50–1 (1978), as cited by Quigley, The Statehood of Palestine: International Law in the Middle East Conflict (2010), 222–3). 111

  International Labour Conference, 64th session, Provisional Record of Proceedings, no 24 at 20–22 (1978). The Legal Adviser relied on the findings of the Permanent Court of International Justice (PCIJ) in the Danzig case, where the Court held that the Free City of Danzig was not eligible for ILO membership as the conduct of its foreign relations was

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subject to the consent of Poland (Free City of Danzig and the ILO, PCIJ, Series B, No 18, 1930, at 13–15). 112

  [1989] UN Juridical YB 373. The issue of whether to accord Namibia full membership in the light of the General Assembly resolution was also discussed in WMO—though it was opposed by the US and others on the grounds that ‘the Conventions of scientific organizations are not to be amended for political purposes’ (Williams, n 15, 64). 113

  Schermers and Blokker, n 109, 67. See Osieke, ‘Admission to Membership in International Organizations: The Case of Namibia’ (1981) 51 BYIL 189, at 213. 114

  See letter from Yasser Arafat to the Director General of the WHO of 1 April 1989, reproduced in (1990) 6 Palestine YIL 128. 115

  Including the FAO, ILO, ITU, and UNESCO (Kirgis, ‘Standing to Challenge Human Endeavors that could Change the Climate’ (1990) 84 AJIL 225, at 218). 116

  WHO Constitution, Art 6.

117

  In 1974, the General Assembly had invited the PLO to participate as an observer in the General Assembly (GA Res 3237 (XXIX) (1974)). By GA Res 43/177 (1988), the General Assembly acknow-ledged that the Palestinian National Council had proclaimed the State of Palestine, affirmed the need to enable the Palestinian people to exercise sovereignty over the occupied territories, and changed the PLO’s designation to ‘Palestine’ in the UN system (Kirgis, n 115, 219–20). 118

  Kirgis, n 115, 219.

119

  ‘Resolution WHA 43.1, 10 May 1990: Request of Palestine for Admission as a Member of The World Health Organization’ (1990) 6 Palestine YIL 136. 120

  ibid, 136–7. However, in 2000, prompted by the General Assembly’s granting of observer status to Palestine in 1998, the WHA adopted a resolution to ‘confer upon Palestine in the World Health Assembly and other meetings of the World Health Organization, in its capacity as an observer, the rights and privileges described in the… resolution of the United Nations General Assembly’ (Lee, The World Health Organization (2009), 24). 121

  [1989] UN Juridical YB 372.

122

  ibid, 373. See also Kirgis, who, while finding the Namibia precedent ‘not entirely convincing’, notes that ‘it is not entirely fanciful to think that a “state” for purposes of administration to a specialized agency might be something other than a “state” for purposes of customary international law’, and that it is generally left to each organ of an intergovernmental organization to interpret the relevant parts of its constituent instrument (Kirgis, n 115, 220). 123

  See ‘Membership of the Palestine Liberation Organization in United Nations Agencies’, Pub L 101–246, Title IV, §414, 16 February 1990, 104 Stat 70 (101st Congress, 2/16/90); ‘Limitation on Contributions to the United Nations and Affiliated Organizations,’ Pub L 103– 236, Title IV, §410, 30 April 1994, 108 Stat 454 (103rd Congress, 4/30/94). 124

  UN Doc A/66/371–S/2011/592, 23 September 2011.

125

  Palestine did, however, gain non-member state status in November 2012 (GA Res 67/19 (2012)). 126

  UNESCO Constitution, Art II(2).

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127

  On 31 October 2011, UNESCO’s General Conference officially approved Palestinian membership with a vote of 107 in favour, 14 against, and 52 abstentions. See at http:// www.un.org/apps/news/story.asp?NewsID=40253#.WH-B5_mLRdg. 128

  ‘Conferences convened under the ‘Vienna’ formula provide for the participation of both member states and states members of specialized agencies. The ‘Vienna’ formula has long been understood to be a mechanism to provide for treaty or conference participation by an entity the status of which may be in dispute’ ([2012] UN Juridical YB 469). 129

  ‘As the General Assembly has never treated Palestine as a State but as a sui generis entity, Palestine cannot fall under the “all States” formula and should continue to participate as an observer entity in such Conferences.’ This is in contrast to the Holy See, which ‘has always been treated by the Assembly as an Observer State and thus falls under the “all States” formula’ (ibid, 468–9). 130

  In doing so, the Secretary-General does not undertake an analysis himself of the status of the entity; rather, with the ‘all States’ formula, he follows the practice of the General Assembly, and with the ‘Vienna’ formula he simply determines ‘whether, as a matter of fact, the entity had been admitted to the specialized agency on the basis that it is a State’ (ibid, 469). As regards Palestine’s participation in the conferences in question, the Legal Office noted that because the Geographical Names Conference had previously been convened under the ‘Vienna’ formula, it recommended that Palestine participate as a full member; but since the Small Arms Conference was to be convened under the ‘all States’ formula, Palestine should participate as an observer entity (ibid). 131

  [2008] UN Juridical YB 459.

132

  Brunwasser, ‘Unesco Rejects Kosovo Membership in a Victory for Serbia’, New York Times (9 November 2015), available a https://www.nytimes.com/2015/11/10/world/europe/ unesco-rejects-kosovo-membership-in-a-victory-for-serbia.html?_r=0 The vote was 92:50, with 29 abstentions. 133

  Duxbury notes that the actions ‘of the UPU in relation to Spain and South Africa and the attempt to exclude Israel from the ITU cannot be sustained by the respective constitutions’ in view of the absence of provisions allowing this (Duxbury, n 84, 245). While some take the view that expulsion or suspension may be covered by the doctrine of implied powers, many authorities reject this (see, eg, Magliveras, Exclusion from Participation in International Organizations: The Law and Practice behind Member States’ Expulsion and Suspension of Membership (1999), 254; and Duxbury, n 84, 244–6). 134

  For example, Portugal was not invited to ICAO meetings for ‘as long as the Government of Portugal refuses to implement the United Nations General Assembly Resolutions on the Granting of Independence to Colonial Countries and Peoples’ (Resolution A19-2 of 1 March 1973 (ICAO Doc 9061)). Similarly, Myanmar was excluded from certain ILO meetings following a Commission of Inquiry into the use of forced labour there (‘Resolution on the Widespread Use of Forced Labour in Myanmar’, 87th session, ILO Conference, June 1999, available at http://www.ilo.org/public/english/standards/relm/ilc/ilc87/com-myan.htm). 135

  As independent organizations, specialized agencies are fully competent to take credentials decisions by themselves. Examples of where this has presented difficulties include the WHO’s Annual Assembly in 1993, where credentials were received from two competing representatives of the Government of Zaire, and its Credentials Committee decided to accept the credentials of both parties, a situation which, as stressed by Schermers and Blokker, was highly unsatisfactory. When the ILO was confronted with the same problem, it decided it had to choose, noting that ‘as a general practice, permanent missions accredited by the United Nations in Geneva are recognized by the ILO as one of the authorities empowered to issue credentials of the International Labour Conference’ (Schermers and Blokker, n 109, 206). See also a legal opinion of 2 February

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2011, which considered how to deal with the presentation of competing credentials for Côte d’Ivoire, Niger, and Tunisia at the FAO Governing Council meeting. The opinion indicated that, unless the credentials previously presented contained ‘language limiting the application of the presumption of ongoing validity’, they would be presumed valid, unless challenged ([2011] UN Juridical YB 526). 136

  Williams, n 15, 56. For example, Latin American states have objected to the UK’s credentials, arguing that it was not entitled to speak for the Falkland Islands or Gibraltar; and China, in the general debates of UNESCO and UNIDO, has criticized the Soviet’s ‘hegemonism’ (ibid, 56–7). 137

  The importation of certain political issues into the specialized agencies ‘is a measure of the long-standing frustration which the participants feel at their failure to make any progress in dealing with them in the proper place, or places’ (ibid, 57). 138

  Duxbury, n 84, 234–5.

139

  For example, Art 1(1) of the UNESCO Constitution states that one of its purposes is ‘to further universal respect for justice, for the rule of law and for human rights and fundamental freedoms which are affirmed to the people of the World without distinction of race, sex, language or religion, by the Charter of the United Nations’. Williams describes UNESCO as the most political of the UN specialized agencies (Williams, n 15, 62). 140

  ibid, 57.

141

  GA Res 39 (I) (1946).

142

  As noted, the ICAO existed as an international organization before becoming a UN specialized agency (see n 8). 143

  UN RP (1945–54) vol III, Art 63, pp 333–4; GA Res 50 (I) (1946). Only once that organization took action to comply with the condition was the relationship agreement approved, resulting in the ICAO’s becoming a specialized agency (UN RP (1945–54) vol III, Art 63, p 334) (see n 29). Because the constitutive document, the Chicago Convention, did not contain a provision on expulsion, it had to be amended. An amendment was agreed allowing for Spain’s membership to cease and, pending its entry into force, Spain voluntarily left the organization (Duxbury, n 84, 229–30, relying on ‘Commentary to Article 11’ in the Constitution and General Regulations of the UPU, p A.13). 144

  UN RP (1945–54) vol III, Art 63, p 337 (see n 33).

145

  In 1947, the Secretary-General, citing GA Res 39 (I) (1946), requested that France consider not inviting the Franco Government to attend the Paris Congress of the UPU, and France acceded to this request. Duxbury notes that the action was potentially illegal, given the fact that the Buenos Aires Convention provides that delegates of the Union’s membership had the right to participate in UPU congresses (Duxbury, n 84, 230). 146

  Duxbury notes that ‘animosity towards Spain decreased and in 1950 the US altered its previous position due to international events, including the situation in Korea’ (ibid, 231, relying on Sohn, ‘Expulsion or Forced Withdrawal from an International Organization’ (1964) 77 HLR 1381, at 1403). 147

  GA Res 39 (I) (1946).

148

  GA Res 386 (V) (1950).

149

  Williams, n 15, 57.

150

  The issue of Israel is said to have become ‘almost traditional in the WHO’ (ibid, 57–8, 63).

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151

  ibid, 66.

152

  ibid, 64–5.

153

  ibid, 63.

154

  ibid, 73, and the sources cited.

155

  ibid and the sources cited.

156

  South Africa was long an important issue for the WHO, which passed resolutions accusing the Government of using military attacks to destabilize the governments of border states and called for the South West Africa People’s Organization (SWAPO) to be recognized as the ‘sole legal representative of the Namibian people’ (ibid, 64). After the WHO General Congress decided to suspend South Africa’s voting privileges and called for it to be suspended or expelled, South Africa withdrew from the session (Schermers and Blokker, n 109, 116). 157

  Williams, n 15, 73, and the sources cited therein.

158

  In 1961, the ILO requested that South Africa withdraw. See Schermers and Blokker, n 109, 117, relying on International Labour Conference (45th Session) Resolution V: Resolution Calling for the Withdrawal of the Republic of South Africa from Membership of the International Labour Organization, on the Grounds of the ‘Apartheid’ (Racial Discrimination) Policy Practised by the Government of the Republic (Geneva, 29 June 1961). 159

  Williams, n 15, 73, and the sources cited therein.

160

  ibid.

161

  ‘In fact, this meant exclusion from the organization, but it was not officially presented as expulsion’ (Schermers and Blokker, n 109, 116) 162

  ibid, 117; Wasserman, ‘WIPO: The Exclusion of South Africa?’ (1980) 14 Journal of World Trade 78. 163

  Though it was the subject of a declaration during the drafting of the WHO Constitution (see Proceedings of the International Health Conference, 1946 (Official Records WHO, No 2, pp 26, 74, as cited by Schermers and Blokker, n 109, 103)). 164

  See, eg, the letter from Henry Kissinger to the Director-General of the ILO of 6 November 1975, where he advised of the intention of the US to withdraw from the organization and noted the view that it ‘had become increasingly and excessively involved in political issues which are quite beyond the competence and mandate of the Organization’ ((1975) 14 ILM 1582). 165

  Art I (5) of the ILO Constitution provides: ‘No Member of the International Labour Organization may withdraw from the Organization without giving notice of its intention so to do to the Director-General of the International Labour Office. Such notice shall take effect two years after the date of its reception by the Director-General, subject to the Member having at that time fulfilled all financial obligations arising out of its membership.’ See Beigbeder, ‘The United States’ Withdrawal from the International Labour Organization’ (1979) 34 Relations industrielles/Industrial Relations 223. 166

  In 1949 and 1950, the following states announced their withdrawal from the WHO: USSR, 12 February 1949; Ukraine SSR, 14 February 1949; Byelorussian SSR, 19 February 1949; Bulgaria, 29 November 1949; Romania, 20 February 1950; Albania, 25 February 1950; Czechoslovakia, 14 April 1950; Hungary, 19 May 1950; and Poland, 15 August 1950. China withdrew on 7 May 1950 (Schermers and Blokker, n 109, 104).

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167

  From the text of the USSR telegram to the Executive Board of the WHO (available at http://apps.who.int/iris/bitstream/10665/113070/1/EB3_52_eng.pdf), as cited in Goodman, International Health Organizations and their Work (1971), 203. 168

  Siddiqi, World Health and World Politics: The World Health Organization and the UN System (1995), 105. 169

  The US withdrew from UNESCO in 1984, only to rejoin in 2003, and the UK withdrew in 1985, rejoining in 1997. The US withdrew ‘over charges that the organization then was corrupt, anti-Israel and anti-Western and wanted to regulate the international news media’ (Erlanger and Sayare, ‘Unesco Accepts Palestinians as Full Members’, New York Times (31 October 2011), available at http://www.nytimes.com/2011/11/01/world/ middleeast/unesco-approves-full-membership-for-palestinians.html). Poland, Hungary, and Czechoslovakia left UNESCO in 1953. Portugal left UNESCO in 1971. See http:// en.unesco.org/countries. See generally Dutt, The Politicization of the Specialized Agencies: A Case Study of UNESCO (1995); Saunders, Membership in the United Nations and Its Specialized Agencies: Analysis With Select Coverage of UNESCO and the IMF (2014). 170

  For example, Spain withdrew from the ICAO pending the entry into force of an amendment to the Chicago Convention designed to exclude it. See discussion at n 143. Similarly, in 1964, the General Congress of the ILO adopted an amendment to its Constitution allowing it to expel a member state that was guilty of pursuing a policy of racial discrimination. South Africa did not wait for the entry into force of the provision; instead it withdrew from the ILO (Schermers and Blokker, n 109, 115). As noted in section 5.2.4, ‘South Africa’, South Africa also withdrew from the FAO and UNESCO at a time when it was being criticized. 171

  Some take the view that their legal personality is not opposable to non-member states, unlike that of the UN (see Verdirame, n 15, 16). 172

  Schermers and Blokker note that ‘The constitution of the UPU contains no specific legal provision on legal personality under municipal law. Not all members of UPU are parties to the Convention on the Privileges and Immunities of the Specialized Agencies, which recognizes the legal personality of the speciailized agencies.’ See Schermers and Blokker, n 109, 1023. 173

  ibid, relying on YBILC, 1967, II, pp 299–302.

174

  Meng divides the relationship agreements into three groups: (i) ‘close relationship agreements’ with most specialized agencies; (ii) ‘less close’ relationship agreements governing the UPU and ITU; and (iii) ‘relatively loose’ relationship agreements with the IMF and the World Bank Group (ie the IBRD, the IDA, and the IFC) (Meng, n 85, 1698, para 4). 175

  Szasz, n 13, 36.

176

  See, eg, Art I of the ILO Relationship Agreement and Art 1 of the UNWTO Relationship Agreement. 177

  See, eg, Art II of the ILO Relationship Agreement and Art 3 of the UNWTO Relationship Agreement. In each case the UN must be invited to attend the meetings of the specialized agency and must be able to participate without vote in the deliberations. Representatives of the specialized agencies are given certain participation rights in relation to meetings of ECOSOC and its commissions and committees, and the General Assembly and its committees and organs. 178

  It is obligatory that the specialized agencies submit the recommendations of the UN to the relevant organ of the specialized agency and report on the consultations; however, that organ is not obliged to accept the recommendation.

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179

  Reporting provisions in the relationship agreements have differed somewhat: with some, ‘regular’ reports are required (eg, ILO, FAO, ICAO, WHO, IRO, UPU, UNESCO, and IMCO); with others, annual reports are required (eg, ITU and WMO); and with yet others, the specialized agencies are merely required to furnish copies of their annual reports and quarterly financial statements (eg, IBRD and IMF) (UN RP (1945–54) vol III, Art 64, p 385). 180

  See, eg, Art XIV of the ILO Relationship Agreement and Art 17 of the UNWTO Relationship Agreement. The specialized agencies are required to consult with the UN in the preparation of their budgets. 181

  See, eg, the Agreement between the UN and the FAO at Art IX(2). See also Art 96(2) of the UN Charter. The website of the ICJ (http://www.icj-cij.org/jurisdiction/index.php? p1=5&p2=2&p3=1) lists the following specialized agencies as having been authorized to request Advisory Opinions: ILO, FAO, UNESCO, WHO, IBRD, IFC, IDA, IMF, ICAO, ITU, IFAD, WMO, IMO, WIPO, and UNIDO. In an apparent oversight, the website fails to include UNWTO, despite that specialized agency’s having been authorized to request Advisory Opinions; see GA Res 58/232 (2003), Annex [‘Agreement between the United Nations and the World Tourism Organization’], Art 10. 182

  The website of the ICJ also lists the IAEA, which it describes as a ‘Related Organization’, as having been authorized to request Advisory Opinions: see at http:// www.icj-cij.org/jurisdiction/index.php?p1=5&p2=2&p3=1. 183

  See, eg, Agreement between the UN and the FAO at Art IX(3) and (4).

184

  Judgements of the Administrative Tribunal of the ILO ICJ Rep 1956, p 77.

185

  Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization ICJ Rep 1960, p 150. 186

  Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt ICJ Rep 1980, p 73; Legality of the Use by a State of Nuclear Weapons in Armed Conflict ICJ Rep 1996, p 66. 187

  Art 34(2) of the Statute of the ICJ provides: ‘The Court, subject to and in conformity with its Rules, may request of public international organizations information relevant to cases before it, and shall receive such information presented by such organizations on their own initiative.’ 188

  Schermers and Blokker, n 109, 440. This function was exercised in a dispute between India and Pakistan (Appeal Relating to the Jurisdiction of the ICAO Council ICJ Rep 1972, p 46). 189

  The fact that a provision regarding the use of the laissez-passer was not included in early relationship agreements was rectified by supplementary agreements in relation to UNESCO, ICAO, FAO, ITU, UPU, and WHO. The ILO did not seek the addition of a provision allowing the laissez-passer, but instead concluded an administrative arrangement on 26 July 1950 by which the Secretary-General, as authorized by s 26 of the Convention on the Privileges and Immunities of the Specialized Agencies, delegated to ILO special powers to issue its own laissez-passer in the same format as that of the UN (UN RP (1945–54) vol III, Art 63, p 365). 190

  See, eg, Art 9 of the UNWTO Relationship Agreement.

191

  UN Charter, Art 60. Art 60 refers to the discharge of the functions in Chapter IX of the Charter, which includes bringing specialized agencies into relationship agreements (Art 57), making recommendations for the coordination of the policies and activities of the

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specialized agencies’ (Art 58), and initiating negotiations among states for the creation of any new specialized agencies required (Art 59). 192

  UN Charter, Art 62(1).

193

  Recommendations have been addressed to specialized agencies ‘generally’, to specialized agencies ‘concerned’, or to particular specialized agencies (UN RP (1945–54) vol III, Art 62, p 226). 194

  Recommendations to the specialized agencies have been made on a wide variety of subjects, including, eg, in the first nine years of the functioning of the organization: the world economic situation, economic reconstruction of devastated areas, economic development of under-developed countries, technical assistance, full employment, production and distribution of newsprint and printing paper, training of apprentices and technical workers, migrant and immigrant labour, migration, the world social situation, community welfare centres, social rehabilitation of the physically handicapped, cartographic services, UN research laboratories, education in statistics, teaching of the purposes and principles of the UN, the structure and activities of the UN and the specialized agencies in member states, availability of insecticides, control of narcotic drugs, agricultural problems, land reform, water resource development, food and famine, conservation and utilization of non-agricultural resources, barriers to the inter-national transport of goods, discrimination in transport insurance, measures to be adopted in connexion with the earthquake in Ecuador, and relations with the intergovernmental organizations (ibid, pp 226–7). More recently, between 1995 and 1999, ECOSOC made recommendations to specialized agencies relating to issues such as granting independence to colonial countries and peoples, Palestinian women, science and technology, children with disabilities, and the administration of juvenile justice (UN RP Supp no 9 (1995–99) vol IV, Art 62, pp 12–13). 195

  ILO Relationship Agreement, Art IV (2).

196

  For example, a 1949 draft ECOSOC resolution that would have recommended that UNESCO approve the application for membership submitted by Ceylon was withdrawn after objections were raised on the ground that the relationship agreement only made reference to a recommendation as regards the rejection of membership applications (UN RP (1945– 54) vol III, Art 62, p 243). 197

  For an overview of practice in these areas see UN RP (1945–54) vol III, Art 63, pp 365– 75. See also UN RP Supp no 1 (1954–55) vol II, Art 63, p 95; UN RP Supp no 2 (1955–59) vol III, Art 63, pp 111–12; UN RP Supp no 3 (1959–66) vol II, Art 63, pp 405–7; UN RP Supp no 4 (1966–69) vol II, Art 63, pp 82–3; UN RP Supp no 5 (1970–78), vol III, Art 63, pp 177–9; UN RP Supp no 6 (1979–84) vol IV, Art 63, pp 174–5; UN RP Supp no 7 (1985–88) vol IV, Art 63, pp 16–23; UN RP Supp no 8 (1989–94) vol IV, Art 63, pp 5–7); UN RP Supp no 9 (1995– 99) vol IV, Art 63, pp 3–12; and UN RP Supp no 10 (2000–09) vol IV, Art 63, pp 8–12. 198

  Meng, n 85, 1705, para 39.

199

  In 1946, ECOSOC, stressing its desire to ‘discharge effectively its responsibility to coordinate the activities of the specialized agencies’, requested the Secretary-General to ‘establish a standing committee of administrative officers of the specialized agencies brought into relationship with the United Nations, for the purpose of taking all appropriate steps, under the leadership of the Secretary-General, to ensure the fullest and most effective implementation of the agreements entered into between the United Nations and the specialized agencies’ (ECOSOC Res 13 (III) (1946)) (see http://www.unsceb.org/content/ ceb).

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200

  Fomerand and Dijkzeul, n 1, 569. The ACC, ‘attended by heads of specialized agencies, was given a mandate to manage and coordinate general activities in economic and social fields of the UN system’ (Alger (ed), The Future of the United Nations System: Potential for the Twenty-First Century (1998), 223). 201

  The ACC had ‘ballooned’ in size and had created ‘a flurry of subsidiary bodies’ (Fomerand and Dijkzeul, n 1, 569). See the CEB website at http://www.unsceb.org/ content/ceb. 202

  The membership of the CEB includes representatives of all 17 of the UN specialized agencies; however, it counts the three World Bank Group specialized agencies—the IBRD, the IDA, and the IFC—as one. In addition, membership consists of the UN itself, the WTO, the IAEA, and 11 funds and programmes created by the UN General Assembly (UNCTAD, UNDP, UNHCR, the United Nations Environment Programme (UNEP), the United Nations Relief and Works Agency for Palestine (UNRWA), UNICEF, UNFPA, the World Food Programme (WFP), the United Nations Office on Drugs and Crime (UNODC), the United Nations Human Settlements Programme (UN-Habitat), and UN Women) (see http:// www.unsceb.org). 203

  Meng, n 85, 1705–6, paras 39–42. He observes that ECOSOC gradually became a ‘mere tool for transmitting information between itself and the operative subsidiary organs of ECOSOC’, and notes that the General Assembly gradually created its own subsidiary organs for coordination between the specialized agencies (ibid, 1705, para 40). For more on the diminished role of ECOSOC, see ch 5, ‘The Economic and Social Council’, particularly section 6, ‘ECOSOC’s relationship with the other principal organs’. 204

  GA Res 68/1 (2013), Annex, para 1.

205

  GA res 68/1 (2013), Annex, paras 7–8.

206

  As noted by Kunig and Tietje, ‘[Article] 64 is indeed essential for the entire task of coordinating economic and social affairs as a central task (and challenge) of the UN as such’ (Kunig and Tietje, ‘Article 64’ in Simma et al (eds), n 12, 1709, at 1709, para 1). 207

  UN RP (1945–54) vol III, Art 64, p 384.

208

  Schermers and Blokker, n 109, 1113, para 1730.

209

  GA Res 125 (II) (1947).

210

  ECOSOC Res 128 A (VI) (1948). ECOSOC subsequently adopted a number resolutions providing further guidance to the specialized agencies as regards their reporting. See UN RP (1945–54) vol III, Art 64, pp 385–6. For a discussion of the modification or attempted modification of the reporting systems, see Kunig and Tietje, n 206, 1713–15, para 11. 211

  Schermers and Blokker, n 109, 1113, para 1730. See ECOSOC Res 2098 (LXIII) (1977).

212

  ‘Efforts are also called for to enhance the transparency of the operations of the agencies. Cooperation and coordination on themes of common interest among the specialized agencies, and where appropriate between these agencies and other bodies of the United Nations system, need to be strengthened. The effectiveness and efficiency of activities of the Council could also be improved by increasing interaction with specialized agencies, including the provision of regular reports to the Assembly, through the Council, in accordance with the relevant provisions of the Charter. In this regard, it will be essential to effectively monitor the follow-up to the conclusions of the Council by the different entities of the United Nations system’ (GA Res 51/240 (1997), Annex, para 268).

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213

  UN Charter, Art 17(3). The General Assembly Rules of Procedure provide that the ACABQ ‘shall examine on behalf of the General Assembly the administrative budgets of specialized agencies and proposals for financial and budgetary arrangements with such agencies’ (GA Rule 157). 214

  UN Charter, Art 96(2).

215

  For example, Rule 11 of the ‘Rules of Procedure of the General Assembly (embodying amendments and additions adopted by the General Assembly up to September 2007)’ UN Doc A/520/Rev.17, April 2008 (hereinafter referred to as ‘GA Rule’ followed by the Rule number), provides that ‘Copies of the notice convening each session of the General Assembly shall be addressed to’ specialized agencies. GA Rule 13(b) provides that the General Assembly’s provisional agenda shall include the reports of specialized agencies. 216

  See para 7.29 regarding the General Assembly’s early efforts in relation to Franco’s Spain. 217

  Verdirame, n 15, 181.

218

  Trusteeship Council, ‘Rules of Procedure of the Trusteeship Council’ (UN Doc T/1/Rev. 7, 1995), Rule 13. 219

  Eg, Art II(5) of the ILO Relationship Agreement or Art II(5) of the WHO Relationship Agreement. 220

  Eg Art VII of the ILO Relationship Agreement or Art VIII of the WHO Relationship Agreement. 221

  See ch 4, ‘Trusteeship Council’.

223

  This division echoes the one established by Williams, n 15, 29–30.

224

  The ‘Bretton Woods institutions’ were created in the aftermath of the Second World War, in 1944, by 43 countries at Bretton Woods, New Hampshire, US, to provide a stable institutional framework to rebuild the global economy, and avoid depression and isolationism. As noted, the IMF and the IBRD each became a specialized agency in 1947. The IBRD is now part of the ‘World Bank Group’ (see n 229). 222

  As noted by the late Judge Weeramantry: ‘The family of United Nations organizations was not set up in a fretwork pattern of neatly dovetailing components, each with a precisely carved outline of its own. These organizations deal with human activities and human interrelationships, and it is of their very nature that they should have overlapping areas of concern. Their broad contours are of course defined, but different aspects of the self-same question may well fall within the ambit of two or more organizations’ (Legality of the Use by a State of Nuclear Weapons in Armed Conflict ICJ Rep 1996, pp 150–1). 225

  http://www.imf.org/external/about.htm.

226

  http://www.worldbank.org/en/about/history.

227

  http://www.ifc.org/wps/wcm/connect/corp_ext_content/ifc_external_corporate_site/ home. 228

  http://ida.worldbank.org/about/what-ida. These loans are said to be ‘very close to giving sub-sidies’ (Meng, n 12, 1639, para 92). 229

  The World Bank Group consists of the IBRD, the IDA, the IFC, the Multilateral Guarantee Agency (MIGA), and the International Centre for the Settlement of Investment Disputes (ICSID). Only the first three members are specialized agencies. 230

  Williams, n 15, 30.

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231

  ibid, 3.

232

  ibid.

233

  http://www.itu.int/en/about/Pages/default.aspx.

234

  http://www.upu.int/en/the-upu/the-upu.html.

235

  http://www.icao.int/about-icao/Pages/default.aspx.

236

  https://public.wmo.int/en/our-mandate.

237

  http://www.imo.org/en/About/Pages/Default.aspx.

238

  http://www.wipo.int/services/en/.

239

  http://www2.unwto.org/content/who-we-are-0.

240

  Williams, n 15, 3. In the aftermath of World War II, they had an important reconstruction role. 241

  Williams notes that the distinguishing features of these specialized agencies is that ‘although they deal with specific functional sectors, their functions impinge so widely on the economic and social life of most states (all of which have domestic policies on health, education, agriculture and labour), that many of their activities cannot but be “political”; in that sense they are almost bound to be a source of friction from time to time between states of differing social and economic philosophies. This fact has frequently tempted some of them to be more “political” than was necessary to the fulfilment of their functional purpose’ (ibid, 29). 242

  http://www.unesco.org/new/en/unesco/about-us/who-we-are/introducing-unesco/.

243

  http://www.fao.org/about/en/.

244

  http://www.ilo.org/global/about-the-ilo/lang--en/index.htm.

245

  http://www.who.int/about/en/.

246

  http://www.unido.org/en/what-we-do.html.

247

  The Legal Adviser has noted that while there is no formal procedure for the establishment of such joint bodies, their establishment ‘should be considered permissible under specific circumstances’. Examples include the Liaison Committee established by Art 11 of the Agreement between the United Nations and the International Development Association, the United Nations/FAO Intergovernmental Committee on the World Food Programme established under GA Res 1714 (XVI) (1961), and the Working Group convened by the Secretary-General in joint sponsorship with the ILO under ECOSOC Res 585 F (XX) (1955). On the particular issue of whether or not ECOSOC needed to approve a proposed joint body between the Economic Commission for Asia and the Far East (ECAFE)—one of ECOSOC’s five regional commissions; its name changed in 1974 to the Economic and Social Commission for Asia and the Pacific—and the FAO, the Legal Adviser said it did: ‘Given the exceptional character of such joint bodies and the lack of any mention thereof in ECAFE’s terms of reference, we believe that the establishment of a committee jointly by ECAFE and FAO requires formal approval by the Economic and Social Council.’ It noted, however, that no formal approval of ECOSOC was required for ‘the establishment exclusively by ECAFE of a committee to be serviced jointly by ECAFE and FAO’ ([1974] UN Juridical YB 171–2). 248

  This can take the form of a bilateral relationship: see, eg, Agreement between the International Monetary Fund and the World Trade Organization, 9 December 1996, available at https://www.imf.org/external/pubs/ft/history/2012/pdf/3b.pdf, or the Agreement between the ILO and the FAO, 11 September 1947, available at http://www.ilo.org/public/ english/bureau/leg/agreements/fao.htm. It can also be multi-organizational: in 1994, ECOSOC decided to create a new programme on HIV/AIDS, which brought together the existing AIDS-related resources and expertise of the WHO, UNESCO, the IBRD, the IDA, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

and the IFC—along with those of semi-autonomous subsidiary organs (the UNDP, UNICEF, and the UN Population Fund) (Fomerand and Dijkzeul, n 1, 578–9).

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Part 2 The United Nations: What it is, 8 Membership Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): International organizations — UN Charter

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(p. 260) 8  Membership 1.  Introduction 8.01 2.  Admission to membership 8.05 3.  Loss of membership and membership rights 8.30 4.  Readmission to membership 8.47 5.  State succession and membership: problems of extinction and continuity 8.52 6.  Representation of members/credentials 8.71 7.  Observers 8.81 Al-Ebraheem, Kuwait and the Gulf: Small States and the International System (2016); Aljaghoub, The Advisory Function of the International Court of Justice 1946–2005 (2005); Basu, The United Nations: Structure & Functions of An International Organisation (2004); Blum, ‘Russia Takes Over the Soviet Union’s Seat at the United Nations’ (1992) 3 EJIL 360; Blum, Eroding the United Nations Charter (1993); Blum, ‘Was Yugoslavia a Member of the United Nations in the Years, 1992–2000? (2007) 101 AJIL 800; Bühler, State Succession and Membership in International Organizations: Legal Theories versus Political Pragmatism (2001); Conforti and Focarelli, The Law and Practice of the United Nations (4th rev edn, 2010); Cot, Pellet, and Forteau, La Charte des Nations Unies. Commentaires article par article (3rd edn, 2005); Crawford, The Creation of States in International Law (2nd edn, 2006); Duursma, Fragmentation and the International Relations of Microstates: SelfDetermination and Statehood (1996); Goodrich and Hambo, Charter of the United Nations: Commentary and Documents (1949); Goodrich, Hambro, and Simons, Charter of the United Nations (3rd edn, 1969); Grant, Admission to the United Nations: Charter Article 4 and the Rise of the Universal Organization (2009); Gross, ‘Progress Towards the Universality of Membership in the United Nations’ (1950) 50 AJIL 761; Gunter, ‘What Happened to the UN Ministate Problem’ (1977) 71 AJIL 110; Higgins, The Development of International Law through the Political Organs of the United Nations (1963); Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (1950); Komarnicki, ‘The Problems of Neutrality under the UN Charter’ (1952) 38 Transactions of the Grotius Society 77; Livingstone, ‘Withdrawal from the United Nations—Indonesia’ (1965) 14 ICLQ 637; Mullerson, ‘The Continuity and Succession of States by Reference to the Former USSR and Yugoslavia’ (1993) 42 ICLQ 473; Nizard, ‘Le retrait de l’Indonésie des Nations Unies’ (1965) 11 Annuaire Français de Droit International 498; Russel and Muther, A History of the United Nations Charter (1958); Scharf, ‘Musical Chairs: The Dissolution of States and Membership in the United Nations’ (1995) 28 Cornell ILJ 29; Schwebel, ‘Ministates and a More Effective UN’ (1973) 67 AJIL 108; Schwelb, ‘Withdrawal from the United Nations: The Indonesian Intermezzo’ (1967) 61 AJIL 661; Sievers and Daws, The Procedure of the United Nations Security Council (4th edn, 2014); Simma et al (eds), The Charter of the United Nations: (p. 261) A Commentary (3rd edn, 2012); Suy, ‘The Status of Observers in International Organizations’ (1978-III) 160 RCADI 75; Unmi, ‘Indonesia’s Withdrawal from the United Nations’ (1965) 5 Indian JIL 128; White, The Law of International Organizations (3rd edn, 2016); The Succession of States in Relation to Membership in the United Nations: Memorandum Prepared by the Secretariat (1962), UN Doc A/CN4/149.

1.  Introduction

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8.01  The Charter of the United Nations provides for two different means by which it is possible to become a member of the organization. Article 3 of the Charter relates to original members of the organization, while other members may be admitted under Article 4. Under Article 3, original members are those states that (i) participated in the diplomatic conference held in San Francisco in 1945 at which the UN Charter was agreed, or that had previously signed the Declaration of the United Nations of 1 January 1942; and (ii) ratified the Charter in accordance with Article 110.1 States that do not meet these conditions can only become members of the organization as a result of the procedures set out in Article 4. 8.02  The main distinction between original members and other members is that the organization is able to exercise control over whether the latter become members but had no control over the admission to membership of original members. The UN Charter itself provides for the membership of the original members, and those states needed only to accept that status by ratifying the Charter under Article 110.2 On the other hand, other states only become members by being admitted as such by the organization. As the original members effectively had a right to membership, there was no requirement that the Security Council and the General Assembly give their assent to (p. 262) the admission of original members to the organization, unlike other states that needed to apply to those bodies for membership. 8.03  While there is a difference in the process by which the original members and other members become members of the organization, once a state becomes a member, no distinction is drawn in the UN Charter with regard to the rights and obligations of those members, or in relation to their status within the organization.3 8.04  Although admission to membership of the UN under Article 4 is only open to ‘states’, and although Article 3 speaks of the original members of the UN as ‘states’ that participated in the San Francisco Conference or signed the 1942 Declaration of the United Nations, not all the founding members were states as a matter of international law. The Soviet Republics of Byelorussia and Ukraine were invited to the San Francisco Conference and were founding members of the UN, although it is generally accepted that they were not states at the time.4 Similarly, India and the Philippines also participated at the San Francisco Conference and became founding members of the UN prior to their attainment of independence from the UK and the US, respectively.5 The presence of these entities as original members suggests that the word ‘state’ as used in Article 3 does not mean a state under international law, or at any rate was used in a sui generis manner in this particular provision of the Charter.6 Indeed consideration was given in San Francisco to the use of the term ‘nation’.7

(p. 263) 2.  Admission to membership 8.05  Under Article 4 of the UN Charter, membership in the UN is open to ‘all other peaceloving states’. The use of the word ‘all’ indicates the universal aspirations of the organization right from the very beginning. The stipulation that aspiring members must be ‘peace-loving’ is linked to the fact that one of the main aims of the organization is the maintenance of international peace and security. Article 4 further provides that candidates for admission must accept the obligations contained in the Charter and, in the judgement of the organization, must be able and willing to carry out those obligations.8

2.1  The procedure for admission 8.06  Admission of new members to the UN is effected by a decision of the General Assembly, which, however, may only act upon the recommendation of the Security Council.9 Thus, although the final decision rests with the General Assembly, the Security Council acts as a gatekeeper in relation to whether or not a candidate may even be considered for admission by the General Assembly.10 Inevitably, the most contentious issues (p. 264) with regard to questions of admission have arisen in the Security Council. This is because From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

questions of admission to membership are considered to be non-procedural issues, and therefore are subject to veto by the permanent members.11 The frequent use of the veto in this regard in the first decade of the UN12 led to suggestions from within and outside the organization that the permanent members should come to some arrangement by which they would not exercise the veto with respect to recommendations of admission to membership.13 However, such proposals were unsuccessful. 8.07  Unlike the case of original members of the UN, where Article 110 provides for ratification of the UN Charter, the Charter does not itself set out precisely how it becomes binding, formally and as a matter of law, on a state wishing to become a new member of the organization. Unlike other treaties, no provision is made in the Charter for accession by non-signatory states. The procedure for admission is set out in the Rules of Procedure of the General Assembly and the Provisional Rules of Procedure of the Security Council. These documents provide, in nearly identical terms, that: Any State which desires to become a Member of the United Nations shall submit an application to the Secretary-General. This application shall contain a declaration made in a formal instrument that it accepts the obligations contained in the Charter.14 (p. 265) It is this formal declaration that fulfils the same purpose that an instrument of ratification or accession normally would, except that in this case, the obligations of the UN Charter do not become effective until the relevant organs have acted upon and accepted the application for membership. 8.08  Once an application for membership has been submitted, consideration of the application is taken up first by the Security Council.15 The Security Council created the Committee on the Admission of New Members to which such applications should be referred ‘unless the Security Council decides otherwise’,16 and which makes (p. 266) recommendations to the Council.17 Each member of the Security Council is represented on the Committee. The Council is to decide on the application, exercising its judgement as to whether the aspiring state meets the conditions set out in Article 4.18 The function of the Committee is to provide the Council with a sufficient basis on which it can reach a decision, by collecting and analysing such available information on the applicant as would assist in the application of the criteria set out in Article 4 of the UN Charter.19 (p. 267) 8.09  If the Security Council recommends admission to membership, the matter is then to be considered by the General Assembly, which shall similarly exercise its judgement as to whether or not the aspiring state fulfils the criteria set out in Article 4 of the UN Charter. Where the Council fails to recommend admission, the General Assembly is not competent to make a decision as to admission. The frustrations with regard to the frequent use of the veto in the first decade of the Security Council, in relation to the admission of new members, led to suggestions that the General Assembly might be able to act alone in regard to admission of new members.20 However, the International Court of Justice (ICJ), in its Advisory Opinion on the Competence of the General Assembly for the Admission of a State to the United Nations,21 confirmed what is the natural reading of Article 4(2), and held that a recommendation of the Security Council is an indispensable aspect of the process of admission of new members.22 (p. 268) Article 4(2) provides: ‘The admission of any such [applicant] state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.’ According to the Court:

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The word ‘recommendation’, and the word ‘upon’ preceding it, imply the idea that the recommendation is the foundation of the decision to admit, and that the latter rests upon the recommendation. Both these acts are indispensable to form the judgement of the organization. On this basis, the Court concluded that: the ‘General Assembly can only decide to admit upon the recommendation of the Security Council’.23 8.10  Only when the General Assembly approves the application does a state become a member of the UN and assume the obligations of the UN Charter. Within the General Assembly, admissions of new members are important questions to be decided upon by a two-thirds majority.24 In no case has a state in respect of which the Security Council has recommended admission to membership been rejected by the General Assembly.

2.2  The criteria for admission 8.11  In the early years of the UN there was much debate and controversy about the criteria to be applied with regard to the admission of new members. In particular, there was debate about whether additional criteria, not mentioned in Article 4, could be applied. This controversy about admission was a reflection of the Cold War division between the Soviet Union and Western states. As referred to earlier, one key question that arose, particularly in the Security Council, was whether decisions regarding the applications for membership should be made in regard to each applicant separately, or rather whether it was permissible to condition the admission of one or more states (p. 269) on the admission of another or others.25 This controversy led to an impasse over the admission of new members to the UN in the first 10 years. In particular, as outlined in the context of the procedure for admission, an issue arose as to whether a member of the Security Council could make its consent to admission of a state to the UN dependent on conditions not expressly provided for in Article 4, specifically on the condition that other states be admitted together with that state.26 The ICJ held, by majority, that it was not lawful to make the admission of a state dependent upon conditions not contained in Article 4. In short, the admission of one state could not legally be conditioned on the application of another.27 However, the Court was keen (p. 270) to stress that Article 4 does not forbid the taking into account of other factors that it is possible reasonably and in good faith to connect to the conditions laid down in Article 4.28 8.12  As a result of this controversy regarding conditional admission, the organization could not, in its early years, be said to be truly universal. The breakthrough with regard to the admission of new members came in 1955, when a package deal was negotiated with regard to the admission of 16 new members.29 Under that arrangement a separate vote was taken on whether each individual applicant fulfilled the criteria for membership. However, a single vote was taken to recommend, to the General Assembly, the admission of these states.30 8.13  The membership of the UN grew tremendously in the period of decolonization that began in the late 1950s and gathered pace in the 1960s; membership increased by 25 members between 1945 and 1955, and a further 83 members were admitted between 1955 and 1984.31 It was during this last period that the UN emerged as a truly universal organization. In addition to the fact that there were many more candidate states as a result of decolonization, the view had also come to prevail that membership of the UN should more or less be automatic on attainment of independence. There is no single explanation for the change in the Security Council’s approach to admissions observable from December 1955. There was, however, significant political pressure, both within the UN and at a domestic level, to avoid the use of the veto when dealing with applications for admission.32 Although the 1948 and 1950 Advisory Opinions of the ICJ did not in themselves lead to a change of views about membership questions among the permanent members of the Security Council, at the time of the second Advisory Opinion ‘[t]he drive in favor of

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universality…was gaining momentum’.33 Indeed, in 1954, the General Assembly adopted a resolution in which it noted (p. 271) the growing general feeling in favour of the universality of the United Nations, membership in which is open to all peace-loving States which accept the obligations contained in the Charter and, in the judgment of the Organization, are able and willing to carry out those obligations.34 8.14  An acceptance of the essentially political nature of the dispute between those permanent members advocating for individual recommendations versus the Soviet Union’s en bloc approach appears to have permitted not only the ‘package deal’ (with its attendant inconsistencies with the 1948 Advisory Opinion), but also a loosening, at that time, of the emphasis on compliance with the Article 4(1) conditions.35 Following the package deal and the reactivation of the Committee on the Admission of New Members in 1971, ‘applications were generally accepted without much question’.36

2.3  Application of the criteria for admission 8.15  Article 4(1) of the UN Charter requires that applicants for membership should fulfil five criteria: (i) the entity must be a state; (ii) the state must be peace-loving; (iii) the state must accept the obligations contained in the UN Charter; (iv) the state must be able to carry out its obligations under the Charter; (v) the applicant must be willing to carry out the obligations contained in the Charter.37 Arguably, only the first of these criteria relates to objective legal grounds. The second has been a matter of appreciation, based on uncertain standards. Fulfilment of the third criterion is a formal matter that is easily discerned, and has therefore not been the subject of controversy. The assessment of the last two criteria is, even under the explicit wording of Article 4, a matter within the discretion and judgement of the relevant organs. Since these organs make their decisions on the basis of votes by individual states, it has been for each state within the organ to make a decision as to how that judgement is to be exercised.38 8.16  Over the course of the history of the UN, many difficult questions have turned upon how the criteria in Article 4 are to be interpreted and applied. Those questions include whether the UN should admit states with very small populations and territory (so called ‘micro’ or ‘mini’ states) to membership39—a matter that turns both on assessment of whether these entities are indeed states as a matter of international law and on (p. 272) whether such states (if they are such) are able to fulfil the obligations of membership under the UN Charter. Another question that has required consideration of the criteria provided for in Article 4 is whether neutral states should be admitted—an issue that raises the question of the ability and willingness of such states to fulfil the obligations of membership.40 8.17  These matters were the subject of much debate in the first quarter-century of the UN.41 However, these debates have—eventually—almost always been resolved in favour of adopting a broader, more liberal view of fulfilment of the criteria for admission to membership, as long as the entity in question fulfils the criteria for statehood as a matter of international law. Indeed, the imperative of the principle of self-determination, particularly in the decolonization context, has also meant that, over time, a more liberal approach has also been taken with respect to the criteria for statehood. Except in rare cases, states that have gained independence from colonial rule since the 1960s have swiftly been admitted to membership of the UN.42

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2.3.1  Entity must be a state 8.18  Membership of the UN, unlike the case of the League of Nations,43 is only open to states. In the first quarter of a century of the UN, there was much discussion about whether a particular applicant met the criteria for statehood as set out in the Montevideo Convention:44 permanent population, defined territory, government in effective control of territory, and capacity to enter into legal relations (which is regarded as a requirement of independence). There are no cases in which membership has been opposed on account of a lack of a permanent population. Although it was originally contended in a couple of cases that a state should not be admitted to membership because its borders were contested and hence it did not meet the Montevideo criteria for statehood, (p. 273) these claims were later dropped.45 Most of the focus of attention, in cases where membership had been contested on the grounds of lack of statehood, related to a government’s alleged lack of effective control of its territory or an alleged lack of independence from another state.46 It was initially argued that in cases of military occupation of a state dating from the Second World War, such an entity was not sufficiently independent.47 Likewise, it was argued in a number of cases that a state did not have sufficient independence in fact from a parent state, or from some other state, such that it should not be regarded as a state under international law and was therefore not eligible for membership.48 However, the development of the principle (p. 274) of self-determination appears to have led to a relaxation of the criteria for statehood, and thus for admission to membership, in the case of peoples entitled to selfdetermination. In cases where a former colonial entity had been granted independence by the metropolitan power, or even where the entity was engaged in a forcible struggle for independence but did not have stable or effective control of territory, the view came to prevail that not to recognize the statehood of those colonial entities would amount to a denial of the right of those peoples to self-determination.49 In these situations, the overriding importance ascribed to the right of self-determination is taken as compensating somewhat for the defect constituted by the lack of a government in effective control of the territory.50 In addition, the right to self-determination has also been taken as modifying the traditional interpretation of the criterion of independence in cases of secession in furtherance of the right. In cases of secession from within a state, statehood is usually not recognized until there has been the consent of the parent state.51 However, the matter appears to have been approached differently in cases of entities properly regarded as selfdetermination units, typically in the (p. 275) context of decolonization. In such cases, where the metropolitan state forcibly denies self-determination to the peoples properly claiming it, ‘the principle of self-determination operates in favour of statehood of the seceding territory, provided that the seceding government can properly be regarded as representative of the people of the territory’.52 In such cases, to insist on the consent of the parent state would be to negate the right of self-determination.

2.3.2  Applicants must accept the obligations in the Charter 8.19  As already indicated, states applying to membership of the UN must declare, in a formal instrument, their acceptance of the obligations of the UN Charter.53 Questions have arisen as to whether reservations may be made in submitting such a declaration. The answer is surely in the negative, and the practice has been for all members to accept the Charter obligations without reservation.54

2.3.3  Applicants must be able and willing to carry out their obligations under the Charter 8.20  In the drafting of the UN Charter it was suggested that states should not be admitted as members if they did not possess the minimum objective standard of resources (p. 276) necessary for compliance with their obligations under the Charter—such as the obligation

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to take part in military enforcement action. Thus, there was discussion of whether a state that had taken on neutral status could be admitted to the UN.55

2.3.3.1  Neutral states 8.21  The key question with regard to neutral states has been whether the state would be in a position to fulfil the obligation to render assistance to the organization in the event of collective action under Chapter VII of the UN Charter. It has come to be accepted that neutrality is not a bar to membership of the UN. Austria was admitted to membership in December 1956, a few months after it declared its perpetual neutrality.56 Japan was admitted in 1956, despite the fact that a provision of its Constitution renounced war and provided that land, sea, and air forces would not be maintained by Japan.57 In 2002, Switzerland, another neutral state, was admitted to membership of the UN.58 8.22  Although it is settled that neutral states may be admitted to membership of the organization,59 questions have been raised as to whether such a state may avail itself of that status in order to avoid an obligation, under Chapter VII, to take measures decided on by the organization for the maintenance of international peace and (p. 277) security.60 This is a question that was already contemplated at the San Francisco Conference that drafted the Charter, and on which there was the clear view in the drafting history that neutrality could not excuse a member from its obligation under the Charter.61 Indeed, there are good reasons of principle why neutral states may not rely on that fact to avoid UN Charter obligations. A state may acquire neutral status as a result of treaty arrangements with other states, or simply as a result of its own unilateral commitments under domestic law. Where neutrality arises out of treaty engagements, it should be recalled that Article 103 of the UN Charter provides that obligations under the Charter shall prevail over obligations under any other international agreement. Where a state has established its neutrality by an internal, usually constitutional, rule, that state may not rely on its domestic law in order to avoid its obligations under international law.62 8.23  Despite these debates about the compatibility of neutral status with a willingness to carry out obligations under the Charter of the UN, it should be noted that, thus far, no actual conflict between that status and the Charter has arisen. This is because the Security Council, though empowered under the Charter to require states to use force for the maintenance of international peace and security,63 has not actually done so. As a result of the failure of states to conclude agreements with the Council under Article 43 of the UN Charter, the practice of the Council has been to authorize the use of force rather than to require it.64 Under this practice, no state has the obligation to use force pursuant to the resolution of the Council, and it is left to each state to decide on whether it is able and willing to act on the Council’s authorization.65 As (p. 278) there is no obligation to use force, there is correspondingly nothing inappropriate, as a matter of law, with a state’s choosing, on grounds of neutrality or otherwise, not to take part in military enforcement action authorized by the Security Council.

2.3.3.2  Micro states 8.24  The question has also arisen as to whether states with a very small population and limited economic resources—so-called ‘micro’ states or ‘mini’ states—ought to be admitted to the UN.66 In terms of the criteria for admission to the UN, there are two key questions that need to be addressed: (i) whether such entities are indeed states; and (ii) whether they are able to fulfil their obligations under the Charter. Quite apart from their fulfilment of the criteria, it may also be wondered whether, in view of the principle of sovereign equality of members, admission of such diminutive states would not unduly distort voting in the General Assembly or other bodies on which they might sit.67 Consideration was given to creating the status of ‘associate membership’, which could be conferred on such states.68 It was envisaged that this status would give such states some of the rights of membership without imposing the burdens.69 Although a committee was established to look into this

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matter, the proposal for associate membership was never followed.70 Since the UN Charter does not provide for this category of membership, it is arguable that creation of a new category of membership would require its amendment.71 The matter was resolved by admitting these micro states into the membership of the UN.72 8.25  In general terms, it may be remarked that since admission to the UN was opened up to all states in the decolonization period, very little attention has been paid to the question of ability to carry out the obligations under the UN Charter. Similarly, as with the criterion that a state be peace-loving, very little attention has been paid to whether a state is willing to fulfil its obligations under the Charter. Within the period under consideration, states have, on occasion, challenged an application for mem(p. 279) bership on the ground that the state in question has not demonstrated an intention to comply with the obligations in the Charter.73 However, these considerations do not appear to have been decisive in decisions regarding admission to membership.

2.4  Divided states 8.26  The admission of states that had come to be divided at the end of the Second World War, or as a consequence of the conflict between the communist world and the West, posed particular issues, and were some of the more contentious cases faced by the UN.74 These cases were particularly difficult because applications for UN membership were used as a means of pursuing a claim for independence by one side or the other, when those claims were rejected or questioned by states supporting the other side.75 Also, admission to membership of the UN was seen as posing a problem for reunification. The issues relating to the admission of the divided states were so contentious that these states were excluded from the package deal negotiated in 1955 by which the blockage of admissions in the UN was resolved.76 The applications for membership by North and South Korea, as well as by the two Vietnams, were therefore pending on the agenda of the Security Council for many decades. North and (p. 280) South Korea first applied for membership in 1949, but were not admitted until 1991.77 North and South Vietnam first applied for membership in the late 1940s, but admission was only forthcoming in 1977 after they had been reunified.78 The Federal Republic of Germany and the German Democratic Republic were only admitted in 1973,79 after they had concluded a treaty between them clarifying that under international law there were two German states. The principle that may be discerned from consistent practice relating to the manner in which the question of admission to divided membership has been treated, is that admission has only occurred after one of the two states concerned has essentially relinquished the claim to act for the entire territory, or the two states have been reunified. In other words, admission of states that remained divided has only occurred when each entity has essentially recognized the existence of the other entity as a state.

2.5  Merger of states 8.27  On a number of occasions, two members of the UN have merged to become one state.80 In theory, the merger of states may occur in two different ways: by incorporation, or by unification.81 Incorporation will occur when a state becomes a part of another state, with the legal personality of the former state being extinguished and only the personality of the latter state continuing. In the case of unification, the two or more states who have merged will cease to exist and a new state is created. If that is the case, it may be argued that this new state should go through the admission procedure established in Article 4 of the UN Charter, since it is legally distinct from the states from which it emerged. As a matter of law, incorporation ought to pose little difficulty with regard to membership of the UN, since the membership of the state that has been incorporated into another will be terminated and the state whose personality continues will maintain membership of the UN in a continuous fashion. As a matter of fact, it may not always clear whether a merger has occurred by

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incorporation of one state into another or by unification of two states into a third, new state.82 8.28  In practice, and for the reasons just indicated, the temptation to regard the merger to be a case of incorporation, such that the personality of one of the former states is regarded as continuing, is great. In practice, this is the view that has always been taken (p. 281) at the UN in the case of merger. When Egypt and Syria, both of which had been members of the UN, merged to form the United Arab Republic in 1958, the admissions procedure in Article 4 was not followed and the United Arab Republic continued the membership of Egypt.83 Similarly, when Tanganyika and Zanzibar merged to form Tanzania in 1964, that state was deemed to automatically continue the membership of Tanganyika.84 Likewise, the mergers of Yemen85 and of the two Germanys in 1990 were regarded as cases of incorporation, such that there was no need for the admission of any new state. In the case of Yemen, adoption of the incorporation approach may have been politically convenient but probably did not reflect the legal position, which appeared to be a case of unification, creation of a new state, and extinction of the previous states.86 8.29  However, the ‘reunification’ of Germany was a rather straightforward case of incorporation.87 The Länder of the German Democratic Republic acceded to the Federal Republic of Germany on 3 October 1990, on the basis of a treaty of unification between the two states, and the personality of the former was extinguished and the personality of the latter continued.88 The German Democratic Republic ceased to be a member of the UN on that date, while the membership of the Federal Republic of Germany continued. In addition, post-unification, the Federal Republic of Germany continued to be a member of those UN organs of which it was a member pre-unification, and the UN elected new members to those organs on which the German Democratic Republic was a member.89

3.  Loss of membership and membership rights 3.1  Suspension from membership 8.30  The UN Charter provides two procedures by which, and two different circumstances in which, members may be suspended from the exercise of some or all of their rights (p. 282) under the UN Charter. Article 5 is the main provision that deals with the possibility of suspension of membership. Under that provision: A member of the UN against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of rights and privileges of membership by the General Assembly upon the recommendation of the Security Council. 8.31  Under Article 5, members who fulfil the conditions provided therein may have the exercise of all their membership rights and privileges suspended. However, a second provision of the UN Charter provides for a more limited suspension of membership rights. Under Article 19: A Member of the United Nations which is in arrears in payment of its financial contributions to the Organization 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.90 8.32  While Article 19 of the UN Charter provides for a limited suspension of rights, in that it relates only to the right to vote in the General Assembly,91 Article 5 provides potentially92 for comprehensive suspension of all rights and privileges accruing from membership of the organization.93 It is worth noting that the wording of Article 5 (p. 283) makes it clear that suspension relates only to the suspension of the rights of membership. The obligations of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

the suspended member remain in force in full. Indeed, it would be paradoxical were that not the case, since the purpose of suspension is to encourage the member to comply with its obligations. 8.33  In addition to the difference relating to the scope of rights that are suspended, the circumstances triggering suspension of the rights under Article 5 of the UN Charter are different from factors that may trigger suspension of the right to vote in the Assembly under Article 19. Under Article 19, the right to vote is lost when a member is in financial arrears, whereas suspension under Article 5 may be applied only to states ‘against which preventive or enforcement action’ has been taken by the Security Council. The UN Charter does not define ‘preventive or enforcement action’, though the same expression is used in Article 2(5).94 Clearly, this provision applies to states with respect to which the Security Council has taken binding action under Chapters VII and VIII of the UN Charter. The Council is also empowered to take binding action to enforce decisions in some other provisions of the Charter, and those measures should also be deemed to be ‘enforcement actions’ for the purposes of Article 5.95 Since Article 5 refers to ‘preventive’ as well as ‘enforcement’ action, it is less clear whether it should be construed as extending to recommendations made either under Chapter VII, or under other provisions of the Charter. While the Security Council may make recommendations with the aim of preventing future breaches of the peace,96 the question arises whether such ‘preventive’ recommendations ought to be regarded as ‘preventive actions’ for the purposes of Article 5.97 Although there are provisions of the Charter that include recommendations within the term ‘action’ for the purposes of those provisions,98 the fact that Article 5 is intended as a tool by which the organization can compel members to act in certain ways suggests that recommendations addressed to those states are not to be regarded as ‘preventive measures’ within (p. 284) the scope of the provision.99 To include recommendations within the scope of ‘preventive’ actions that may trigger suspension is in effect to turn such recommendations into binding measures.100 8.34  A third difference between the suspension of rights provided for in Article 5 and that provided for in Article 19 is that the latter occurs automatically,101 on the occurrence of the circumstances provided therein, whereas suspension under the former requires a decision of both the Security Council and the General Assembly.102 However, membership rights suspended under Article 5 may be restored only by the Security Council.103 8.35  No member of the UN has been suspended using the procedure outlined in Article 5. However, the General Assembly and other UN organs have found other means by which to prevent members from exercising of some of their membership rights on account of displeasure with the conduct of those members.104 In particular, rather than resorting to suspension under Article 5, the General Assembly prevented South Africa from participating in the work of the Assembly by rejecting the credentials of the South African representatives for a number of years.105 Likewise, the United Nations Economic and Social Council (ECOSOC) expelled Portugal from membership of the Economic Commission for Africa, and prevented that country and South Africa from participating in the work of the Commission.106 South Africa was also excluded from participation in the work of the United Nations Conference on Trade and (p. 285) Development (UNCTAD).107 In the context of succession of states to membership, the General Assembly, acting upon the recommendation of the Security Council, took the view108 that the Federal Republic of Yugoslavia (FRY) (Serbia and Montenegro) could not automatically continue the membership of the Socialist Federal Republic of Yugoslavia (SFRY), and then went on to decide that the FRY should not participate in the work of the General Assembly109 and ECOSOC.110 In all those cases, the relevant organ in effect suspended the state concerned from exercising some of its membership rights,111 by denying it the right to participate and to vote in the organs concerned. However, the legality of the means by which this de facto suspension was achieved may be questioned.112 In all these cases, the procedure employed From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

to achieve this de facto suspension circumvented the requirement in Article 5 that suspension of membership rights take place only upon the recommendation of the UN Security Council. Indeed, the General Assembly was not itself involved in making the decision to ‘suspend’ in all of the cases, with the decision being taken in some cases by subsidiary organs or by ECOSOC.

3.2  Expulsion from membership 8.36  As was the case with the Covenant of the League,113 the UN Charter provides for the expulsion of members from the organization. Article 6 of the Charter provides: A Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council.114 (p. 286) 8.37  Unlike the provision in the Covenant, Article 6 does not permit expulsion for any violation of the Charter. Expulsion is only possible in the case of persistent violations, meaning that one-off violations may not trigger expulsion. Also, only persistent violation of the Principles contained in the Charter may result in expulsion, suggesting a reference to Article 2 of the UN Charter, which sets out the ‘Principles’ according to which the organization and its members are to act. However, it may also be argued that ‘Principles’, as used in Article 6, refers to the basic or fundamental obligations of memberships, and is therefore broader than those contained in Article 2, such that the expression includes, at a minimum, obligations that may be derived from the purposes of the UN set out in Article 1.115 8.38  Expulsion terminates the membership status of the state concerned, with the effect that the state is no longer entitled to the rights of membership, nor is it, from the point of expulsion, bound by the obligations deriving solely from membership of the UN. However, in accordance with the law of treaties, the expelled state would remain bound to fulfil those obligations that had arisen when it was a member and which remain unfulfilled.116 While expulsion from the UN relates only to the organization, the constituent instruments of a number of UN specialized agencies provide that the membership, in those agencies, of a state expelled from the UN would terminate automatically.117 A state whose membership in the UN has been terminated may reapply for admission.118 8.39  As is the case with admission to, and suspension from, membership, expulsion from membership is carried out by the General Assembly, upon the recommendation of the Security Council. For the same reasons that the ICJ emphasized with regard to admission, the General Assembly may not act without the prior recommendation of the Security Council.119 (p. 287) 8.40  No UN member state has been expelled from membership under Article 6. However, attempts were made to apply Article 6 with regard to South Africa and Israel.120 Although these attempts were ultimately unsuccessful, the General Assembly did on one occasion request that the Security Council, ‘if necessary, consider action under Article 6 of the Charter’121 with respect to South Africa.122 The Security Council on another occasion, in a resolution that ‘condemn[ed] the Government of South Africa… for its persistent defiance of the authority of the United Nations’ with regard to Namibia, referred to the Council’s being ‘[m]indful also of its responsibilities under Article 6 of the Charter of United Nations’.123 On yet another occasion, a draft resolution recommending the expulsion of South Africa was tabled in the Security Council, and discussed, but failed to be adopted.124 As a result of the failure to persuade the Security Council to invoke Article 6, the General Assembly adopted the strategy by which South Africa was deprived of some of its

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membership rights through rejection of the credentials of its representatives to the General Assembly.125

3.3  Withdrawal from membership 8.41  Unlike the case with the constituent instruments of many international organizations126 (including the Covenant of the League of Nations),127 the UN Charter does not provide for withdrawal by members from the organization. However, the possibility of withdrawal was contemplated in the drafting of what was to become Article 108 dealing with amendments to the Charter. As a result of that discussion, and despite the fact that a small majority of the relevant Committee voted against the (p. 288) inclusion of a withdrawal clause,128 the Committee and the Plenary of the Conference adopted a declaration that contemplated the possibility of withdrawal in a number of cases. According to this declaration, withdrawal might occur in exceptional circumstances. The declaration went on to state that where the organization was unable to fulfil its role of maintaining peace, or where a member was unable to accept an amendment that had come into force, or in cases where an amendment was accepted by a majority of the Assembly but failed to secure sufficient ratifications to bring it into force, members could withdraw.129 8.42  There has only been one case of a purported withdrawal by a member from the organization. This occurred in 1965, when Indonesia, protesting about the election of Malaysia to the Security Council, communicated its decision to withdraw to the SecretaryGeneral.130 From 1 March 1965, the Indonesian name-plate and flag were removed from the organization and Indonesia ceased to be listed as a Member of the organization, or of UN principal and subsidiary organs of which it had been a member solely by virtue of its membership in the UN itself.131 Also, though no formal action was taken on this matter by the General Assembly or the Security Council, the General Assembly did not include Indonesia in the resolution assessing member states for contribution to the UN budget.132 However, in September 1966, following a change of government, Indonesia sought ‘to resume full cooperation with the United Nations and to resume participation in its activities’.133 Following a simplified procedure, (p. 289) and without any objection, the Indonesia delegation to the 1966 General Assembly session was seated and Indonesia resumed participation in the activities of the UN.134 8.43  The procedure adopted by the General Assembly for the ‘readmission’ of Indonesia suggests that the General Assembly, in 1966, acquiesced in the view that Indonesia had not actually withdrawn from the organization.135 Although this interpretation of events is questionable, especially in the light of the actions taken in 1965 by Indonesia and by the UN,136 adoption of this position meant that the UN did not have to take a firm view on whether, and in what circumstances, withdrawal is possible.137 However, it ought to be recalled that in the period between January 1965 and September 1966, members were of the view that Indonesia had indeed withdrawn from the organization,138 though some doubt was expressed as to whether it was legally entitled to do so in the circumstances.139 (p. 290) 8.44  Two questions arise with regard to the legality of withdrawal from the organization. First, there is the general question as to whether withdrawal is possible at all. The second question, which arises only if a positive answer is given to the first, relates to the circumstances in which, and the procedure by which, a state may withdraw. The absence of a withdrawal clause in the UN Charter means that the answer to the first question must be derived from the general law of treaties.140 Where a treaty does not explicitly provide for the possibility of withdrawal, withdrawal is not legally permissible unless it is established that the parties intended to admit of that possibility, or that a right of withdrawal may be implied by the nature of the treaty.141 The discussions that occurred in the drafting of the UN Charter, and which are outlined earlier, indicate clearly that the parties intended to admit of the possibility of withdrawal and that, despite the permanent

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nature of the organization created by the Charter, the treaty is not such as would admit of no right of withdrawal.142 8.45  However, establishing that withdrawal is possible under the law of treaties only leads to the second question of when such withdrawal is possible. The fact that withdrawal was foreseen in certain circumstances does not lead to the conclusion that states are free to withdraw in any circumstance. In the case of a treaty that explicitly provides for withdrawal, or where withdrawal is foreseen as a possibility by the parties, it must be the case that withdrawal is legally permissible only in those circumstances with respect to which the parties intended to admit of that possibility. The drafting history of the UN Charter already outlined indicates some particular circumstances with regard to the coming into force of amendments, or the failure to bring amendments into force, when an aggrieved state may decide to withdraw from the organization.143 However, it was envisaged, more generally, that withdrawal would be permissible in ‘exceptional circumstances’.144 Although the meaning of this phrase is unclear,145 the expression must refer to circumstances that were unforeseen at the time the state became a member.146 Indeed, the expression can be regarded as referring simply (p. 291) to the rule by which a state may withdraw from a treaty on account of some fundamental change of circumstances.147 In those circumstances, a state may withdraw from a treaty where ‘the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty’.148 8.46  Questions have also arisen as to whether the UN Charter is a treaty such as would by nature permit withdrawal.149 This question would only be significant for the Charter if it is intended to suggest that there is a broader right to withdraw than that foreseen by the parties during the drafting process. However, irrespective of what conclusion would be reached with regard to that question when examined in isolation, where withdrawal is specifically contemplated in the drafting of the treaty, or in the treaty itself, it would be subversive of the intention of the parties to admit of a broader open-ended right to withdraw. Lastly, even in the absence of provision in a treaty permitting withdrawal, or where it cannot be shown that the parties intended to accept that possibility, withdrawal can take place in accordance with the rules of the law of treaties, including the rules relating to fundamental changes of circumstances.

4.  Readmission to membership 8.47  Where a state that was previously a member of the UN but which has lost that membership wishes to be readmitted, there is nothing in the Charter to indicate that the procedures for readmission should be any different from the procedures for initial admission to membership. Membership of the UN may be lost in a number of different circumstances. In a case of merger of two or more states, at least one of the merging states will cease to be a member.150 Also, a member may be expelled in accordance (p. 292) with Article 6 of the UN Charter.151 As has been discussed, questions have arisen as to whether a state may withdraw from membership.152 In all of those cases, it may well be that the state that previously lost its membership wishes to be readmitted to the organization. It may be argued that at that point, the situation is no different from the case of an initial admission to the UN, since, at the moment of readmission, the state concerned is not a member of the organization and the procedure provided for in Article 4 should be followed.153 However, in the practice of the UN, the Article 4 procedure has not, thus far, been utilized with respect to cases of readmission.

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8.48  There have been two cases that may be described as instances of readmission to membership.154 In 1961, Syria, which had been an original member of the UN but which merged with Egypt in 1958 to form the United Arab Republic, sought to resume its membership of the organization. Another case of resumption of membership occurred in September 1966, when Indonesia, which had purported to withdraw from the UN in 1965, sought to return to the organization.155 In neither case was the matter placed before the Security Council as would have been required by Article 4, nor did the General Assembly take a formal decision recorded in a resolution. Instead, a much simpler procedure was followed under which the President of the Assembly asked members, during an Assembly meeting, whether there was any objection to those states resuming their seats, took note of the lack of objections, and invited the representatives of those states to take their seats.156 8.49  The view may be taken that the unanimous approval, by the UN membership, of the use of this simplified procedure in cases of readmission is subsequent practice establishing157 the agreement of the membership as to inapplicability of Article 4 of the UN Charter in cases of readmission. On this view, whatever interpretation might otherwise have been given to Article 4, the consensus of the treaty parties suffices to establish a different interpretation.158 (p. 293) 8.50  However, the practice in the two cases of readmission that have thus far occurred, though consistent, should not be viewed as establishing a general position as regards every instance of readmission as there were special factors in each case. In the case of Indonesia, though it had purported to withdraw from membership in 1965,159 and had not been listed as a UN member, nor had it been assessed any dues for contribution to the UN budget160 in that period, the view it expressed when it sought to return to the UN seemed to assume that it had not withdrawn but had only ceased its cooperation with the organization.161 It was, therefore, in 1966, only wishing to resume cooperation. It was this proposition that was put to the General Assembly, which chose to accept that view.162 Therefore, although the Assembly’s actions suggest that it acquiesced in the view that Indonesia had not withdrawn from the organization, conclusions may not be drawn from those actions as to the Assembly’s view on what ought to happen in a proper case of readmission of a state that had indeed lost its membership in other circumstances.163 8.51  In the case of Syria’s readmission, the view also seemed to have been taken that Syria had never lost its membership but that it had continued to be a member within the context of a joint association with Egypt when they formed the United Arab Republic.164 It is doubtful that two states can hold a single membership of the UN, as is suggested by the idea of continuing a membership in joint association with another state. Indeed, to the extent that Syria was not a state but only part of one when it (p. 294) merged with Egypt, it must be taken to have lost its membership at that point.165 However, at the point of readmission, there was a complication that arose from the fact that Syria was an original member of the UN. The procedure in Article 4 of the UN Charter requiring the consent of the Security Council and the General Assembly to admission is one that applies to states other than original members.166 If the Syria that arose from the dismemberment of the United Arab Republic in 1961 was the same international legal person as the pre-merger Syria, then it was the same state that had become an original member of the UN.167 Therefore the procedure in Article 4 could not be applied to it. However, in the case of a state that was not an original member of the UN, or if the legal personality of Syria in 1961 was different from that of Syria in 1958,168 different considerations would apply, and the Article 4 procedure would in strict legal terms be applicable to such a readmission. In the case of a state expelled from the UN, it is unlikely that it could be readmitted under a simplified procedure. Under Article 6, expulsion takes place on account of violation of the Principles of the Charter, and involves both the General Assembly and the Security Council. Were such a state to seek readmission, there would need to be a fresh examination of whether it was willing to accept and comply with its obligations under the UN Charter. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Indeed, such examination ought to be more thorough than in the case of initial admission, given prior failings by the expelled state. Furthermore, the fact that both the Security Council and the General Assembly need to concur in expulsion suggests that their involvement would be required for readmission.

5.  State succession and membership: problems of extinction and continuity 8.52  The creation of new states as well as the dismemberment—or even extinction—of existing states are not unusual features of international relations. History reveals that these changes with respect to the legal personality of states tend to happen in waves (p. 295) that reflect widespread political changes of the time. The episode of decolonization in the 1960s and 1970s led to the admission of many new states to the UN.169 A subsequent wave of the creation of new states arose out of the political changes that occurred in central and eastern Europe in the 1990s with the dissolution of the Soviet Union, the SFRY, and Czechoslovakia.170 8.53  In almost all cases, where a new state has been created as a result of independence achieved from an existing and still subsisting state, there has been little doubt that the new state will only gain admission to UN membership by application of the criteria and the procedure provided for in Article 4 of the Charter,171 though often questions have arisen as to whether the new entity was indeed to be regarded as independent and as having fulfilled the criteria for statehood.172 In cases of independence arising from decolonization,173 it was not disputed that the parent state continued to subsist and retained its UN membership. Even outside the decolonization context, in the vast majority of cases where states achieved independence from a member of the UN, it has been accepted that the rump state (the state left after the separation of the newly independent state or states) continues to have the same legal personality as, and retains the membership of, the original parent state.174 This occurred in the cases listed in the following paragraph. In all these cases, the rump state claimed to be the same legal person as the parent state, and this claim was accepted by the separating state or states. Consequently, no other state objected to the claim of continuity, and while the new state had to apply for membership in the UN,175 the rump state was recognized as retaining the membership of the parent state. (p. 296) 8.54  The membership of the following states within the UN was regarded as continuing, despite the emergence of a new state on the territory of the pre-existing state: •  India (when Pakistan separated from it in 1947);

176

•  United Arab Republic (when Syria separated in 1961);

177

•  Malaysia (when Singapore separated from it in 1965);

178

•  Pakistan (when Bangladesh separated from it in 1971);

179

(p. 297) •  the Soviet Union (when Estonia, Latvia, and Lithuania separated in early 1991); 180 •  Ethiopia (upon the separation of Eritrea in 1993);

181

•  Serbia (upon the separation of Montenegro in 2006);

182

•  Sudan (upon the separation of South Sudan in 2011).

183

and

The case of the dissolution of the Soviet Union, upon the independence of the 11 other Soviet Republics184 is also a case where the rump state (the Russian Federation) claimed to be the same legal person as the parent state (the Soviet Union), and this claim was accepted by the separating states and not objected to by third states. However, as this is a

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case where questions may be asked as to whether there was indeed continuity as a matter of law, it will be discussed further.185 8.55  Cases of divided states and of merger, which raise special questions as to whether a new state has been created, and whether the legal personality of one or more of the original states is to be regarded as continuing, have already been discussed.186

5.1  Dissolution of member states 8.56  Particular difficulty with regard to UN membership has arisen in cases where it has been, or may have been, alleged that a state has become extinct on account of its dissolution into its constituents parts (all of which are alleged to have become new states). Where such a claim is considered to be established, the logical consequence ought to be that the membership of the parent state terminates together with the extinction of that state.187 Such a situation will arise where none of the entities that arise out of the political transitions relating to the dismemberment of the parent state can be said to continue the legal personality of the parent state (to be a ‘continuator’ state), all, in law, being new (or ‘successor’) states. The dissolution of Czechoslovakia at the end of 1992 was such a case of extinction. Despite the fact that ‘the preponderance of the economic resources, territory and population of the former CSFR [Czech and Slovak Federal Republic] lay in the Czech Republic’,188 the emerging states agreed to treat the situation as one of dissolution, terminating the personality of old (p. 298) state and its membership in the UN.189 They were both admitted to the UN as new members.190 8.57  In summary, in cases of dissolution of a state that is member of the UN (meaning that more than one state has arisen on the territory of the UN member), two possibilities will exist with regard to the position of the states that emerge out of the process. In one scenario, all the states that emerge will be new states that are successors to the predecessor state, and that predecessor state will become extinct. In a second scenario, one of the states left on the territory of the predecessor state will continue the legal personality of the predecessor state and the other emerging state (or states) will be a new state that is successor to the predecessor state.191 In the first scenario, all the new states will need to apply for membership of the UN.192 However, in the second, the continuator state will not need to rejoin the UN, while the new states will only acquire membership by admission to the UN.193 Thus, the critical question that will determine membership in the UN will be whether or not there exists, with regard to one of the states that emerges from the transition, a case of state continuity or, instead, extinction.194 However, in making a determination as to whether the case is (p. 299) one of continuity, ‘it is necessary to take into account objective as well as subjective factors’.195 The objective factors that come into play in determining continuity will include whether the governmental structures of the predecessor state remain in place in the state said to be a continuator state, and whether the bulk of the territory and population remain with the state said to be a continuator state.196 However, these are not conclusive factors, and practice suggests that subjective factors, such as whether any of the states claim to be a continuator state, and whether that claim is agreed to, or at least acquiesced in, by the other emerging states, as well as the reaction of third states, will probably be more important in determining whether the case is one of continuity or extinction, and consequently with regard to UN membership.197

5.1.1  Break-up of the Soviet Union 8.58  At this point it is worth returning to the case of the break-up of the Soviet Union, which was effected by mutual agreement in December 1991.198 The President of the Russian Federation wrote to the UN Secretary-General, stating that

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the membership of the Union of Soviet Socialist Republics in the United Nations including the Security Council and all other organs and organizations of the United Nations system is being continued by the Russian Federation (RSFSR) with the support of the countries of the Commonwealth of Independent States. In this connection, I request that the name ‘Russian Federation’ should be used in the United Nations in place of the name [‘USSR’]. The Russian Federation maintains full responsibility for all the rights and obligations of the USSR under the Charter of the United Nations including the financial obligations.199 8.59  In line with this request, Russia was permitted to continue the membership of the Soviet Union within the UN. Upon independence, each of the former Soviet Republics (with the exception of the Ukraine and Byelorussia, which were already members of the UN)200 applied for membership of the organization, with the support of Russia, and they were all admitted as new membership in 1992.201 (p. 300) 8.60  Although the claim of continuity between the Soviet Union and the Russia Federation was not opposed within the UN (and acceptance of that claim meant that there was an easy solution to the question of what was to happen to the permanent seat of the Soviet Union at the Security Council),202 it has been claimed that Russia ought to have been treated as a new state that was successor to the Soviet Union.203 However, the continuation by Russia of the Soviet Union’s membership of the UN was in accord both with precedent and with the principles already addressed. The objective factors in that situation point to Russia’s being treated as the continuator state of the Soviet Union, given that Russia had more than three-quarters of the land area of the Soviet Union and more than half of its population, had the seat of government of the Soviet Union, and was in control of the governmental structures of the latter. Moreover, for UN purposes, the Russian domination of the Soviet Union was even more heightened given that Ukraine and Byelorussia were already members of the organization.204 Doubt as to whether Russia was a continuation of the Soviet Union can only be based on the subjective considerations already indicated, and may have arisen because it was for some time unclear whether the former Soviet Republics (including Russia) intended the legal personality of the Soviet Union to continue.205 However, the attitude subsequently taken by Russia and the other former Soviet Republics indicates that they were agreed that Russia would be the continuation of the legal personality of the Soviet Union.206 Indeed, the new states emerging from the USSR supported Russia’s continued membership of the UN.207 Thus, ultimately, the relevant objective factors and the subjective factors (the views of the relevant states) coincide in suggesting that it was right for Russia to be regarded as continuing the membership of the Soviet Union in the UN.

(p. 301) 5.1.2  Dissolution of the Socialist Federal Republic of Yugoslavia

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8.61  While the case of Russia was potentially politically complicated but ultimately legally straightforward, the question of the membership of the states emerging from the dissolution of the SFRY proved to be considerably more difficult. After separation of the other constituent republics of the SFRY, three of whom had been admitted as new members of the UN,208 the FRY was constituted by the two remaining republics (Serbia and Montenegro), claiming that it did not need to apply for admission to the UN as it was, in its view, the legal continuation of the SFRY.209 Unlike the other cases of continuity considered so far, the other states that emerged from the SFRY did not accept the claim of continuity taken by the FRY,210 nor was this claim generally recognized by third states.211 Moreover, the Arbitration Commission of the International Conference on the Former Yugoslavia212 issued opinions stating that: •  ‘the process of dissolution of the SFRY…is now complete and that the SFRY no longer exists’; 213 •  ‘the SFRY’s membership of international organizations must be terminated according to their statutes and that none of the successor states may thereupon claim for itself alone the membership rights previously enjoyed by the former SFRY’; 214 •  ‘the FRY (Serbia and Montenegro) is a new state which cannot be considered the sole successor to the SFRY’. 215 8.62  The Security Council also opposed the FRY’s claims to continuity and adopted Resolution 777 (1992), in which it (p. 302) [c]onsider[ed] that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations; and therefore recommend[ed] to the General Assembly that it decide that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly…216 8.63  The General Assembly acted upon the recommendation of the Security Council and decided that the FRY cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations; and therefore decides that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly.217 8.64  Although Security Council Resolution 777 proclaimed that the state formerly known as the ‘Socialist Federal Republic of Yugoslavia’ had ceased to exist,218 the General Assembly did not repeat that claim. The UN Legal Counsel took the view that ‘the only practical consequence that the [General Assembly] resolution draws is that the Federal Republic of Yugoslavia (Serbia and Montenegro) can no longer participate in the work of the General Assembly’.219 According to him, the Assembly resolution neither terminates nor suspends Yugoslavia’s membership in the Organization. Consequently, the seat and nameplate remain as before, but in the Assembly bodies representatives of the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot sit behind the sign ‘Yugoslavia’. Yugoslav missions at the United Nations

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Headquarters and offices may continue to function and may receive and circulate documents.220 8.65  Since the FRY refused to apply for new membership in the UN until a change of government occurred in 2000,221 the position of that state in the UN was shrouded in uncertainty between 1992 and 2000. In the political organs of the UN, the FRY was not treated as a continuation of the SFRY, and was therefore regarded as being in a position that was factually and legally different from the other precedents already discussed. Application of the principles discussed above suggests that there were good (p. 303) reasons not to accept the claim of continuity. Objectively, although the FRY was the largest part of the dismembered SFRY, it only comprised a minority of the population of the SFRY,222 and a minority of its land mass and resources. In addition, the rejection of the claim of continuity by the other former SFRY republics and third states weakened that claim. 8.66  However, matters were complicated by the treatment of the FRY in a series of judgments by the ICJ arising out of cases brought against and by the FRY. These cases raised issues as to whether the FRY was a party to the Statute of the Court (which is annexed to the Charter of the UN) between 1992 and 2000, and consequently whether it could be a party to cases before the ICJ. In the first of those cases, the stance of the litigating parties meant that prior to the FRY’s admission to the UN in 2000, it was not in either party’s interest to raise the issue of whether Yugoslavia could succeed, or had succeeded, to the SFRY’s obligations under the Statute.223 However, after the abandonment of the claim of continuation of the SFRY’s legal personality in 2000, the FRY decided to raise at the ICJ the question of its position, between 1992 and 2000, with regard to the Statute. It argued that since its admission to the UN in 2000, it had become clear that the FRY was not a party to the Statute prior to that point. The Court rejected an application for revision of its prior judgment on preliminary objections, on the ground that the admission of the FRY to the UN in 2000 ‘cannot have changed retroactively the sui generis position which the FRY found itself in vis-à-vis the United Nations over the period 1992 to 2000, or its position in relation to the Statute of the Court and the Genocide Convention’.224 It thus concluded that the FRY’s request for revision was not based on some new fact that was unknown to the Court and to the party claiming revision when the judgment was given.225 While this reasoning allowed the Court to reject the request, it did not in fact clarify the position of the FRY between 1992 and 2000 (except to say that it was sui generis), nor did it indicate on what theory the Court had proceeded to assume in its earlier judgment that the FRY was entitled to be a party to cases before the Court. 8.67  However, in later proceedings, this time filed by the FRY in April 1999 against a number of members of the North Atlantic Treaty Organization (NATO), the Court took the view that the admission of the FRY to the UN in 2000 ‘effectively put an end to the sui generis position’ of the FRY within the UN, but it ‘did not have and (p. 304) could not have had, the effect of dating back to the time when the Socialist Federal Republic of Yugoslavia broke up and disappeared’.226 On this basis, it held that Serbia and Montenegro was not a Member of the United Nations, and in that capacity a State party to the Statute of the International Court of Justice, at the time of the filing of its Application to institute the present proceedings before the Court on 29 April 1999…227 8.68  As was pointed out by seven judges in a joint declaration, the decision of the Court in 2004 ‘call[ed] into question the solutions adopted by the Court with respect to its

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jurisdiction in the case brought by Bosnia-Herzegovina against Serbia and Montenegro for the application of the Genocide Convention’.228 8.69  The inconsistency between the approaches taken by the Court in these cases was only magnified in later decisions in which the Court addressed the position of the FRY with regard to the UN between 1992 and 2000. In the Court’s 2007 judgment on the merits in the Bosnian Genocide Convention case, the Court held that the 1996 judgment on jurisdiction in the case must be considered as containing a finding, which was res judicata for those proceedings, that the FRY had, on the date of the filing of the application, in March 1993, the capacity to be sued before the Court.229 In 2008, the Court, in a case brought by Croatia against FRY (which by the time of the judgment had been succeeded by Serbia), tried to sidestep the issue of whether the FRY had been a member of the UN at the time of the filing of the application (in July 1999) by holding that the Court was entitled to assess whether the conditions for the jurisdiction over a case were fulfilled, not at the time when the application was filed but at some later date.230 It held that since Croatia could have filed a new application at any time after the FRY had been admitted to the UN on 1 November 2000, considerations of ‘realism and flexibility in certain situations’231 suggested that the Court should not compel the applicant to begin proceedings anew; rather, the Court could hold that the conditions for jurisdiction were fulfilled from the date when the new application could have been filed.232 By approaching matters in this way, the Court did not then have to decide whether the FRY was or was not a member of the UN (p. 305) in July 1999. However, it is striking that the Court had not applied the reasoning in the 2008 judgment in its judgments in the Legality of Use of Force cases,233 where the Court held, in 2004, that it did not have jurisdiction over cases brought by the FRY, in April 1999, because the FRY was not, on the date of the filing of the application, a UN member.234 8.70  It is unfortunate that though the question of the effect of state succession on UN membership has been highly relevant to cases that have come before the Court, and the Court has issued several decisions touching on the issue, little guidance can be gleaned from the Court’s case law as to how issues relating to claims of continuity should be handled. One is thus left with the factors and considerations already outlined.235

6.  Representation of members/credentials 8.71  Membership in the UN is made effective through the representation of the member by individuals acting on its behalf in the organs of the UN. Accordingly, the Charter provides for the appointment by members of representatives to act for them in the principal and other organs.236 Procedures have been established for verifying that persons who claim to represent members are indeed appointed by the states concerned to be their representatives. This will involve the members of the delegation presenting their credentials for verification. Those credentials are normally presented to the SecretaryGeneral, who will then pass them on, for verification, to the competent authority within the organ concerned. Each organ is entitled to assess and decide whether to accept the credentials of representatives to that organ. However, given the position of the General Assembly as the plenary organ, it has been stated that the decisions adopted by the General Assembly with regard to credentials of representatives of Member States to sessions of the General Assembly provide authoritative guidance to other United Nations organs and conferences and in practice the decisions adopted by these organs and conferences always conform to the attitude adopted by the General Assembly in dealing with questions concerning representation and credentials.237

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(p. 306) 6.1  The procedure for approval of credentials 8.72  The procedure with regard to the presentation and approval of credentials is contained in the rules of procedure of the relevant organs.238 Credentials239 are to be issued by the Head of State or Government, or by the Foreign Minister of a state, and submitted to the UN Secretary-General.240 In the case of the Security Council, credentials are approved by the Council itself.241 The General Assembly appoints a Credentials Committee at the beginning of each session to examine the credentials of representatives. The committee is composed of nine members appointed by the Assembly upon the proposal of the President of the Assembly.242 The Committee will examine the credentials of representatives on the basis of information provided by the Secretary-General.243 It will submit a report to the Assembly, which will then take a decision on the credentials based on the report of the Committee. Representatives are entitled to sit, participate in the work of the Assembly, and even to vote until such time as their credentials are approved.244 Even where an objection has been made to the credentials of a representative, he/she is entitled to be seated provisionally, with the same rights as other members, until the Credentials Committee has reported.245

6.2  Representation and determinations as to which entity is the government of a state 8.73  Representation and the corresponding issue of presentation of credentials relates to the question of which entity is—and which persons are—entitled, or have the authority, to act for the state within the organ or organization.246 Issues relating to representation have arisen principally in cases of competing claims by different authorities, each of which claims to be the government of the state. However, there (p. 307) have also been cases where the credentials of representatives have been challenged by other states and, on occasion, rejected by the UN, even though there was no competing authority or government. In the latter case, the member is thereby prevented from participating in the work of the organ or organization, and the rejection of the credentials is more akin to suspension of membership rights, but not in accordance with Article 5 of the UN Charter.247

6.2.1  Representation and examination of credentials in cases of competing authorities 8.74  On a number of occasions, in the wake of political upheaval in a country, the General Assembly (or Security Council) has been faced with more than one delegation claiming to represent the state. In such cases, a determination needs to be made as to which group, if any, is to be regarded as the government of the state and able to issue credentials for a delegation to the UN.248 This has occurred with respect to Iraq in 1958;249 Congo in 1962;250 Yemen in 1962,251 Cambodia/Kampuchea from 1979 to 1991, and in 1997;252 Haiti in 1991;253 Afghanistan from 1989 and until 2001;254 and Libya (p. 308) in 2011.255 Although the Assembly (or Council) has the duty, for the purpose of making decisions on representation and credentials, to decide which of the competing authorities is to be regarded as the legally established government, questions remain as to the criteria to be applied in making that determination.256 8.75  In some cases the Assembly failed to reach a decision, usually with the effect that the group that had previously been accepted as representing the state was allowed to continue to represent that state,257 though in one case no one was allowed to do so.258

6.2.2  Representation and examination of credentials in cases of disputed authorities but with no rival claimants: Israel, Hungary, South Africa

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8.76  More problematic have been cases where the credentials of representatives have been questioned but in the absence of a competing delegation representing the state. This occurred with respect to Israel over many years, though in no case were the credentials of the delegation representing that state rejected.259 The validity of the credentials of the delegation representing Hungary were also at issue after the Soviet intervention in that country in 1956, despite the absence of an alternative delegation. The Assembly did not give formal approval to those credentials for a number of years, but with the effect that the representatives were seated provisionally with the right to take part and to vote.260 As a result, there was no deprivation of membership rights. 8.77  The most contentious and problematic case of rejection of the credentials of a member was the situation relating to South Africa between 1974 and 1994, when the (p. 309) Assembly refused to recognize the credentials of the representatives of that Government as part of the condemnation of the policy of apartheid. The Assembly had from 1970 decided not to accept the credentials of the South African delegation (contrary to the positon adopted by the Credentials Committee),261 but the members of that delegation were nevertheless allowed to participate and vote in the Assembly.262 However, after a draft Security Council resolution recommending suspension of South Africa from the UN had failed to be adopted in 1974, as a result of the vetoes of the UK, the US, and France,263 a proposal was accepted in the Credentials Committee to accept all the credentials except those of South Africa. The General Assembly approved this report.264 On this occasion, the President of the General Assembly interpreted the rejection of the South African credentials as ‘tantamount to saying in explicit terms that the General Assembly refuses to allow the South African delegation to participate in its work’.265 This approach was to last until the fall of apartheid in 1994. 8.78  The rejection of the credentials of the representatives of the South African Government amounted to a deprivation of that state’s membership rights and was akin to suspension of South Africa from the organization. However, this ‘suspension’ was achieved without having to go through the procedure spelled out in Article 5 of the UN Charter, and it was therefore of questionable legality.266

6.3  The representation of China and Taiwan at the UN 8.79  The question of the participation of China (and correspondingly Taiwan) in the UN after the Communist Revolution has for the most part been approached from the perspective of representation rather than of membership. Both China and Taiwan subscribe to the ‘one China’ policy, maintaining that there is only one Chinese state, with each claiming to be the authority of that same state.267 On this view, the only relevant question is: ‘Which is the authority entitled to represent China in the UN?’ Until 1971, the authorities in Taipei, Taiwan (the ‘Republic of China’) held the seat of China in the UN. However, in October 1971, the General Assembly decided that (p. 310) ‘the representatives of the Government of the People’s Republic of China are the only lawful representatives of China to the United Nations and that the People’s Republic of China is one of the five permanent members of the Security Council’.268 It was also Decide[d] to restore all its rights to the People’s Republic of China and to recognize the representatives of its Government as the only legitimate representatives of China to the United Nations, and to expel forthwith the representatives of Chiang Kai-shek from the place which they unlawfully occupy at the United Nations and in all the organizations related to it.269

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8.80  However, in 2007, Taiwan unsuccessfully applied for membership of the UN, with the Secretary-General taking the decision not to forward the application on to the Security Council for consideration on the ground that the application was inconsistent with the General Assembly’s resolution of 1971.270

7.  Observers 8.81  In addition to member states, and quite apart from officials and experts on mission for the organization, other entities also participate in the work of the organs of the UN. There are various entities that may seek to participate in the work of the UN and, in the practice of the organization, the ability of entities to take part in the organization differs considerably, as do the terms under which they may participate.271 Unlike the position with regard to membership in the organization, where there is a single centralized process for determining whether a state is to be admitted as a member of the organization as a whole, the question of participation by other entities in the work of the organization is not centralized in any one organ but rather devolved to the organ in which participation is sought. The question of participation of non-members of the organization in the work of UN organs is dealt with in a few (p. 311) provisions of the Charter and not in any uniform fashion.272 Each organ may determine which entities may participate in its work and on what basis.273 8.82  In the practice of the UN Secretary-General and of the General Assembly, a number of entities that are not members of the UN have been granted permanent observer status in the organization, with the result that they have the right to participate in the work of the Assembly.274 These ‘permanent observers’ are in effect given a standing invitation to participate on a regular basis in the work of the Assembly. Permanent observers may choose to establish permanent offices at UN Headquarters. While (p. 312) many have done so, others have not.275 Historically, observer status has been granted to (i) to some states that are not members of the UN; (ii) some intergovernmental organizations; (iii) national liberation movements; and (iv) a few special non-governmental international organizations. However, in 1994, the General Assembly decided that observer status ‘should in the future be confined to States and to those intergovernmental organizations whose activities cover matters of interest to the Assembly’.276 8.83  As observer status is not provided for in the UN Charter, it is up to the General Assembly to decide how broad or limited, in both material and temporal terms, are the rights of participation it wishes to confer. In particular cases, the Assembly has specified in detail the rights and privileges of observer status conferred on a particular entity, and has granted more extensive rights to some observers than to others.277 Observer status does not confer the right to vote within the Assembly, as that is a right limited to members,278 nor will it usually confer the right for the observer to submit its own candidacy for any election or appointment.279 8.84  Rights of participation may be limited to the work of the Assembly or some other particular organ, or those rights of participation may be granted only temporarily or (p. 313) permanently.280 However, in many cases the relevant General Assembly resolution will simply specify that the Assembly invites the entity in question to participate ‘in the sessions and the work of the General Assembly in the capacity of observer’.281 In other cases, the resolution may be more detailed.282 In either case, questions may arise as to the extent of the rights of participation conferred on the entity concerned, particularly as to whether observer status grants right of participation in subsidiary organs or international conferences convened by the Assembly.283 Also contentious is whether a General Assembly resolution providing for observer status may confer rights of participation on observers in other organs of the UN, or in international conferences convened by other organs. In the

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absence of any Charter provisions dealing with these matters, it would seem difficult to justify the imposition by the Assembly of participation rights on other organs of the UN. 8.85  The privileges and immunities of observers are such as are derived from the relevant treaties, including host state agreements, and from the national law of the host state.284 The Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character makes provision for the privileges and immunities of permanent observer missions, and seeks to grant the same privileges and immunities to members of permanent observer missions as are granted to permanent missions of member states. This goes beyond customary law and has been opposed by many states, (p. 314) including host states, which have refused to ratify the treaty.285 However, some host state agreements and the national law of some states do grant missions of permanent observers the same rights and privileges as those accorded to the permanent missions of member states.286 The Headquarters Agreement between the US and the UN is not as extensive in this regard, but it does grant rights of access to the UN for observers.287

7.1  Observer non-member states 8.86  From the early years of the UN, states that were not yet members of the organization perceived a need to observe and participate in the work of the UN. In addition to invitations issued by the General Assembly, under Article 35(2) of the Charter, to non-members to take part in Assembly debates of particular relevance to them,288 non-member states began to appoint observers and establish missions to follow the work of the UN.289 These observer missions were integrated into the work of the UN simply on the basis of communications with the Secretary-General (which were akin to a form of receipt of credentials),290 even though the status of such missions and persons ‘had not yet been determined’.291 Indeed, when a resolution was first proposed in the General Assembly that invitations be sent to nine states ‘to send an observer to sessions of the General Assembly and its committees…in order to enable them to express their views and furnish information whenever consulted by the delegation of any Member state’, doubts were expressed as to the constitutionality of the proposal, since the UN Charter did not provide for observer status, and the proposal was rejected.292 8.87  However, over time the General Assembly accepted the practice of the SecretaryGeneral in allowing the establishment of observer missions by non-member states.293 (p. 315) Indeed, the Assembly itself has, in the cases of the Holy See294 and Palestine,295 designated entities as non-member observer states.296 8.88  Delicate questions might arise as to whether an entity seeking observer state status is indeed a state under international law. This would have been a more sensitive question for the Secretary-General to determine in the era when he was responsible for receiving communications from non-members seeking permanent observer status and he was guided by the degree of recognition of the entity in question.297 8.89  In addition, questions have also arisen, particularly with regard to Palestine, as to whether the decision to confer on it ‘observer State status’ within the UN effectively confers on it statehood, thus giving the Assembly’s decision a constitutive effect.298 This question is important not only because of the theoretical implications, but also because of the practical issues that follow from the answer to it. In particular, did the recognition of Palestine as an observer state open the door to Palestinian ratification of treaties and acceptance of the jurisdiction of international tribunals? Whether Palestine could ratify the many important treaties in respect of which the Secretary-General serves as depositary would, in the practice of the Secretary-General, depend on the formula used in the treaty as to which entities could give consent to be bound by it. Likewise, whether Palestine is able to take part in diplomatic conferences open to states will also depend on which formula is used by the instrument that calls for the conference. Where the treaty (or the conference) is open to states within the (p. 316) so-called ‘Vienna formula’, the matter is more From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

straightforward.299 However, where the treaty or conference is open to ‘any state’ or ‘all states’ without further specification, the Secretary-General has said that he ‘would not wish to determine, on his own initiative, the highly political and controversial question of whether or not the areas whose status was unclear were states’.300 The practice of the Secretary-General in such cases was to follow the practice of the General Assembly in determining whether an entity is to be regarded as a state or not.301 On that basis, the recognition of Palestine as an observer non-member ‘state’ by the General Assembly is an indication302 by the (p. 317) Assembly that Palestine (like the other current non-member observer state, the Holy See303) is to be regarded as a state for the purposes of treaties or conferences that are open to ‘all states’ or ‘any state’.304

7.2  Intergovernmental organizations as observers 8.90  The UN as an international organization is embedded within, and is the central part of, a broader family of UN organizations composed of the UN itself, UN specialized agencies,305 and other international bodies that have some formal relationship with the UN. Article 70 of the UN Charter provides that ECOSOC may make arrangements for representatives of the specialized agencies to participate in the deliberations of ECOSOC and its commissions. The details of these arrangements are set out in the relationship agreement between the UN and the specialized agency, and in the ECOSOC Rules of Procedure.306 8.91  While specialized agencies are not regarded as observers within the UN, the UN is also a part of a broader fabric of intergovernmental organizations that seek to promote international cooperation. Although there was some opposition in the early years of the UN,307 many of these organizations have been granted permanent observer status at the UN by a decision of the General Assembly.308 The list includes regional organizations like the African Union, the EU, the Association of South East Asian States, and the Organization of American States (OAS). It also includes organizations dealing with specialized issues, such as the European Organization for Nuclear (p. 318) Research and the Global Fund to Fight AIDS, Tuberculosis, and Malaria. In addition, some organizations or bodies created as a result of treaties adopted under the auspices of the UN, but which are not specialized agencies, have also been given observer status, for example the International Criminal Court, the International Seabed Authority, and the International Tribunal for the Law of the Sea.

7.3  National liberation movements as observers 8.92  From the early 1970s, national liberation movements began to participate in a significant way in the work of the General Assembly, as well as in that of some subsidiary organs.309 The PLO was the first national liberation movement to be invited to participate in the deliberations of the General Assembly,310 and it was later granted observer status in the Assembly.311 Subsequently, the Assembly decided to invite all national liberation movements recognized by the Organization of African Unity (OAU)312 to participate, as observers, on a regular basis in the work of the Assembly, its committees, and subsidiary organs, as well as in conferences, seminars, and other meetings held under the auspices of the UN and which related to their countries.313 In 1976, the Assembly specifically granted observer status to the South West Africa People’s Organization (SWAPO).314 Following the lead of the General Assembly, ECOSOC called upon specialized agencies to make appropriate arrangements for the participation of national liberation movements recognized by the OAU, with regard to proceedings relating to their countries.315 After Palestine was granted observer nonmember state status by the Assembly,316 there remained no national liberation movement with observer status at the UN.

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7.4  Non-governmental organizations as observers 8.93  The main way in which private NGOs cooperate in the work of the UN is by obtaining consultative status with ECOSOC, as is provided for in Article 71 of the (p. 319) UN Charter.317 As a general matter, NGOs and other private actors are not granted observer status by the General Assembly. However, a limited number of international organizations of a non-governmental character have been invited to participate as permanent observers in the UN. The organizations in question are the ICRC;318 the International Federation of Red Cross and Red Crescent Societies (IFRC);319 International Olympic Committee;320 the Sovereign Military Order of Malta;321 and the Inter-Parliamentary Union.322 These organizations have a sui generis status. It could be argued that some have a form of international legal personality accorded by reference to their historical importance (the Sovereign Military Order of Malta), or by virtue of the functions accorded to them by universally ratified treaties (the ICRC in relation to the Geneva Conventions on the law of armed conflict). The Inter-Parliamentary Union is not an intergovernmental organization in the sense that its members are not states, but it is an organization with national parliaments as its members. It has even been argued that the IFRC has a type of international personality because of the special characteristics its members (National Red Cross and Red Crescent societies) have and the functions accorded to them usually by national law.323 8.94  The invitation to these NGOs, in the 1990s and in the twenty-first century, to participate in the work of the Assembly as observers, is a reflection of how liberal the attitude towards permanent observer status in the UN has become. It will be recalled that when it was first proposed to invite non-member states and intergovernmental organizations to become observers, there was vigorous opposition, with the suggestion that such a move was contrary to the UN Charter.324 However, the view has come to be taken that there is a benefit in integrating a wide range of entities into the work of the UN with a view to better securing the purposes of the organization. Nevertheless, the General Assembly decided that observer status ‘should in the future be confined to States and to those intergovernmental organizations whose activities cover matters of interest to the Assembly’.325

Footnotes: 1

  Fifty-one states became original members of the UN under Art 3. Forty-seven of those states had signed the Declaration of the United Nations. The US, the UK, the Soviet Union, and China signed the Declaration o January 1942; 22 other states signed it the following day; and a further 21 states signed it subsequently. Four states—Argentina, Denmark, and the Byelorussian and Ukrainian Soviet Socialist Republics—participated at the United Conference on International Organization held in San Francisco but had not previously signed the UN Declaration of 1942. The question of the statehood of the Byelorussian and Ukrainian Soviet Socialist Republics is dealt with later in this section. Although Poland signed the Declaration, it did not participate at the San Francisco Conference as a result of a dispute about which government was entitled to represent it. See generally, Russel and Muther, A History of the United Nations Charter (1958); Fastenrath, ‘Article 3’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), marginal notes (MN) 3–4; Vedder, ‘Article 110’ in Simma et al (eds), above, MN 9–11; Goodrich and Hambo, Charter of the United Nations: Commentary and Documents (1949), 78–9. 2

  Under Art 110, the consent of signatory states to be bound by the UN Charter was to be expressed by ratification. Instruments of ratification were deposited with the US. The Charter was to come into force only after ratification by those states that would become the five permanent members of the UN and a majority of the other signatory states. This was achieved on 24 October 1945, the date on which the USSR, the Ukraine SSR, Byelorussian From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

SSR, and Poland deposited their instruments of ratification. On that date, the UN Charter entered into force for five states named in Art 110 and 24 other states (being a majority of the 46 other states signatory to the UN Charter). 3

  Indeed, Art 2(1) of the UN Charter provides that the organization ‘is based on the principle of sovereign equality of all its Members’, and no provision derogates from this in relation to original and other members. 4

  During the Dumbarton Oaks negotiations for the drafting of the UN Charter, the USSR suggested the inclusion of all 16 Soviet Republics as original members of the UN. According to the USSR, each of these Republics was autonomous, and allowed under the Soviet Autonomy Decree of 1 February 1944 ‘to enter into direct relations with foreign States’. Although this proposal was initially resisted by others, the inclusion of two Soviet Republics, in addition to the USSR, was agreed at the Yalta conference, in exchange for USSR approval of US proposals regarding voting in the Security Council. See ‘Memo of Decisions Reached at the Crimean Conference in the Matter of the Two Soviet Republics’ in Foreign Relations of the United States: Diplomatic Papers. Conferences at Malta and Yalta, 1945, UN Doc 505, 991–2 (1955); Higgins, The Development of International Law through the Political Organs of the United Nations (1963), 14–16; Russel and Muther, n 1, 636. 5

  The Philippines became independent on 4 July 1946, and India did not become a selfgoverning dominion within the British Commonwealth until 15 August 1947, in both cases after they became members of the UN. However, India had been a member of the League of Nations, membership of which was open to ‘any fully self-governing State, Dominion or Colony’ (Art 1, Covenant of the League of Nations). In the drafting of the UN Charter, it was suggested first that membership be open to ‘all self-governing States and Dominions’, and later the word ‘nation’ was suggested but then replaced by ‘state’. However, both India and the Philippines were regarded as worthy of original membership in view of their participation in international affairs and their record in the Second World War. See Higgins, n 4, 16; Russel and Muther, n 1, 636; Fastenrath, n 1, MN 4 and 6. It has also been noted that the ‘legal status of Lebanon and Syria [both of which were original members] was not free from doubt’ given that France still claimed some responsibilities in relation to these territories. See Fastenrath, n 1, MN 4 and 6; and Higgins, n 4, 16, fn 25. 6

  See Goodrich and Hambo, n 1, 79–80: ‘[I]t is quite clear in view of the attendant circumstances that the word “state” is not to be understood in its usual legal sense.’ See also Higgins, n 4, 17. 7

  Fastenrath, n 1, MN 6; Higgins, n 4, 16.

8

  See section 2.2, ‘The criteria for admission’.

9

  UN Charter, Art 4(2).

10

  Also note that the application for UN membership is first submitted to the SecretaryGeneral, who then transmits it to the Security Council under Rule 59 of the Provisional Rules of Procedure of the Security Council. Nevertheless, when Taiwan submitted an application for membership in July 2007, the Secretary-General refused to accept the application on the grounds that ‘[i]n accordance with [GA Res 2758, 25 October 1971], the United Nations considers Taiwan for all intents and purposes to be an integral part of the People’s Republic of China’: see Tkacik Jr, ‘Taiwan’s Status Remains “Unsettled”’, Heritage Foundation, 1 October 2007, at http://www.heritage.org/defense/commentary/taiwansstatus-remains-unsettled; Nieto-Navia, ‘Are those Norms Truly Peremptory?: With Special Reference to Human Rights Law and International Humanitarian Law’ in The Global Community Yearbook of International Law and Jurisprudence 2015 (ed Capaldo, 2016), 58. The refusal was criticized by the President of Taiwan, who stated that the ‘Taiwan government believes that only the UN Security Council and the General Assembly have the right to decide on the application’, and that ‘no individual, including the office of the

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secretary-general, has the right to decide on Taiwan’s application’: see Ryan, ‘UN Rejects Taiwan’s Application for Membership’, VOA News, 1 November 2009, at http:// www.voanews.com/a/a-13-2007-07-24-voa18/402694.html. The Secretary-General’s action was also criticized by a group of states in a ‘Letter dated 13 August 2007 from the representatives of Belize, Burkina Faso, the Gambia, Honduras, Malawi, the Marshall Islands, Nauru, Palau, Saint Kitts and Nevis, Saint Vincent and the Grenadines, Sao Tome and Principe, Solomon Islands, Swaziland and Tuvalu to the United Nations addressed to the President of the General Assembly’, UN Doc A/62/193 (2007), where it was stated: We respectfully stress that the Secretary-General’s response goes beyond his prerogatives according to the sections of the Charter of the United Nations and the rules aforementioned. The Secretary-General’s unilateral determination that the United Nations considers ‘Taiwan for all intents and purposes to be an integral part of the People’s Republic of China’ was a usurpation of the exclusive right and obligation of the Security Council to make such determination pursuant to rule 60 of the provisional rules of procedure of the Security Council… The Secretary-General’s actions in this instance can only be justified on the basis of the prior decision of the General Assembly in GA Res 2758 (1971). However, whatever might have been the status of these entities in 1971, it is logically possible that the relevant facts had changed by 2007 and, if that were so, it would have been open to the Security Council and the General Assembly to reach a different conclusion in 2007. For that reason it could be argued the criticism of the Secretary-General’s action has merit. 11

  See UN Charter, Art 27(3). See also ch 10, ‘Voting’.

12

  Vetoes of admission (with the state exercising the veto and the year of exercise in brackets): Transjordan (USSR, 1946); Ireland (USSR, 1946); Portugal (USSR, 1946); Transjordan (USSR, 1947); Ireland (USSR, 1947); Portugal (USSR, 1947); Italy (USSR, 1947); Austria (USSR, 1947); Finland (USSR, 1947); Italy (USSR, 1947); Italy (USSR, 1948); Ceylon (USSR, 1948); Republic of Korea (USSR, 1949); Nepal (USSR, 1949); Portugal (USSR, 1949); Transjordan (USSR, 1949); Italy (USSR, 1949); Finland (USSR, 1949); Ireland (USSR, 1949); Austria (USSR, 1949); Ceylon (USSR, 1949); Italy (USSR, 1952); Libya (USSR, 1952); Japan (USSR, 1952); Vietnam (USSR, 1952); Laos (USSR, 1952); Cambodia (USSR, 1952); Jordan (USSR, 13 December 1955); Ireland (USSR, 13 December 1955); Portugal (USSR, 13 December 1955); Italy (USSR, 13 December 1955); Austria (USSR, 13 December 1955); Finland (USSR, 13 December 1955); Ceylon (USSR, 13 December 1955); Nepal (USSR, 13 December 1955); Libya (USSR, 13 December 1955); Cambodia (USSR, 13 December 1955); Japan (USSR, 13 December 1955); Laos (USSR, 13 December 1955); Spain (USSR, 13 December 1955); Mongolia (China (whose seat the Nationalist Government of Taiwan held at the time), 13 December 1955); Japan (USSR, 15 December 1955); Republic of Korea (USSR, 1957); Vietnam (USSR, 1957); Republic of Korea (USSR, 1958); Vietnam (USSR, 1958); Mauritania (USSR, 1960); Kuwait (USSR, 1961); Bangladesh (China, 1972); Republic of South Vietnam (USA, 1975); Democratic Republic of Vietnam (USA, 1975); Republic of South Vietnam (USA, 1975); Angola (USA, 1976); Vietnam (USA, 1976). See GA Res A/58/47 (2004), Annexure III; UN Dag Hammarskjöld Library Research Guides, ‘Security Council—Veto List’, at http:// research.un.org/en/docs/sc/quick/veto; Sievers and Daws, The Procedure of the United Nations Security Council (4th edn, 2014), 300–11. 13

  For such recommendations, see GA Res 296 (IV) (1949) (‘Deeming it important to the development of the United Nations that all applicant States which possess the qualifications for membership set forth in Article 4 of the Charter should be admitted’); and US Senate

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Res 239 of 11 June 1948, (1949) 43 AJIL 634 (‘Voluntary agreement to remove the veto… from the admission of new members’). 14

  Provisional Rules of Procedure of the Security Council, Rule 58; Rules of Procedure of the General Assembly, Rule 134. No particular format is set out for the ‘formal instrument’, but ‘what is indispensable is that the State’s request is made by its organs that have the power to undertake international obligations’. See Conforti and Focarelli, The Law and Practice of the United Nations (4th rev edn, 2010), 30. 15

  After a period of uncertainty, the Council has adopted the practice of deciding upon applications separately and in the chronological order of their receipt. See UNSC RP (1993– 95), ch VII, pt IV, p 196; UNSC RP (1996–99), ch VII, pt IV, p 241; UNSC RP (2000–03), ch VII, pt IV, p 260. There does not appear to be any guidance regarding the timing within which the Security Council should deal with applications (save that Rule 60 of the Security Council’s Rules of Procedure requires that a recommendation for admission by the Security Council be provided to the General Assembly at least 25 days before a regular sitting of the General Assembly, or four days before a special session). In addition, practice with regard to the time that elapses between an application for membership and a recommendation by the Council has been mixed over the course of UN history. A particularly extreme case is that of both North Korea and South Korea, which first applied for membership in 1949 but were not admitted until 1991. By 1955, there was a considerable backlog of applications for admission. The General Assembly requested the Security Council ‘to consider, in the light of the general opinion in favour of the widest possible membership of the United Nations, the pending applications for membership of…eighteen countries [being Albania, Jordan, Ireland, Portugal, Hungary, Italy, Austria, Romania, Bulgaria, Finland, Ceylon, Nepal, Libya, Cambodia, Laos, Spain, Japan, and Mongolia] about which no problem of unification arises’ (GA Res 918 (X) (1955). The Security Council subsequently considered the requests on 13–15 December 1955, at which point disputes arose as to the admission of Mongolia and Japan, with China (represented by the Nationalist Government of Taiwan) vetoing inclusion of the Republic of Mongolia in the list of states recommended for admission, and the Soviet Union subsequently vetoing the inclusion of Japan, apparently in an attempt to secure the admission of both Mongolia and Japan. As a result, 16 of the 18 states were recommended by the Security Council for admission (and were admitted by resolution of the General Assembly: GA Res 995 (X) (1955) with Japan being admitted in 1956 and Mongolia in 1961 (having first sought admission in 1946) (see UNSC Docs S/PV.704, 13 December 1955; S/PV. 705, 14 December 1955; and S/PV.706, 15 December 1955). See also Grant, Admission to the United Nations: Charter Article 4 and the Rise of the Universal Organisation (2009), ch 3. Sievers and Daws describe this period of inaction followed by ‘package admission’ as follows: ‘from 1950 to 1954, owing to considerable disagreement among the Council members, the Council approved no applications for membership other than that of Indonesia. A compromise was reached in 1955 whereby, in a single resolution [UN Doc S/ RES/109, 14 December 1955] the Council acted affirmatively on a total of sixteen pending applications, and thereafter the application process proceeded more normally’ (Sievers and Daws, n 12, 420). 16

  Provisional Rules of Procedure of the Security Council, Rule 59. The Committee on Admission of New Members is a standing committee of the Security Council established on 17 May 1946 to examine any application for membership referred to it. The practice of the Council in referring applications for admission to the Committee has been inconsistent over the years. The workings of the Committee can be broken down into three phases (Sievers and Daws, n 12, 417). In the first phase (1946–9), all but four applications for admission were referred to the Committee (UN Docs S/PV.598, 10 September 1952 [48], [84], [95]; S/ PV.599, 12 September 1952 [63]–[64], [104]–[187]). In the second phase (1950–71), no applications were referred to the Committee. After the package deal recommending the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

admission of the 16 states referred to in n 15, ‘applications were generally accepted by the Council without much question’. However, concerns were raised regarding the ‘rather casual way some applications for membership were being dealt with by the Council, and in 1970 France suggested that the Committee be reactivated’ (Sievers and Daws, n 12, 417; UN Doc S/9836, 15 June 1970 at [5]; UN Doc S/PV.1554 of 10 October 1970). Beginning with the Council’s referral of Bhutan’s application to the Committee on 9 February 1971, all subsequent applications for membership have been referred to the Committee by the President of the Council (usually at a meeting of the Council) unless the Council decides otherwise. For the updates on the membership admission process before the Security Council and the Committee, see http://www.securitycouncilreport.org/admission-of-new-unmembers/. For the documents for admission of new UN members, see http:// www.securitycouncilreport.org/un-documents/admission-of-new-un-members/. 17

  See, eg, UNSC RP Supp no 17 (2010–11), pt IX—Subsidiary organs of the Security Council: committees, tribunals and other bodies, p 6, available at http://www.un.org/en/sc/ repertoire. In most cases since 1971, when the Council resumed the practice of referring applications for membership to the Committee, the practice has been for the Committee to meet on the same day as the decision is taken by the Council to refer the application for membership to it. It usually reports back to the Council on the same day, and if it recommends admission, its report will include a draft resolution to that effect. The Council has, since 1971, ‘usually convened a formal meeting to review the report of the Committee, on the same day that the Council took the decision to refer to the Committee and that the Committee met to consider the application’: see Sievers and Daws, n 12, 419. As can be seen from the speed with which the Committee usually works, on most occasions its functions have largely been pro-forma and routine. However, there have been a number of occasions when the Council and the Committee have not been able to move with such speed, with the case of Palestine, described in n 18, being a prominent one. 18

  A particularly well-known example of the interplay between the Committee and the Council arose following the 2011 application by Palestine for admission to the UN. The Council (in accordance with its practice since 1971) referred the application by Palestine for admission to the Committee on 28 September 2011, which, having held three formal meetings and five informal meetings (four of which were held at expert level), stated in its report to the Security Council that it could not make a unanimous recommendation regarding the application to the Security Council (see, eg, UN Doc S/2011/705, 11 November 2011). While that would not have precluded a Security Council member from submitting a draft resolution recommending admission of Palestine, no such resolution was tabled (see Sievers and Daws, n 12, 442–3). Instead, on 29 November 2012 the General Assembly adopted Resolution 67/19, which accorded Palestine ‘non-member observer State status’, and also expressed the hope that the Security Council would favourably consider Palestine’s application. 19

  The Committee will be assisted by summaries of information prepared by the Secretariat, but it may also consider information submitted by the applicant or any member state, or may request information from the applicant or the government of any member State. See UNSC RP (1946–51), ch V—‘Subsidiary Organs of the Security Council’, pp 194– 5. In its first report, the Committee stated: ‘It was the leading principle of our work to examine the applications in the light of the requirements of the Charter, which means, first, the applicant State must be peace-loving; secondly, the applicant State must formally accept the obligations of the Charter; thirdly, the applicant State must be able and willing to carry out the obligations of the Charter in the judgment of the Organization. In order to give the members of the Security Council sufficient basis to reach a decision, we tried to collect…all information available on applicant States. We discussed each application thoroughly and we decided to present in our report the resume of all statements and to include some basic statements in full, as appendices. We hope that the report may help the Council and From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

perhaps may shorten its discussions by avoiding repetition of declarations. Finally, we presented in every case the opinion of the Committee as to whether or not sufficient information has been placed before the Committee to form a basis for decision by members of the Security Council. We also included a statement of the formal attitudes of various delegations regarding the desirability of admission of applicant States’ (ibid, p 196). 20

  For a discussion of the arguments, see Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (1950), 61–3, who notes that it may be argued that Art 4(2) has the effect that the Security Council only has an ‘advisory function’ when it comes to the admission of new states. On this view, the General Assembly makes the decision to admit, whereas the Security Council only recommends. However, it is highly unlikely that the drafters of the UN Charter intended such a subordinate role for the Security Council. It is more likely that the ‘intended meaning’ of Art 4(2) is that a state will be admitted after the General Assembly approves a favourable decision by the Security Council. As has been noted by Kelsen, ‘[t]he “recommendation” of the Security Council stipulated in Article 4, paragraph 2, is a decision which has the same legal effect as the decision of the General Assembly stipulated in that provision’ (ibid). 21

  Competence of the General Assembly for the Admission of a State to the United Nations (Advisory Opinion) ICJ Rep 1950, p 8. The General Assembly sought the Advisory Opinion on the following question: ‘Can the admission of a State to membership in the United Nations, pursuant to Article 4, paragraph 2, of the Charter, be effected by a decision of the General Assembly when the Security Council has made no recommendation for admission by reason of the candidate failing to obtain the requisite majority or of the negative vote of a permanent member upon a resolution so to recommend?’ The Opinion was sought after the Soviet Union continued to veto applications for admission that met the requirements of Art 4(2) on the basis that certain applications for admission should be dealt with collectively (Record of Proceedings of the 252nd plenary meeting of the General Assembly (UN Doc A/PV.252, 22 November 1949)). The General Assembly had previously sought an Advisory Opinion on whether a permanent member of the Security Council, having recognized that a state seeking admission complied with the requirements of Art 4(2) of the Charter, could ‘subject its affirmative vote to the additional condition that other States be admitted to membership in the United Nations together with that State’. In that Opinion, the majority of the Court held that the conditions in Art 4(2) were exhaustive, and thus ‘a Member of the Organization cannot, while it recognizes the conditions set forth in that provision to be fulfilled by the State concerned, subject its affirmative vote to the additional condition that other States be admitted to membership in the United Nations together with that State’ (Conditions of Admission of a State to Membership of the United Nations (Article 4 of the UN Charter) (Advisory Opinion) ICJ Rep 1948, p 12). Following receipt of the 1948 Advisory Opinion, the General Assembly recommended that ‘each member of the Security Council and of the General Assembly, in exercising its vote on the admission of new Members, should act in accordance with the [1948] opinion of the International Court of Justice’ (GA Res 197 (III) (1948), section A). Notwithstanding that recommendation, the Security Council continued to fail to recommend the admission of states due, apparently, to the continued insistence of the Soviet Union that applications be determined together. Between 8 December 1948 and 22 November 1949, the USSR exercised its veto in respect of 10 applications for admission (see, eg, UN Doc A/ 58/47 (2004), Annex III).This prompted the General Assembly to seek the second Advisory Opinion. 22

  Competence of the General Assembly for the Admission of a State to the United Nations (Advisory Opinion) ICJ Rep 1950, p 8.

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23

  ibid. The General Assembly did not follow the 1950 Advisory Opinion with a resolution (which can be contrasted with the General Assembly’s conduct following the 1948 Advisory Opinion). See Aljaghoub, The Advisory Function of the International Court of Justice 1946– 2005 (2005), 230. However, in Res 620 (VII) section A (1952), the General Assembly referred to the two Advisory Opinions of the ICJ in establishing ‘a Special Committee composed of representatives of [19 States including four permanent members of the Security Council (the USSR not being represented)]’, the purpose of which was to ‘make a detailed study of the question of admission of States to membership in the United Nations… such study to be conducted in the light of the relevant provisions of the Charter of the United Nations, the discussion in the General Assembly and its Committees, the debates in the Security Council, the advisory opinions of the International Court of Justice, the other antecedents of the question and the principles of international law’. Following receipt of the Special Committee’s report, the General Assembly established the Committee of Good Offices (consisting of the representatives of Egypt, The Netherlands, and Peru), which was ‘empowered to consult with members of the Security Council with the object of exploring the possibilities of reaching an understanding which would facilitate the admission of new Members in accordance with Article 4 of the Charter’ (GA Res 718 (VIII) (1953)). As referred to in n 15, the issues regarding admission were, it seems, resolved by the ‘package deal’, which saw the admission of 16 countries upon the recommendation of the Security Council (GA Res 995 (X) (1955)). 24

  See UN Charter, Art 18(2). See also ch 10, ‘Voting’.

25

  See generally Conforti and Focarelli, n 14, 40–1; Fastenrath, ‘Article 4’, in Simma et al (eds), n 1, MN 8–9. Initially, it was the US and its allies that insisted (in a proposal of 28 August 1946) that decisions as to the application for membership of a number states should be taken in a single decision, with the Soviet Union arguing that each application should be considered separately (Record of the 55th Meeting of the Security Council, 28 August 1946, UN Doc S/PV.55). Later, these states took opposite positions from their initial stance. The Soviet Union in 1947 considered that the decisions as to applications by different states should be made in a single decision (in which the success of one state would be linked to the admission of one or more other states). In September 1947, when the memberships of Italy, Finland, Bulgaria, Hungary, and Romania came up for consideration, the Soviet Union insisted that it would not vote in favour of the admission of the Western states unless the Eastern European states were admitted at the same time (see, eg, Record of the 203rd and 204th Meetings of the Security Council, 24–25 September 1947, UN Doc S/PV.204, pp 2414– 15). On 1 October 1947, the Representative of the Soviet Union stated: ‘We have no desire to take part in the shabby political game that is being played in considering the applications that have been received from these countries. We consider that the question of admitting these countries should be treated as a single question and that the decision to admit these countries to the United Nations should be taken at one and the same time’ (Record of the 206th Meeting of the Security Council, 1 October 1947, UN Doc S/PV.204, p 2477). By this time, the US and its allies had come to the view that each application was to be considered individually (see, eg, Record of the 203rd and 204th Meetings of the Security Council, 24–25 September 1947, UN Doc S/PV.204). See, also, UNSC RP (1946–51), ch VII, p 282, available at http://www.un.org/en/sc/repertoire. 26

  Conditions of Admission of a State to Membership of the United Nations (Article 4 of the UN Charter) (Advisory Opinion) ICJ Rep 1948, p 57. See also n 21. 27

  The majority of the Court held (ibid, pp 62–5):

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The requisite conditions are five in number: to be admitted to membership in the United Nations, an applicant must (1) be a State; (2) be peace-loving; (3) accept the obligations of the Charter; (4) be able to carry out these obligations; and (5) be willing to do so. … The natural meaning of the words used leads to the conclusion that these conditions constitute an exhaustive enumeration and are not merely stated by way of guidance or example…. The conditions stated in paragraph 1 of Article 4 must therefore be regarded not merely as the necessary conditions, but also as the conditions which suffice. Nor can it be argued that the conditions enumerated represent only an indispensable minimum, in the sense that political considerations could be superimposed upon them, and prevent the admission of all applicant which fulfills them. Such an interpretation would be inconsistent with the terms of paragraph 2 of Article 4, which provide for the admission of ‘tout Etat remplissant ces conditions’—‘any such State’…. Moreover, the spirit as well as the terms of the paragraph preclude the idea that considerations extraneous to these principles and obligations can prevent the admission of a State which complies with them. If the authors of the Charter had meant to leave Members free to import into the application of this provision considerations extraneous to the conditions laid down therein, they would undoubtedly have adopted a different wording. … The provisions of Article 4 necessarily imply that every application for admission should be examined and voted on separately and on its own merits; otherwise it would be impossible to determine whether a particular applicant fulfills the necessary conditions. To subject an affirmative vote for the admission of an applicant State to the condition that other States be admitted with that State would prevent Members from exercising their judgment in each case with complete liberty, within the scope of the prescribed conditions. Such a demand is incompatible with the letter and spirit of Article 4 of the Charter. 28

  ibid, p 63.

29

  See, for further details, n 15.

30

  See GA Res 918 (X) (1955); UNSC Res 109, 14 December 1955. See, also, Record of the 704th Meeting of the Security Council, 13 December 1955, UN Doc S/PV.704. 31

  Fastenrath, n 25, MN 9; United Nations, ‘Member States: Growth in the United Nations membership, 1945-present’, available at http://www.un.org/en/sections/member-states/ growth-united-nations-membership-1945-present/index.html. 32

  See, eg, GA Res 267 (III) (1949), in which the General Assembly recommended that the permanent members of the Security Council ‘seek agreement among themselves upon what possible decisions by the Security Council they might forbear to exercise their veto, when seven affirmative votes had already been cast in the Council’; and Gross, ‘Progress Towards the Universality of Membership in the United Nations’ (1950) 50 AJIL 761, at 793. 33

  Gross, n 32, 794: ‘[t]he Secretary-General expressed himself strongly in favor of universality of membership and his plea was endorsed by the heads of the specialized agencies’ (referring to the ‘Memorandum of points for consideration in the development of a twenty-year programme for achieving peace through the United Nations’, submitted by the Secretary-General on 26 July 1950, UN Doc A/1304, at [5], and the Seventh Report of the Administrative Committee on Coordination to the Economic and Social Council, UN Doc E/1682, 11 May 1950, pp 2–3). 34

  GA Res 817 (X) (1954).

35

  See, eg, Gross, n 32, 803–4; and Fastenrath, n 25, MN 9.

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36

  Sievers and Daws, n 12, 417.

37

  Conditions of Admission of a State to Membership of the United Nations (Article 4 of the UN Charter) (Advisory Opinion) ICJ Rep 1948, p 62. 38

  As the ICJ has stated in the Conditions of Admission of a State (Advisory Opinion) ICJ Rep 1948, p 57, ‘[a]ll these conditions are subject to the judgment of the Organization. The judgment of the Organization means the judgment of the two organs…and in the last analysis, that of its Members.’ 39

  See Schwebel, ‘Ministates and a More Effective UN’ (1973) 67 AJIL 108; Gunter, ‘What Happened to the UN Ministate Problem’ (1977) 71 AJIL 110; Duursma, Fragmentation and the International Relations of Microstates: Self-Determination and Statehood (1996); Grant, ‘Universality Achieved: Micro-States, Neutral States, and the Residue of Empires’ in Admission to the United Nations: Charter Article 4 and the Rise of the Universal Organization (ed Grant, 2009), 201–50; Al-Ebraheem, Kuwait and the Gulf: Small States and the International System (2016), 34–6. 40

  See Komarnicki, ‘The Problems of Neutrality under the UN Charter’ (1952) 38 Transactions of the Grotius Society, 77; Grant, n 39, 201–50. 41

  See Conforti and Focarelli, n 14, ch 1; Higgins, n 4, pt 1; Grant (ed), n 39. The matters are discussed further in sections 2.3.1–2.3.3. 42

  One exception was Angola, which applied for membership in April 1976, in respect of which a permanent member vetoed the resolution recommending admission in June 1976, but which was admitted in November 1976. See UNSC RP (1975–80), ch VII, p 111. Although not a case of decolonization, Bangladesh is another case of a new state emerging since the 1960s, where there was a delay in admission to the UN. Bangladesh applied for membership in August 1972 but was only admitted as a member in June 1974 after Pakistan, the parent state, had recognized it (see UNSC RP (1972–74), ch VII, pp 74–5). See n 51 dealing with the role of the consent of the parent state with regard to questions of statehood and membership of the UN. 43

  Art 1(2) of the Covenant of the League of Nations (28 April 1919) provided: ‘Any fully self-governing State, Dominion or Colony not named in the Annex may become a Member of the League if its admission is agreed to by two-thirds of the Assembly, provided that it shall give effective guarantees of its sincere intention to observe its international obligations, and shall accept such regulations as may be prescribed by the League in regard to its military, naval and air forces and armaments.’ 44

  For extensive discussion of how the criteria were applied in this period, see Higgins, n 4, pt 1. 45

  One prominent example in this regard was Israel, which was admitted to membership in March 1949 (SCOR, 4th yr, 414th mtg, 14 (S/1267)). Likewise, the claim that Mauritania was not entitled to UN membership because of the claims by Morocco over the territory was dropped and it was admitted to membership in 1961. See also Higgins, n 4, 19. 46

  One example is Guinea-Bissau. At the plenary meetings between 26 October and 2 November 1973 (which followed the ‘Proclamation of the State of Guinea- Bissau by the People’s National Assembly’ on 24 September 1973), the General Assembly considered the ‘Illegal occupation by Portuguese military forces of certain sectors of the Republic of Guinea-Bissau and acts of aggression committed by them against the people of the Republic’. While ‘[s]everal…Members, including France, Italy and the Netherlands, noted that their belief in the right of peoples to self-determination led them to regard sympathetically the question of recognition of the Republic of Guinea-Bissau…they could not vote in favor of the resolution since, in their view, the provisions of international law relating to the recognition of new States had not been met’. Notwithstanding that

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opposition, on 2 November 1973, the General Assembly adopted Res 3061 (XXVIII), which ‘recognized the inalienable right of all peoples to self-determination and independence in accordance with the principles of the Charter of the United Nations and the 1960 Declaration on Granting of Independence to Colonial Countries and Peoples’ and ‘welcomed the recent accession of independence of the people of Guinea-Bissau, thereby creating the sovereign State of the Republic of Guinea-Bissau’ (1973 UNYB 143–7). Another example is the opposition of the Yemenite Democratic Republic to Oman’s application for admission. The Yemen argued before both the Security Council and the General Assembly that the territory said to belong to Oman ‘was a territory still under British colonial dominion’ (Conforti, The Law and Practice of the United Nations (3rd edn, 2005) 25–6). 47

  These arguments were made with regard to the applications of Austria and also the Republic of Korea for UN membership (UNSC RP (1946–51), ch 7, pp 272–3). 48

  Mongolian membership of the UN was initially rejected on account of an argument that it was not in fact an independent state. Likewise, Mauritania’s application for admission was held up because of the argument that it was simply a puppet state of France (Higgins, n 4, 28–9). ‘[T]he USSR objected to the Republic of Mauritania, whose government had been formed under French influence in a part of the territory claimed by Morocco. Although they raised these objections, the United States and China, on the one hand, and the USSR on the other, abstained when the voting took place to avoid the two admission proposals from being blocked by reciprocal vetos’ (Conforti, n 46, 25 (emphasis in original, references omitted)). Similar claims were made with respect to Kuwait and to Iraq’s claim to territory of that state. The application of Kuwait for admission came before the Security Council during its 984th and 985th meetings, at which time the Soviet Union vetoed a recommendation to the General Assembly that Kuwait be admitted (see, UN Doc S/PV.984, 30 November 1961). The basis for the veto was the contention that ‘the available information about the situation in Kuwait does not enable us to consider Kuwait an independent State’ (see Record of the 184th Meeting of the Security Council, UN Doc S/PV. 984, 30 November 1961, p 1). The Soviet Union was the only member of the Security Council to vote against the recommendation of Kuwait’s admission. The representative of Iraq, having been granted permission to speak in the Security Council at its 984th and 985th meetings, had argued that ‘the application of Kuwait…should be rejected…on at least three counts. First, Kuwait is not and has never been a State in the internationally accepted sense and possesses none of the prerequisites of statehood. Secondly, Kuwait has always been considered, legally as well as historically, as an integral part of Iraq which is already a Members of this Organisation, indeed a founding Member of this Organization. Thirdly, Kuwait at present is for all practical purposes a British colony and therefore is not eligible for membership in the United Nations’ (UN Doc S/PV.984, 30 November 1961 at [30]). While at the 1034th meeting of the Security Council in May 1963, the representative of Iraq reaffirmed its objection to Kuwait’s application and ‘state[d] categorically that it reaffirm[ed] its legitimate rights and [would] never allow anything to affect the historical ties with Kuwait and its people’, the Soviet Union abandoned the position it had taken in November 1961 and voted in favour of the recommendation to admit Kuwait (see, record of the 1034th Meeting of the Security Council, UN Doc S/PV.1034, 7 May 1963). 49

  This principle explains the decisions taken by the UN with regard to the Congo, Rwanda, Burundi, and Guinea Bissau. The first three are entities that were granted independence by Belgium (in 1960, 1962, and 1962, respectively) but where, in each case, the new government was unable to exercise control at the time of independence due either to internal conflict (Congo), or to a breakdown of law and order. Nevertheless, all three were admitted to the UN on independence. For fuller discussion of these cases, see Higgins, n 4, 21–5; Fastenrath, n 1. As Crawford has noted, ‘in situations such as that found in Congo… the principle of self-determination will operate to reinforce the effectiveness of territorial

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units created with the consent of the former sovereign’: Crawford, The Creation of States in International Law (2nd edn, 2006), 128. Guinea Bissau, as pointed out in n 46, was a case where the metropolitan state was still contesting, by force, the independence of the colonial entity, and admission to the UN was achieved prior to the metropolitan state’s agreeing to independence. See also Crawford, who states (ibid, 128): ‘The secession of a self-determination unit, where self-determination is forcibly prevented by the metropolitan State, will be reinforced by the principle of selfdetermination, so that the degree of effectiveness required as a precondition to recognition may be substantially less than in the case of secession within a metropolitan unit.’ Despite the relaxation of the criterion that a state must possess a government with effective control of territory in colonial cases, one of the grounds for the opposition to the statehood of Palestine (and to its admission to UN membership) was that ‘the Palestinian Authority could not be considered to have effective government control over the claimed territory’. See Report of the Committee on the admission of New Members concerning the application of Palestine for admission to membership in the United Nations, UN Doc S/2011/705, 11 November 2011, para 12. Notwithstanding those concerns, the General Assembly, by Res 67/19 (2012), accorded Palestine ‘non-member observer State status’, and also expressed hope that the Security Council would consider Palestine’s application favourably. 50

  See Raič, Statehood and the Law of Self-Determination (2002), 103ff.

51

  For the existence and application of the principle set out here, see the comprehensive review of Crawford, n 49, ch 9, who concludes, at 417, that: ‘Outside the colonial context, the United Nations is extremely reluctant to admit a seceding entity to membership against the wishes of the government of the State from which it has purported to secede. There is no case since 1945 where it has done so.’ It is this consent of the parent state that accords what has been described as ‘legal independence’ to the new state: Higgins, n 4, 27; see also Vidmar, Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice (2013), 137. In the case of Kosovo, the lack of consent to independence from Serbia—the parent state— constituted one of the stumbling blocks to a more general recognition of statehood, and thus to admission as a UN member. While the ICJ held in Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) ICJ Rep 2010, p 403, that the unilateral declaration of independence with respect to Kosovo was not illegal as a matter of international law, it did not consider whether Kosovo had fulfilled the criteria for statehood. Although Kosovo had by January 2017 been recognized as a state by over 100 states (see ‘Countries that have recognized Kosovo as an independent state’, at http://beinkosovo.com/en/countries-that-have-recognized-kosovo-as-anindependent-state), Serbia, the parent state, did not recognize it as such. At the time of writing, Kosovo had not yet applied for UN membership. While at that time, Kosovo had become a member of the International Monetary Fund (IMF) and the World Bank, its application for membership of the United Nations Educational, Scientific and Cultural Organization (UNESCO) in November 2015 failed to achieve the necessary two-thirds majority. See ‘Kosovo fails in UNESCO membership bid’, Guardian (9 November 2015). For a discussion of Kosovo’s statehood, see Vidmar, above, 117–38. See also Efevwerhan, ‘Kosovo’s Chances for UN Membership: A Prognosis’ (2012) 4 Goettingen JIL 93. 52

  Crawford, n 49, 387, who goes on to say that ‘in such a case recognition may be extended even though the independence of the territory is not “disputed without rational hope of success”’. The best examples of this more relaxed view of independence, without the consent of the parent state, in cases of self-determination, are Guinea Bissau (nn 46 and 49) and Palestine, to the extent that the General Assembly was willing to consider the latter

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as a state for the purposes of granting it the status of a non-member observer state (nn 18 and 49; and see UN Doc S/2011/705, 11 November 2011, para 14). 53

  Provisional Rules of Procedure of the Security Council, Rule 58; Rules of Procedure of the General Assembly, Rule 135. The draft rules of procedure prepared by the Preparatory Commission had provided that applications for admission should be accompanied by a declaration of readiness to accept the obligations set out in the Charter. However, the provision was changed to require a declaration by which the applicant accepted Charter obligations: see Sievers and Daws, n 12, 490. 54

  See Fastenrath, n 25, MN 23, who points out: ‘The question whether reservations were admissible was raised but not discussed further at the San Francisco Conference, although there was a general assumption to answer in the negative. As a rule, declarations of acceptance under Art 4 (1) refer explicitly to acceptance “without reservation” and there has been no declaration of acceptance with a formal reservation.’ 55

  A proposal by France in Committee 1/2 (charged with drafting what became Art 4), to the effect that neutralization was incompatible with the obligations of UN membership, was not accepted. See III United Nations Conference on International Organization (UNCIO), 383. 56

  Goodrich, Hambro, and Simons, Charter of the United Nations (3rd edn, 1969), 90.

57

  Art 9 of Japan’s Constitution (‘The Constitution of Japan’, effected 3 May 1947) provides:

Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized. In 2014, Japan’s Prime Minister Shinzo Abe ‘announced that his cabinet had approved a reinterpretation of [Article 9 of the] constitution…[T]he change meant that the Japanese Self-Defense Forces (JSDF) would, for the first time since their founding in 1954, be permitted to participate in acts of collective self-defence (generally understood to be the right to use force to repel an armed attack against a foreign country that has a close relationship with one’s own country)’: Choong, ‘Defence of Japan’s Constitutional Debate’ (2015) 57 Survival: Global Politics and Strategy 2, at 173. While legislation has since been passed progressing the amendments, no change to Art 9 can be made without a referendum on the issue (see, eg, McCurry, ‘Japan could change pacifist constitution after Shinzo Abe victory’, Guardian (11 July 2016), available at https://www.theguardian.com/ world/2016/jul/11/japan-could-change-pacifist-constitution-after-shinzo-abe-victory; ‘LDP loses enthusiasm for Article 9 revision, but Abe still determined’, The Japan Times (6 October 2015), available at http://www.japantimes.co.jp/news/2015/10/06/national/politicsdiplomacy/ldp-loses-enthusiasm-article-9-revision-abe-still-determined/#.VkqK5kswJg0; Yoshida, ‘Thousands rally in Nippon Budokan Hall for constitutional change’, The Japan Times (10 November 2015), available at http://www.japantimes.co.jp/news/2015/11/10/ national/politics-diplomacy/thousands-rally-nippon-budokan-hall-constitutional-change/ #.VkqLYEswJg0). 58

  See UN GA Res 57/1 (2002) and UNSC Res 1426 (2002). Switzerland’s application for membership stated that its status as a neutral state was ‘compatible with the obligations laid down in the Charter’. See UN Doc S/2002/801.

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59

  Conforti and Focarelli, n 14; Zecha, ‘Neutrality and International Solidarity—a Comparison of the Policy of Certain Neutral European Countries with Respect to the UN’ (2011) 10 Academic & Applied Research in Military Science 305, at 309–18. 60

  After the Security Council adopted Res 232 (1966), by which it decided that all member states were to impose extensive sanctions on Rhodesia, Austria wrote to the UN SecretaryGeneral to indicate that it did not want to ‘prejudge the question whether Austria, as a permanently neutral State Member of the UN is automatically bound by decisions of the Security Council regarding mandatory sanction—a question which in the opinion of the Federal Government of Austria can only be decided in each single case on the basis of the specific situation and with due regard to the obligations which result on the one hand from the membership of Austria in the United Nations and, on the other hand, from its permanent neutrality, of which all States Members of the United Nations have previously been notified’ (UN SCOR 22nd year, Supp 1–2.3. 1967). A similar sentiment was expressed by Austria, in 1968, after the Council imposed further economic measures against Rhodesia (UN SCOR, 23rd year, 7–89, 1968, p 176). However, Austria’s view was abandoned when the UN Security Council took measures in 1990 in response to the Iraqi invasion of Kuwait. Statements of the Austrian Government considered, at that time, that the right of neutrality was not relevant when the Security Council adopted measures under Chapter VII of the Charter. See Schindler, ‘Kollektive Sicherheit der Vereinten Nationen und dauernde Neutralität der Schweiz’ (1992) 2 Schweizerische Zeitschrift für internationales und europaïsches Recht 454. 61

  In Committee 1/1, which was concerned with Art 2(5), it was accepted that a member state could not avail itself of its neutral status in order to free itself from its Charter obligations (see VI UNCIO 400 and 722). 62

  See Art 32 of the International Law Commission’s Articles on the Responsibility of States for Wrongful Acts. 63

  See UN Charter, Arts 43, 44, and 48.

64

  Blokkers, ‘Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by “Coalitions of the Able and Willing” (2000) 11 EJIL 541. 65

  See Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (1999), 145; White, Keeping the Peace: The United Nations and the Maintenance of International Peace and Security (1997), 116–17. 66

  See Schwebel, n 39; Gunter, n 39; Duursma, n 39; Grant, n 39; Al-Ebraheem, n 39.

67

  See, eg, Sievers and Daws, n 12, 491.

68

  See the Reports of the Secretary-General, UN Doc A/6301/Add.1/14 (1966) and A/6701/ Add1 (1967), pp 20ff. In his 1967 report, Secretary-General Thant noted that even though the smallest colony had the right to determine its own future, UN membership imposed onerous obligations. In his view, a distinction should be drawn between statehood and the right to independence, on the one hand, and full UN membership, on the other. He suggested that the competent organs of the UN should study the criteria for UN membership, as well as other possible forms of association for micro states that might not qualify for full membership. See also Sievers and Daws, n 12, 491. 69

  Conforti, n 46, 27.

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70

  UN Doc S/9836, 15 June 1970. The Committee of Experts established by the Security Council at its 1506th meeting in connection with the question of the ‘Creation of a category of associate membership’ continues to exist but has not met for many years. See UNSC RP Supp no 17 (2010–11), pt IX. 71

  See UN Doc S/AC.16/SR.10 (1971) for an opinion by the UN Legal Counsel that admission of micro states to associate membership without voting rights and without financial obligations would require a formal amendment to the UN Charter, since associate membership would be inconsistent with the principle of sovereign equality of members under Art 2(1). See also Gunter, n 39. 72

  Monaco, Liechtenstein, San Marino, Palau, Nauru, and Tuvala all have populations of under 50,000 and were admitted to UN membership. See Basu, The United Nations: Structure & Functions of An International Organisation (2004), 136. 73

  After the break-up, in 1991, of the Federal Socialist Republic of Yugoslavia, one of its constituent republics applied to the UN for membership, in 1992, under the name of the Republic of Macedonia. Greece challenged the choice of that name on the grounds that this was the name of ancient Greek Kingdom and of a large part of the territory of modern Greece, and that use of that name implied territorial claims by the Former Yugoslav Republic of Macedonia (FYROM) over parts of Greece. Greece opposed the admission of FYROM to the UN on the grounds that ‘past experiences and practices, as well as constituent acts and policies of the new republic raise serous concerns about its willingness to fulfil the obligations arising from the UN Charter’ (UN Doc A/47/877; S/25158, 25 January 1993). In response, the President of Macedonia wrote to the Security Council to say, ‘I would like to assure you that the Republic of Macedonia is able and willing to carry obligations under the Charter’ (UN Doc S/25531, 5 April 1993). By UNSC Res 817 (1993), the Council recommended that the state be admitted to membership under the provisional name of ‘the former Yugoslav Republic of Macedonia’, a recommendation accepted by the General Assembly in GA Res 47/225 (1993). Similarly, during consideration of the application by Palestine for membership, ‘[q]uestions were raised as to whether Palestine was indeed a peace-loving State, since Hamas refused to renounce terrorism and violence, and had the stated aim of destroying Israel’. Also, with regard to the requirement that an applicant accept the obligations contained in the Charter, and be able and willing to carry them out, ‘The view was also expressed that the Charter required more than a verbal commitment by an applicant to carry out its Charter obligations; an applicant had to show a commitment to the peaceful settlement of disputes and to refrain from the threat or the use of force in the conduct of its international relations. In this connection, it was stressed that Hamas had not accepted these obligations.’ Report of the Committee on the Admission of New Members concerning the application of Palestine for admission to membership in the United Nations, UN Doc S/ 2011/705, 11 November 2011, paras 16–18. 74

  Cases of divided states include: the two German states (which obtained membership in September 1973 (GA Res 3050 (XXVIII) (1973)); and the two Koreas (which obtained membership in September 1991 (GA Res 46/1 (1991)). The two Vietnams (the Republic of South Viet Nam and the Democratic Republic of Viet Nam) reunited before admission as the Socialist Republic of Viet Nam in September 1977 (GA Res 32/2 (1977)). 75

  See Fastenrath, n 25, MN 33–4.

76

  GA Res 918 (X) (1955) expressed a preference for the reunification of these divided states, hence the exclusion of the two Koreas and two Vietnams from the package deal

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contained in that resolution. The two Germanys had not yet applied for UN membership at the time. 77

  See UNSC RP (1989–92), ch VII, pp 231–3.

78

  See UNSC RP (1975–80), ch VII, pp 110–11.

79

  GA Res 32/2 (1973).

80

  The cases of merger are: Tanganyika and Zanzibar into the United Republic of Tanganyika and Zanzibar (subsequently Tanzania); Egypt and Syria into the United Arab Republic (Syria resumed its status as a single member in February 1958); Yemen and the Democratic Yemen into Yemen; the Federal Republic of Germany and the German Democratic Republic into Germany (Fastenrath, n 25, MN 35). 81

  See Conforti and Focarelli, n 14, 56.

82

  Conforti and Focarelli, ibid, suggest that ‘The hypothesis of incorporation is to be preferred to unification whenever there is continuity between the government organization of one of the former States and the government organization of the State resulting from the unification.’ 83

  See 1958 UNYB 106; (1962) II YBILC 104.

84

  UN Doc A./5701 (1964).

85

  GA Res 45/193 (1990).

86

  Art 1 of the Agreement on the Establishment of the Republic of Yemen, 1990, (1991) 30 ILM 820, appears inconsistent with the view that one of the two Yemens was incorporated into the other, or with the view that the legal personality of the new state was the same as that of either of the prior states. It provided: ‘On the 26th of May 1990…there shall be established between the State of the Yemen Arab Republic and the State of the People’s Democratic Republic of Yemen (both parts of the Yemani Homeland) a full and complete union, based on a merger, in which the international personality of each of them shall be integrated in a single international person called the “Republic of Yemen”.’ See Crawford, n 49, 705–6, who states that ‘there seem clearly to have been three Yemens’. 87

  For a consideration of the legal position with regard to German unification in 1990, see Crawford, n 49, 673–5, 685–6. 88

  See Conforti and Focarelli, n 14, 56; Fastenrath, n 25, MN 39.

89

  For example, the General Assembly, in January 1991, elected Byelorussia to the Information Committee (a subsidiary organ of the General Assembly) in order to fill the vacancy that had arisen as a result of the disappearance of the German Democratic Republic (UN Doc A/45/PV.65 (1991)). 90

  For a discussion of this provision, see ch 14, ‘The Financing of the United Nations’, section 6.6, ‘Currency’. 91

  Apart from the fact that Art 19 only deals with suspension of voting rights, it applies only to the right to vote in the General Assembly. A state that is deprived of the right to vote in the Assembly under Art 19 is not thereby debarred from voting in other organs of the UN. In addition, such a state is not even debarred from voting in subsidiary organs of the Assembly. See Tomuschat, ‘Article 19’ in Simma et al (eds), n 1, paras 29–33. 92

  It may be questioned whether suspension of rights under Art 5 must entail suspension of all the rights and privileges of membership, or whether, instead, the Security Council and the General Assembly may choose to suspend only some of those rights and privileges. It was indicated during the drafting of the provision at the San Francisco Conference that it referred to the suspension ‘of all and not of some’ rights and privileges, otherwise the expression ‘any’ of the rights and privileges would have been used. See XVII UNCIO, 346

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and also XVIII UNCIO, 130. However, the UN Legal Counsel has stated, in an opinion considering the suspension of South Africa from the UN Conference on Trade and Development, that ‘[i]t may, however, be envisaged that the Security Council could recommend that only certain, and not all, of these rights and privileges be suspended, under the principle that the greater includes the lesser’: (1968) UN Juridical YB 195, at 198, para 16. Despite the drafting history, a natural reading of the text (‘may be suspended from the exercise of the rights and privileges’) does not preclude an interpretation according to which only some of the rights may be suspended. Moreover, in so far as suspension of membership rights under Art 5 is a sanction intended to induce the suspended state into complying with obligations imposed on it, it would be appropriate to give the Security Council (and the General Assembly) the option to induce only the level of sanction necessary to induce compliance. See Tams, ‘Article 5’ in Simma et al (eds), n 1, para 21. However, where the Council and the Assembly fail to specify that any specific rights are suspended, the assumption ought to be that the suspension relates to all rights and privileges of membership. See Schütz, ‘Article 5’ in The Charter of the United Nations: A Commentary (2nd edn, Simma (ed), 2002), para 26. 93

  Since the Statute of the ICJ ‘forms an integral part of the Charter’, and members of the UN are ipso facto parties to the Statute of the ICJ (under Arts 92 and 93 of the UN Charter), questions might arise as to whether the suspension of the rights and privileges of membership under Art 5 would include suspension of the rights of members under the ICJ Statute. Under Art 35 of the ICJ Statute, members of the UN have a right of access to the Court. It could be argued that since, for members, this right of access is dependent on their membership, it ought to be considered a right of membership that may be suspended under Art 5. See Tams, n 92, para 22; but contra Kelsen, n 20, 712–13. However, since nonmembers of the UN may become parties to the ICJ Statute, and since the wording of Art 5 does not appear to extend to the suspension of the right of non-members that are parties to the Statute (Kelsen, ibid), an interpretation that allows for suspension of the rights of members under the ICJ Statute would put members in a worse position than that of nonmembers. 94

  Art 2(5) imposes an obligation on members to ‘refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action’. Art 50 of the UN Charter refers to ‘preventive or enforcement measures’ and provides for a right of any state, confronted with special economic problems as a result of carrying out such measures taken by the Security Council, to consult with the Council. 95

  Under Art 94, the Security Council may ‘decide upon measures to be taken’ to give effect to judgments of the ICJ. Tams, n 92, para 13; Kelsen, n 20, 714. 96

  Under Art 39 of the UN Charter, the Council may make recommendations to maintain the peace, which suggests a measure of a preventive nature. Also, under Art 37, where the Council deems ‘that the continuance of [a]…dispute is in fact likely to endanger the maintenance of international peace and security, it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate’. 97

  See Tams, n 92, para 15.

98

  See Art 37 (n 96), which speaks of the Council’s taking ‘action’ under Art 36, notwithstanding the fact that all that the Council may do under Art 36 is to make recommendations. 99

  The approach taken here is similar to that taken by the ICJ with regard to the interpretation of ‘action’ in Art 11(2) of the Charter. The Court held with regard to that provision that ‘the kind of action referred to in Article 11, paragraph 2, is coercive or

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enforcement action’: Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) ICJ Rep 1962, p 151, at 164. 100

  See Kelsen, n 20, 714; Tams, n 92, para 15, reversing the position taken by Schütz in the 2nd edn of Simma (ed), n 92, at para 15. 101

  See ch 14, ‘The Financing of the United Nations’, section 6.6, ‘Currency’.

102

  Given that the wording of Art 5 of the UN Charter, like that of Art 4 regarding admission to membership, requires a recommendation by the Security Council and a decision by the General Assembly, the involvement of both organs is required, and the Assembly cannot act without a prior recommendation from the Council. See Competence of the General Assembly for the Admission of a State to the United Nations (Advisory Opinion) ICJ Rep 1950, p 8; and section 2.1, ‘The procedure for admission’. 103

  Proposals made during the drafting of the UN Charter to the effect that a decision of both the Assembly and the Council should be required for restoration of rights, were rejected on the grounds that (i) since suspension is predicated on the taking of preventive or enforcement action by the Council, it is the Council that is the best judge of whether the objectives sought have been met; and (ii) the Assembly is not in permanent session, unlike the Security Council, and there might be cases where it would be expedient to revoke the suspension with immediate effect. See III UNCIO, 197, 324, 350, 356–7. 104

  The General Assembly, upon creation of the Human Rights Council, established a procedure for suspending members of that body: ‘the General Assembly, by a two-thirds majority of the members present and voting, may suspend the rights of membership in the Council of a member of the Council that commits gross and systematic violations of human rights’ (see GA Res 60/251 (2006), para 8). By GA Res 65/265 (2011), adopted on 1 March 2011, the General Assembly suspended Libya’s rights of membership in the Council. 105

  See section 6, ‘Representation of members/credentials’.

106

  See ECOSOC Res 974 D III and IV (XXXVI) (1963).

107

  See UNCTAD Res 36 (II) (1968), TD/97 Annex 1, p 56.

108

  See GA Res 47/1 (1992) and UNSC Res 777 (1992).

109

  See GA Res 45/229 (1993) and UNSC Res 821 (1993).

110

  See section 5, ‘State succession and membership: problems of extinction and continuity’. 111

  In a legal opinion of 1968, the UN Legal Counsel accepted that acts intended to sanction a member by depriving it of its membership rights would be tantamount to a suspension: ‘Creation of a subsidiary organ of all the membership of the United Nations, less one or even a few such Members excluded as a sanction, would be tantamount to suspension’ ([1968] UN Juridical YB 195, at 197, para 10). 112

  According to the UN Legal Counsel, ‘Had the drafters of the Charter intended to curtail membership rights in a manner other than those provided for in Articles 5, 6 and 19 of the Charter, they would have so specified in the Charter. It may therefore be concluded that procedures to suspend a Member State from any of the benefits, rights and privileges of membership which do not follow those laid down in Article 5 are not consonant with the legal order established by the Charter’ [1968] UN Juridical YB 195, at 198, para 14). 113

  Art 16(4) of the Covenant of the League provided that any member of the League that had violated ‘any covenant of the League’ could be expelled from membership by a unanimous decision of the Council. This provision was resorted to only once, with regard to

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the Soviet Union after its invasion of Finland in 1939 ((1939) 20 League of Nations Official Journal 506). 114

  Early drafts of the UN Charter did not include a provision for expulsion, and though it was included in the Dumbarton Oaks proposals presented to the San Francisco Conference, the clause failed to obtain the two-thirds majority required for adoption in the relevant Committee of the Conference (Committee I/2), with many arguing that a more stringent suspension clause would be to provide a sufficient sanction. However, the matter was referred back to the Committee by the Executive Committee and eventually adopted as a result of pressure from the US and the Soviet Union. See VII UNCIO, 113–14, 193–4, 277–8, and 329–32, and the discussion in Tams, ‘Article 6’ in Simma et al (eds), n 1, paras 7–8. 115

  See Tams, n 114, paras 13–15. However, it is worth noting that one of the principles of the UN Charter, contained in Art 2(2), is the obligation of all members to ‘fulfil in good faith the obligations assumed by them in accordance with the present Charter’. Accordingly, it may be argued that persistent violations of any of the obligations under the Charter is a violation of the principles of the Charter. See Kelsen, n 20, 710. However, Art 2(2) is not merely an obligation to fulfil all the obligations under the Charter. If it were so, it would be redundant. Rather, it is an obligation to act in good faith to fulfil such obligations. Therefore, what is a breach of Art 2(2) is not the breach of the underlying obligation as such but rather a failure to act in good faith. See generally Müller and Kolb, ‘Article 2(2)’ in Simma et al (eds), n 1, 166. 116

  Art 70(1)(b), Vienna Convention on the Law of Treaties 1969 (VCLT).

117

  See Art II(5), UNESCO Constitution 1945; Art 93bis(2), Convention on International Civil Aviation 1944 (ICAO). In the latter case, membership in the ICAO is retained if the UN General Assembly attaches to its act of expulsion a recommendation to that effect. Under, Art 10 of the Convention on the International Maritime Organization 1948 (IMO), ‘No State or Territory may become or remain a Member of the Organization contrary to a resolution of the General Assembly of the United Nations.’ Although it has been suggested that expulsion from the UN would lead to automatic expulsion from the IMO (Tams, n 114, para 20), the better interpretation of this provision is that the UN General Assembly would need to indicate in the resolution (either explicitly or implicitly) that it applies with regard to IMO membership. See Schermers and Blokker, International Institutional Law: Unity within Diversity (5th rev edn, 2011), 933, para 1496. 118

  See section 4, ‘Readmission to membership’.

119

  See Competence of the General Assembly for the Admission of a State to the United Nations (Advisory Opinion) ICJ Rep 1950, p 8; and see section 2.1, The procedure for admission’. 120

  Following a use of force by Israel within Syrian territory, Syria, in December 1955, submitted a draft resolution to the Security Council, which, inter alia, recommended expulsion of Israel from membership in the UN under Art 6 (UN Doc S/3519, 22 December 1955). This resolution was not voted upon owing to the adoption of a different resolution (UNSC Res 111 of January 1956) condemning the Israeli action. See Foreign Relations of the United States, 1955–1957, Arab-Israeli Dispute, 1955, vol XIV, para 453. 121

  GA Res 1761 (XVII) (1962), para 8.

122

  Other attempts were also made to persuade the Assembly to draw the attention of the Council to Art 6 with respect to South Africa. One such draft resolution, UN Doc S/3519 (1955), failed to obtain the required majority. 123

  UNSC Res 269 (1969).

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124

  1974 UNYB 28, 109–15; UN Doc S/11543, 24 October 1974, which failed to be adopted as a result of the negative vote of three permanent members (France, UK, and US). 125

  See section 6, ‘Representation of members/credentials’.

126

  See Amerasinghe, Principles of the Institutional Law of International Organizations (2nd edn, 2005), 117. 127

  Art 1(3) of the Covenant provided that ‘Any member of the League may, after two years’ notice of its intention to do so, withdraw from the League, provided that all its international obligations and all its obligations under this Covenant shall have been fulfilled at the time of its withdrawal.’ Art 26(2) also provided that ‘No such amendment shall bind any Member of the League which signifies its dissent therefore, but in that case it shall cease to be a member of the League.’ About 20 states withdrew from the League, including those that went on to be the major Axis powers during the Second World War: Germany (1933), Japan (1933), and Italy (1937). It is highly likely that the experience of the League with the high rate of withdrawals was a factor in the minds of the drafters of the UN Charter, who chose not to include a provision on withdrawal in the Charter. 128

  See VII UNCIO, 261–6 with regard to the discussion in Committee 2 of Commission 1, where 24 states voted against the inclusion of a withdrawal clause and 19 voted in favour. 129

  For the text, see VII UNCIO, 267 and I UNCIO, 616, 631:

The Committee adopts the view that the Charter should not make express provision either to permit or to prohibit withdrawal from the Organization. The Committee deems that the highest duty of the nations which will become Members is to continue their cooperation within the Organization for the preservation of international peace and security. If, however, a Member because of exceptional circumstances feels constrained to withdraw, and leave the burden of maintaining international peace and security on the other Members, it is not the purpose of the Organization to compel that Member to continue its cooperation in the Organization. It is obvious, particularly, that withdrawals or some other forms of dissolution of the Organization would become inevitable if, deceiving the hopes of humanity, the Organization was revealed to be unable to maintain peace or could do so only at the expense of law and justice. Nor would a Member be bound to remain in the Organization if its rights and obligations as such were changed by Charter amendment in which it has not concurred and which it finds itself unable to accept, or if an amendment duly accepted by the necessary majority in the Assembly or in a general conference fails to secure the ratification necessary to bring such amendment into effect. 130

  See the letter dated 20 January 1965 from Indonesia, stating that ‘Indonesia has decided at this stage and under present circumstances to withdraw from the United Nations’ (UN Docs S/6157 and A/5857). For discussion of this incident, see Livingstone, ‘Withdrawal from the United Nations—Indonesia’ (1965) 14 ICLQ 637; Unmi, ‘Indonesia’s Withdrawal from the United Nations’ (1965) 5 Indian JIL 128; Schwelb, ‘Withdrawal from the United Nations: The Indonesian Intermezzo’ (1967) 61 AJIL 661. 131

  See the UN Office of Legal Affairs, ‘Resumed Participation of Indonesia in the Activities of the United Nations, Aide-mémoire to the Secretary-General’ (1966) UN Juridical YB 222, at 223, para 7. 132

  GA Res 2118 (XX) (1965), whereby the Assembly fixed the scale of assessments of member states for the financial years 1965, 1966, and 1967.

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133

  Telegram of 19 September 1966 from the Ambassador of Indonesia to the United States to the Secretary-General of the United Nations: ‘[M]y Government has decided to resume full cooperation with the United Nations and to resume participation in its activities starting with the twenty-first session of the General Assembly. A delegation headed by the Foreign Minister will arrive to attend the Assembly’ (UN Docs S/7498 and A/6419). 134

  See section 4, ‘Readmission to membership’.

135

  The President of the General Assembly stated that: ‘It would…appear that the Government of Indonesia considers that its recent absence from the Organization was based not upon a withdrawal from the United Nations but upon a cessation of cooperation. The action so far taken by the United Nations on this matter would not appear to preclude this view. If this is also the general view of the membership, the Secretary-General would give instructions for the necessary administrative actions to be taken for Indonesia to participate again in the proceedings of the Organization.’ He went on to say: ‘Unless I hear any objection, I would assume that it is the will of the membership that Indonesia should resume full participation in the activities of the United Nations and that Secretary-General may proceed in the manner that I have outlined.’ See UN General Assembly Official Records (GAOR) 21st session, 1420th plenary meeting, paras 7 and 8. The views expressed by the President were taken almost verbatim from a document prepared by the UN Office of Legal Affairs, n 131, 223, para 8. 136

  Note however, that in a letter to the Indonesia Foreign Minister, UN Docs S/6202 & A/ 5899 (1965), the Secretary-General expressed his ‘earnest hope that in due time… [Indonesia] will resume full cooperation with the United Nations’. The possibility that Indonesia’s withdrawal would not be regarded as such if it chose to return to the UN was mooted by Oscar Schachter, then Director of the UN General Legal Division, in the Annual Review of United Nations Affairs 1964–1965 (ed Swift, 1966), 119, where he stated that there were two possibilities if Indonesia chose to return to the UN: ‘It could then be argued that the UN had, through practice, even if not explicitly, accepted Indonesia’s withdrawal and that therefore the UN would have to treat a request for re-entry as an application for membership, requiring Security Council as well as General Assembly approval. But one cannot exclude the possibility of a contrary position—namely, that although Indonesia had ceased to participate and that this fact had been accepted through various practical measures, there had been no express acceptance of the legality of the withdrawal and, in consequence, Indonesia should not be treated like a new applicant.’ 137

  The position adopted by the General Assembly in 1966 could be said to indicate ‘that although Indonesia had ceased to participate and that this fact had been accepted through various practical measures, there had been no express acceptance of the legality of the withdrawal’ (Schachter, n 136, 119). 138

  See Blum, ‘Indonesia’s Return to the United Nations’ in Eroding the United Nations Charter (ed Blum, 1993), 27. 139

  The UK stated that ‘Without prejudice to their views as to the circumstances which might legally justify a Member State in withdrawing from the United Nations, Her Majesty’s Government wish to place formally on record their conviction that the reason for withdrawal advanced in the letter of 20 January from the First Deputy Prime Minister and Minister for Foreign Affairs of Indonesia—namely the election of a non-permanent member of the Security Council which the Government of Indonesia unilaterally considers as not fulfilling the requirements of Article 23 of the Charter of the United Nations—is not a circumstance so exceptional in nature as to justify the Government of Indonesia in withdrawing from the Organization.’ Letter to the Secretary-General, 8 March 1965, UN

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Doc S/6229. See also the Italian note verbale of 13 May 1965, UN Doc S/6356, expressing uncertainty as to whether and when withdrawal from the UN might be permissible. 140

  See Conforti and Focarelli, n 14, 51; and Kelsen, n 20, 128.

141

  Art 56(1) VCLT, which may be assumed to represent customary international law on this point. Although this provision was drafted around two decades after the UN Charter, it had been regarded as lex lata in 1945: Schwelb, n 130, 665. 142

  In accord are Livingstone, n 130, 641; Schwelb, n 130, 665; Feinberg, ‘Unilateral Withdrawal from an International Organization’ (1963) 39 BYIL 189, 215; Schermers and Blokker, n 117, 107, para 134; Conforti and Focarelli, n 14, 51. 143

  See the declaration, VII UNCIO, 267, referred to in n 129.

144

  ibid.

145

  See Livingstone, n 130, 641.

146

  The example given in the declaration, of the organization’s finding itself unable to maintain the peace or only being able to do so at the ‘expense of law and justice’, is such a circumstance as is unforeseen by the UN Charter. See VII UNCIO, 267, referred to in n 129. Questions have arisen as to the relationship between the general expression—‘exceptional circumstances’—as used in the declaration, and the list in that declaration of particular circumstances that would justify a withdrawal from the UN. Is the list of particular circumstances to be regarded as exhaustive of the exceptional circumstances that may justify withdrawal, or is it merely an illustrative list of some exceptional circumstances? See Goodrich, Hambro, and Simons, n 56, 197–202; Bentwich and Martin, A Commentary on the Charter of the United Nations (1950), 26. However, given that the possibility is clearly foreseen that amendments may be adopted against the will of some member states, and that some amendments adopted may not receive sufficient ratifications to enter into force, it may be argued that the circumstances regarding amendments that are mentioned in the declaration are additional to, rather than illustrative (or exhaustive) of, the exceptional circumstances referred to in the declaration. The structure of the declaration and the fact that position with regard to amendments is in a separate paragraph from the reference to ‘exceptional circumstances’ strengthens this argument. 147

  See Conforti and Focarelli, n 14, 51. However, Livingstone, n 130, 641, argues that the drafting history of the Charters suggests a wider possibility for withdrawal than would be permitted under the fundamental change of circumstances (clausula rebis sic stantibus) doctrine. In accord is Kelsen, n 20, 129 who then seems to take the view that the declaration adopted in San Francisco does not grant a right to withdraw at all. See Schermers and Blokker, n 117, 109, para 135, for a narrow interpretation of the fundamental change of circumstances. 148

  Art 62(1) VCLT.

149

  Against this view are Kelsen, n 20, 128; Livingstone, n 130, 641; Schwelb, n 130, 671; Feinberg, n 142, 218; Schermers and Blokker, n 117, 107, para 134; Conforti and Focarelli, n 14, 51. 150

  See section 2.5, ‘Merger of states’.

151

  See section 3.2, ‘Expulsion from membership’.

152

  See section 3.3, ‘Withdrawal from membership’.

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153

  See Kelsen, n 20, 78; Nizard, ‘Le retrait de l’Indonésie des Nations Unies’ (1965) 11 Annuaire Français de Droit International 498, 522; Blum, Eroding the United Nations Charter (1993), 30. 154

  See Conforti and Focarelli, n 14, 46–7.

155

  See Blum, n 138.

156

  See the relevant statements of the Assembly Presidents with respect to Syria, UN GAOR, 16th session, 1035th plenary meeting; and with respect to Indonesia; UN GAOR 21st session, 1420th plenary meeting (Indonesia). 157

  See Art 31(3)(b) VCLT.

158

  A related, but different, view suggests that it is the acquiescence of UN members in conduct of UN organs that does not respect provisions of the Charter that remedies the illegality. See Conforti and Focarelli, n 14, 47 and at para 99. However, acquiescence would only apply on a case-by-case basis, and would not prevent a member from objecting to the same procedure being followed in subsequent cases. On the other hand, an interpretation on the basis of subsequent practice that establishes the agreement of the parties to a particular interpretation of the UN Charter is binding on all, even for the future, unless there is a change in that practice also establishing a different agreement of the parties. 159

  For a discussion of this case, see section 3.3, ‘Withdrawal from membership’. See the letter dated 20 January 1965 from Indonesia, n 130, stating that ‘Indonesia has decided at this stage and under present circumstances to withdraw from the United Nations.’ 160

  See GA Res 2118 (XX) (1965), in which the Assembly fixed the scale of assessments of member states for the financial years 1965, 1966, and 1967. 161

  Telegram of 19 September 1966 from the Ambassador of Indonesia to the United States to the Secretary-General of the United Nations, n 133. 162

  See the views of the President of the General Assembly in n 135.

163

  The argument that Indonesia had not purported to withdraw is not convincing given the statements and actions of Indonesia at the time of withdrawal and the response of the UN General Assembly. Note, however, that in a letter to the Indonesia Foreign Minister (UN Docs S/6202 & A/5899, 26 February 1965), the Secretary-General expressed his ‘earnest hope that in due time…[Indonesia] will resume full cooperation with the United Nations’. The possibility that Indonesia’s withdrawal would not be regarded as such if it chose to return to the UN was mooted by Oscar Schachter, then Director of the UN General Legal Division. See Schachter, n 136, 119. 164

  In the session at which Syria resumed participation in the General Assembly, the President of the Assembly stated that he had received a cable from Syria requesting that the UN ‘should take note of the resumed membership in the Organization of the Syrian Arab Republic’ and pointed out that Syria ‘was an original Member of the United Nations under Article 3 of the Charter and continued its membership in the form of joint association with Egypt under the name of the United Arab Republic’. He then went on to state that having consulted with a large number of delegations, ‘the general view appears to be that in the particular circumstances of this case Syria, as an original Member of the United Nations, may be authorized to be represented in the General Assembly, as it has expressly requested. Judging from my very extensive consultations there appears to be no objection to that course from any delegation.’ See the relevant statements of the Assembly Presidents with respect to Syria, UN GAOR, 16th session, 1035th plenary meeting.

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165

  See also Zemanek, stating that ‘[p]resumed continuance of the Syrian State as a person of international law during the Union is legally untenable’: Zemanek, ‘State Succession after Decolonization’ (1965-III) 116 RCADI 187, at 249. Contra, Crawford, n 49, 489, who states without explanation that the United Arab Republic ‘appears [in retrospect] to have been a loose association the existence of which was not inconsistent with the continuing international personality of its component parts’. 166

  Art 4(1) refers to ‘other peace-loving states’ (emphasis added), drawing a contrast with original members provided for in Art 3. The procedure in Art 4(2) is for the ‘admission of any such state’, referring back to Art 4(1). According to Kelsen, n 20, 79, the lack of provision for readmission of original members is ‘the unintentional effect of a technical insufficiency in the text of the Charter’. 167

  For the view that Syria in 1961 was the same state as that of 1958, see Young, ‘Syria: Old or New?’ (1962) 56 AJIL 482; Ziemele, ‘Is the Distinction between State Continuity and State Succession Reality or Fiction?’ (2001) Baltic Yearbook of International Law 191, at 220; Crawford, n 49, 690. 168

  See Dumberry, State Succession to International Responsibility (2007), 108; Caflisch, ‘Les Nations Unies et le respect du droit international, le retour de la Syrie à l’O.N.U., une procédure critiquable?’, Tribune de Genève (21 October 1961), and more generally Marek, Identity and Continuity of States in Public International Law (1968). 169

  In 1959, the UN had 82 members. That number had risen to 126 by 1969, and to 152 by 1979. See ‘Growth in United Nations Membership, 1945–present’, at http://www.un.org/en/ sections/member-states/growth-united-nations-membership-1945-present/index.html. 170

  See Crawford, n 49, ch 17 and at 676–8.

171

  It should be noted that Art 4 of the Vienna Convention on Succession of States in Respect of Treaties 1978 expressly states that application of the rules in the Convention is without prejudice to the rules concerning acquisition of membership in international organizations and without prejudice to any other relevant rules of the organization. This means that the rules concerning acquisition of membership will prevail over any other rules in the Convention. 172

  See section 2.3, ‘Application of the criteria for admission’.

173

  Decolonization is used here to refer to the independence of entities falling within Chapters XI (‘Declaration regarding Non-Self-Governing Territories’) and XII (‘International Trusteeship System’) of the UN Charter. 174

  See the legal opinions of the UN Legal Counsel, UN Press Release PM/473, 12 August 1947, and of the Sixth Committee of the General Assembly, UN Doc A/C.1/212 (1947), pp 582–3, annex 14g, referred to in n 176. See also Crawford and Boyle, ‘Annex A, Opinion: Referendum on the Independence of Scotland—International Law Aspects’, December 2012, para 129, available at https://www.gov.uk/government/uploads/system/uploads/ attachment_data/file/79408/Annex_A.pdf. 175

  In all these cases, the new state was only admitted as a new member of the UN after the parent state had recognized that new state. In the case of Bangladesh, though Pakistan’s forces in the territory had been defeated by December 1971, recognition by Pakistan did not occur until February 1974. In the other cases, recognition by the parent state was achieved within weeks or months after the declaration of independence (the Baltic republics), or independence was achieved by mutual consent (Singapore, Eritrea, Montenegro). In the case of South Sudan, the parent state (Sudan) was not only the first to recognize the new state, but also recognized it one day before (8 July 2011) formal independence (9 July 2011) (see Heavens and Dziadosz, ‘Sudan recognises independence of oil-rich south’, Reuters, 8 July 2011, available at http://www.reuters.com/article/

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idINIndia-58161820110708). While this principle requiring recognition of the parent state was waived in some cases of decolonization, in deference to the principle of selfdetermination, in non-decolonization cases the UN has only admitted to membership after recognition by the parent state, or at least a renunciation by the parent state of a claim to the territory of the new state. See the text accompanying nn 51 and 52. 176

  Pakistan was admitted by GA Res 108 (II) (1947). See also UNSC Res 29 (1947). India was an original member of the UN, though it was not independent of the UK at the time (see n 5). When the separate states of India and Pakistan were granted independence by the UK, the UN Legal Counsel provided an opinion in which it was stated that, ‘From the viewpoint of international law, the situation is one in which a part of an existing state breaks off and becomes a new state. On this analysis, there is no change in the international status of India; it continues as a state with all the treaty rights and obligations, and consequently, with all the rights and obligations of membership in the United Nations. The territory which breaks off, Pakistan, will be a new state;…and it will not, of course, have membership in the United Nations.’ See UN Press Release PM/473, 12 August 1947. This position was reflected in an agreement reached between India and Pakistan and promulgated in the Schedule to the Indian Independence (International Arrangements) Order 1947. Upon Independence on 15 August 1947, the Foreign Minister of Pakistan sent a cable to the UN, expressing the view that both India and Pakistan should become members of the UN automatically upon independence, but also stating that ‘If, however, this view is not accepted, I hereby apply for admission of Pakistan as a Member of the United Nations.’ Pakistan’s application (which was supported by India) was treated as an application for new membership, and membership was recommended by the Security Council on that basis. In the General Assembly, Argentina expressed the view that both Pakistan and India should be treated equally, such that they either both automatically become members or they both had to apply for membership. No definitive conclusion was reached as to the correct position, but it was agreed to admit Pakistan to new membership and to seek guidance from the Sixth (Legal) Committee for use in future cases. That Committee reported back, stating (UN Doc A/C.1/212 (1947), pp 582–3, annex 14g; 1947–48 UNYB 39–40): 1.  That, as a general rule, it is in conformity with legal principles to presume that a State which is a Member of the Organization of the United Nations does not cease to be a member simply because its Constitution or its frontier have been subjected to changes, and that the extinction of the State as a legal personality recognized in the international order must be shown before its rights and obligations can be considered thereby to have ceased to exist. 2.  That when a new State is created, whatever may be the territory and the populations which it comprises and whether or not they formed part of a State Member of the United Nations, it cannot under the system of the Charter claim the status of a Member of the United Nations unless it has been formally admitted as such in conformity with the provisions of the Charter. 3.  Beyond that, each case must be judged according to its merits. For consideration of this episode, see The Succession of States in Relation to Membership in the United Nations: Memorandum Prepared by the Secretariat, UN Doc A/CN4/149 (1962). It is worth noting that the request of a legal opinion from the Sixth Committee is highly unusual, especially as the Legal Counsel had already provided an opinion setting out his view of the legal position in the particular case.

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177

  This case is discussed in section 4, ‘Readmission to membership’. Suffice it to note that in the special circumstances of this case, Syria was simply allowed to resume its membership, and the membership of the United Arab Republic (which was now just Egypt) in the organization and in specific organs continued. 178

  Singapore was admitted by GA Res 2010 (XX) (1965). See also UNSC Res 213, 21 September 1965. 179

  Bangladesh was admitted by GA Res 3203 (XXIX) (1974. See also UNSC Res 351, 17 September 1974. 180

  Estonia, Latvia, and Lithuania were admitted by GA Res 46/4, 46/5, and 46/6 (1991) (respectively). See also UNSC Res 709,710, and 711 (1991). 181

  Eritrea was admitted by GA Res 47/230 (1993). See also UNSC Res 828 (1993).

182

  Montenegro was admitted by GA Res 60/264 (2006). See also UNSC Res 1691 (2006).

183

  South Sudan was admitted by GA Res 65/308 (2011). See also UNSC Res 1999 (2011).

184

  Other than the Baltic Republics of Estonia, Latvia, Lithuania, and other than Russia.

185

  See section 5.1.1, ‘Break-up of the Soviet Union’.

186

  See section 2.4, ‘Divided states’ and section 2.5, ‘Merger of states’.

187

  See the legal opinion of the Sixth Committee of the General Assembly, UN Doc A/C. 1/212 (1947), pp 582–3, annex 14g, referred to in n 176. 188

  Crawford, n 49, 707, citing Williams, ‘State Succession and the International Financial Institutions: Political Criteria v Protection of Outstanding Financial Obligations’ (1994) 43 ICLQ 776, at 785. 189

  See statement of the CSFR Foreign Ministry cited at Scharf, ‘Musical Chairs: The Dissolution of States and Membership in the United Nations’ (1995) 28 Cornell ILJ 29, 65: ‘[T]he Czech and Slovak Federal Republic as well as CSFR membership of the United Nations will cease to exist on December 31, 1992.’ 190

  GA Res 47/221 and 222 (1993) and UNSC Res 800 and 801 (1993). Another case of extinction of legal personality of a state, but that which was only in the process of admission to the UN and was not yet a member, was the situation of the Federation of Mali. The Federation of Mali applied for UN membership on 23 June 1960, three days after independence from France. The Security Council recommended that it be admitted to membership by Res 139 (1960) of 28 June 1960. However, in August 1960, Senegal withdrew from the Federation and applied for membership of the UN. The Republic of Mali (which was known as the Sudanese Republic when part of the Federation) also applied for admission as a new state on 22 September 1960. The Security Council recommended that two states be admitted to membership on 28 September 1960 (UNSC Res 158 and 159 (1960)) and GA Res 1490 (1960) and 1491 (XV) (1960) admitted them to membership. The individual applications of both states in August and September 1960 suggest that both states were agreed that the Federation had become extinct as a legal person. See Cohen, ‘Legal Problems Arising from the Dissolution of the Mali Federation’ (1961) 31 BYIL 375, also published in Higgins, Themes and Theories (2009), 747. 191

  A third possibility will arise in the case of a state formed by a merger of pre-existing states and where, on dissolution, one state continues the legal personality of the state that has just dissolved and another state (or states) resumes the legal personality of a state (or states) that existed before the merger. For consideration of this possibility in the case of Scottish independence from the UK, see Crawford and Boyle, n 174, paras 49 and 95–115. Where the predecessor state that has undergone dissolution was created by a merger of original members of the UN, such as arose with regard to the dissolution of the United Arab Republic (though that was a case of state continuity rather than extinction of the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

predecessor state), questions might arise as to whether those emerging states may be readmitted to membership by a procedure different from that provided for in Art 4 of the UN Charter. See section 4, ‘Readmission to membership’. 192

  See the opinion of the Sixth Committee of the General Assembly, UN Doc A/C.1/212, pp 582–3, annex 14g, referred to in n 176. See also Crawford and Boyle, n 174, para 129. 193

  See the practice discussed in para. 8.54 of this chapter and supported by the legal opinions of the UN Legal Counsel, UN Press Release PM/473, 12 August 1947, and of the Sixth Committee of the General Assembly, UN Doc A/C.1/212 (1947), pp 582–3, annex 14g, referred to in n 176. See also Crawford and Boyle, n 174, para 129. 194

  For a discussion, and defence, of the concept of state continuity, see Crawford and Boyle, n 174, pt 11; and Crawford, n 49, ch 16. 195

  Mullerson, ‘The Continuity and Succession of States by Reference to the Former USSR and Yugoslavia’ (1993) 42 ICLQ 473, at 476. See also, Crawford, n 49, 668–72, for the view that determination of continuity depends on the application of the basic criteria for statehood, as well as subjective considerations of claim, recognition, and acquiescence. However, it is not clear the criteria for statehood are helpful in this regard, given that the question is not whether the entity is a state but whether it is a new or existing state. 196

  See Crawford and Boyle, n 174, paras 68.1 and 68.2; Scharf, n 189, 50.

197

  See Crawford and Boyle, n 174, paras 68.3 and 68.4 for these subjective factors. The case of the dissolution of the former Czechoslovakia is one that indicates that agreement of the parties as to whether there is a continuator state or not would prevail over the position that might otherwise have been established. See nn 187 and 188. 198

  See Blum, ‘Russia Takes Over the Soviet Union’s Seat at the United Nations’ (1992) 3 EJIL 360; Mullerson, n 195; Scharf, n 189. 199

  UN Doc 1991/Russia, Appendix, 24 December 1991, (1992) 31 ILM 138.

200

  See section 1, ‘Introduction’.

201

  Armenia, Azerbaijan, Moldova, Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan were admitted to membership on 2 March 1992. See GA Res 46/223–46/230 (1992) and UNSC Res 732, 735–9, 741 and 742 (1992). Georgia, which only applied for membership in May 1992, was admitted on 31 July 1992. See GA Res 46/241 (1992) and UNSC Res 763 (1992). 202

  See Scharf, n 189, 47–9.

203

  See particularly Blum, n 198.

204

  See Scharf, n 189, 50.

205

  In the Preamble to Minsk Protocol between the Russian Federation, Ukraine and Belarus (13 December 1991, UN Doc A/46/771, (1991) 31 ILM 143), it was stated that the ‘the Union of Soviet Socialist Republics as a subject of international law and a geopolitical reality no longer exists’. Note, however, the slight but important differences in translations between different versions of this document, with one translation stating ‘the USSR is ceasing its existence as a subject of international law and a geopolitical reality’. See Bühler, State Succession and Membership in International Organizations: Legal Theories versus Political Pragmatism (2001), 152, fn 677. The latter translation opens up the possibility that this preambular paragraph was intended simply to recount the developing political situation as seen by the parties, rather than seeking to prescribe a legal stipulation. The Alma Ata Agreement between 11 of the then 12 Soviet Republics (with the exception of Georgia)

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stated that ‘with the establishment of the Commonwealth of Independent States the [USSR] ceases to exist’: UN Docs A/47/60, S/23329 (1991), (1992) 31 ILM 148, at 149. 206

  See Mullerson, n 195, 478.

207

  See ‘Decision by the Council of Heads of State of the Commonwealth of Independent States’, 21 December 1991, UN Doc A/47/60-S/2339 (1991), Annex V: ‘The States of the Commonwealth support Russia’s continuance of the membership of the Union of Soviet Socialist Republics in the United Nations including permanent membership of the Security Council, and other international organizations.’ 208

  Slovenia, Bosnia and Herzegovina, and Croatia were admitted by GA Res 46/236, 46/237, and 46/238 on 22 May 1992. The position of the Former Yugoslav Republic of Macedonia proved to be more complicated due to a dispute with Greece about its name. It was admitted to membership by GA Res 47/225 (1993) (see n 73). 209

  See UN Doc A/46/915 (1992) Ann 1—Official note, dated 27 April 1992, from the Permanent Mission of Yugoslavia to the United Nations—‘Strictly respecting the continuity of the international personality of Yugoslavia, the Federal Republic of Yugoslavia shall continue to fulfil all the rights conferred to, and obligations assumed by, the Socialist Federal Republic of Yugoslavia in international relations, including its membership in all international organizations and participation in international treaties ratified or acceded to by Yugoslavia.’ 210

  Indeed, they appeared to oppose the claim of continuity by the FRY. See, eg, Letter from the Permanent Representative of Croatia to the United Nations (30 June 1992): ‘The Government of the Republic of Croatia considers that no state or other entity can automatically succeed the rights and obligations of former Socialist Federal Republic of Yugoslavia nor inherit it’s [sic] membership in the United Nations. It is therefore unacceptable that the so-called Federal Republic of Yugoslavia, consisting only of Serbia and Montenegro, assumes the seat of former Socialist Federal Republic of Yugoslavia to the United Nations.’ Cited by Scharf, n 189, 54, fn 141. See also Wood, ‘Participation of Former Yugoslav States in the United Nations and Multilateral Treaties’ (1997) 1 MPUNYB 231, 243–5. 211

  See Scharf, n 189, 54–7; Wood, n 210, 246; and Blum, ‘Was Yugoslavia a Member of the United Nations in the Years, 1992–2000? (2007) 101 AJIL 800. 212

  On which see Craven, ‘The European Community Arbitration Commission on Yugoslavia’ (1995) 66 BYIL 333. 213

  Opinion No 8, (1993) 4 EJIL 87, 88.

214

  Opinion No 9, (1993) 4 EJIL 88, 89.

215

  Opinion No 10, (1993) 4 EJIL 90, 91.

216

  UNSC Res 777 (1992).

217

  GA Res 47/1 (1992).

218

  Second preambular paragraph. This was later reaffirmed in the preamble to UNSC Res 1022 (1995). 219

  Letter dated 29 September 1992 from the Under-Secretary-General, the Legal Counsel, addressed to the Permanent Representatives of Bosnia and Herzegovina and Croatia to the United Nations, UN Doc A/47/485 (1992), Annex. 220

  UN Doc A/47/485 (1992), Annex. The letter went on to state that ‘the resolution does not take away the right of Yugoslavia to participate in the work of organs other than Assembly bodies’. By a later resolution (UNSC Res 821 (1993)), the Security Council recommended to the General Assembly that it decide that the FRY shall not participate in the work of ECOSOC, a recommendation accepted and acted upon by the Assembly in GA From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Res 47/229 (1993). Implementation of this resolution brought an end to the participation of the FRY in any UN organs. 221

  In 2000, the claim of continuity with the SFRY was abandoned and the FRY applied for new membership of the UN. The FRY was admitted to membership by GA Res 55/12 (2000) and UNSC Res 1326 (2000). 222

  About 10.3 million out of a total SFRY population of 23.7 million. See Weller, ‘The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia’ (1992) 86 AJIL 569. 223

  Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina) v Yugoslavia (Preliminary Objection) ICJ Rep 1996, p 595, where Bosnia was the applicant asserting that the Court had jurisdiction, and Yugoslavia, though it objected to the exercise of the Court’s jurisdiction, was at that stage maintaining that it was the continuation of the SFRY. 224

  Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina) v Yugoslavia (Preliminary Objection), ICJ Rep 2003, p 7, para 71. 225

  ibid, para 72.

226

  Eg, Legality of the Use of Force (Serbia and Montenegro v United Kingdom) (Preliminary Objections) (Judgment, 15 December 2004) ICJ Rep 2004, p 1307, para 76. 227

  ibid, paras 77 and 89.

228

  Joint Declaration of Vice-President Ranjeva, Judges Guillaume, Higgins, Kooijmans, AlKhasawneh, Buergenthal. and Elaraby, ibid. 229

  Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina v Yugoslavia) (Judgment of 26 February 2007) ICJ Rep 2007, p 43. 230

  Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (Preliminary Objections) (Judgment of 18 November 2008) ICJ Rep 2008, p 412. 231

  ibid, para 81.

232

  ibid, paras 78–85. The decision of the Court rejecting Serbia’s preliminary objection that at the time the proceedings were filed against it, it was not a UN member (and therefore not a party to the ICJ Statute) was reached by a majority of 10:7, though the reasoning stated in the text was only adopted by 9 of the judges, with 8 of them rejecting it. Although Vice President Al-Khasawneh was in the majority of ten, he reached his decision on other grounds. 233

  Eg, Legality of the Use of Force (Serbia and Montenegro v United Kingdom) (Preliminary Objections) (Judgment, 15 December 2004) ICJ Rep 2004, p 1307. 234

  See Blum, ‘Consistently Inconsistent: The International Court of Justice and the Former Yugoslavia (Croatia v. Serbia)’ (2009) 103 AJIL 264, at 267–9. 235

  See particularly para 8.57.

236

  See Art 9(2) of the UN Charter, providing for no more than five representatives for each member in the General Assembly; whereas under Art 23(2), Art 61(4), and Art 86(2), members of the Security Council, ECOSOC, and the Trusteeship Council shall have just one representative.

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237

  See ‘Practice of the General Assembly with Regard to the Examination of Credentials submitted by Member States’ (1985) UN Juridical YB 128, at 129, para 8, relying on GA Res 396 (V) (1950). 238

  See Chapter IV (Rules 27–29) of the General Assembly’s Rules of Procedure, UN Doc A/ 520/Rev.18 (2016), and Chapter III (Rules 13–17) of the Provisional Rules of Procedure of the Security Council (S/96/Rev.7 (1982)); Rule 17, ECOSOC Rules of Procedure; Rules 11– 18, Rules of Procedure of the Trusteeship Council. 239

  The rules of procedure do not define credentials, but they are in essence documents that ‘designate the representatives of the Member State’: ‘Scope of “Credentials” in Rule 27 of the Rules of Procedure of the General Assembly: Statement by the Legal Counsel Submitted to the President of the General Assembly at his Request’, UN Doc A/8160 (1970), para 2. 240

  Rule 27, GA Rules of Procedure; Rule 13, SC Provisional Rules of Procedure.

241

  Rule 15, SC Provisional Rules of Procedure. The Secretary-General will prepare a report on the matter for consideration by the Council. 242

  In practice, it is the temporary President of each new session of the Assembly (the outgoing President from the previous session) who proposes the membership of the Committee. There is a well-established practice by which China, Russia, and the US are represented on the Credentials Committee at each session of the Assembly. See ‘Practice of the General Assembly with Regard to the Examination of Credentials submitted by Member States’, n 237, 129, para 1. 243

  ibid, para. 4.

244

  Although Rule 27 of the Rules of Procedure stipulates that credentials of members of a delegation shall be submitted to the Secretary-General not less than one week before the opening of a session of the Assembly, it frequently happens that credentials are submitted much later than the opening of the session, and the Credentials Committee may not meet until a couple of months after the session has opened (ibid). 245

  Rule 29, GA Rules of Procedure.

246

  Magiera, ‘Article 9’ in Simma et al (eds), n 1, 454, para 19.

247

  See UN Doc A/8160 (1970), n 239, para 2; see also section 3.1, ‘Suspension from membership’. 248

  See Magiera, n 246, 455, para 27.

249

  The representatives of the monarchy were replaced by the representatives of the new Republican Government. See SCOR, 13th year, 827th, 834th, and 838th meetings. 250

  Following independence from Belgium in June 1960, the Congo descended into chaos, with competing governments established by the Head of State (Kasa-Vubu) and the Prime Minister (Lumumba), and later a third headed by the Chief of Military Staff (Mobutu). The Assembly was faced with delegations representing the Kasa-Vubu and Lumumba governments, and voted in November 1960 to accredit the representatives of Kasa-Vubu. See the report of the Credentials Committee, in GAOR, 15th session, Annexes item n.3. For discussion in the Assembly, see GAOR, 15th session, plenary meeting; 896th, 912th, 917– 924th meetings. See also UN RP Supp no 3 (1959–66) vol I. 251

  In this case, the delegates representing the Yemeni Monarch were replaced by those representing a Republican Government in December 1962, after the latter Government gained control over a considerable part (though not all) of the country. See GAOR, 17th

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session, plenary meeting, vol III, 1201st and 1202nd meetings; UN RP Supp no 3 (1959–66) vol I. 252

  See Warbrick, ‘Kampuchea: Representation and Recognition’ (1981) 30 ICLQ 238. In this case, the Assembly was faced with competing claims by representatives of the Democratic Kampuchea and the Government of the People’s Republic of Kampuchea. Although it was the latter that was established in Cambodia following the Vietnamese invasion, with the former being in exile outside the country, the Assembly decided from 1979 till 1990 to accredit the representatives of Democratic Kampuchea (the Khmer Rouge). See the 1979 Report of the Credentials Committee, UN Doc A/34/500; and also UN Docs A/39/PV.42 (1984); A/37/PV.43 (1982); A/38/PV. 34 (1983); A/39/PV.32 (1984); A/42/PV. 36 (1987) A/43/PV.33 (1988); A/44/PV.32 (1989). Credentials of Democratic Kampuchea were questioned but accepted in the Credentials Committee and the Assembly on several occasions thereafter, but see UN RP Supp no 8 (1989–94) vol I, paras 17–23. However, in 1997, when two sets of credentials were received from persons claiming to represent Cambodia, ‘the Committee decided to defer a decision on the credentials of Cambodia on the understanding that, pursuant to the applicable procedures of the Assembly, no one would occupy the seat of Cambodia at the fifty-second session’ of the Assembly: UN RP Supp no 9 (1995–99) vol II, para 21. 253

  See GA Res 46/7 (1991), which condemned the ‘illegal replacement of the constitutional President of Haiti’ and ‘affirm[ed] as unacceptable any entity resulting from that illegal situation’. 254

  In 1980, during the 6th emergency session of the General Assembly, on the question of Afghanistan, the view was expressed in meetings of the Credentials Committee that the fact that no objection had been made to the participation of the Afghan delegation should in no way be interpreted as acquiescence in the situation created by the armed intervention in Afghanistan. The Report of the Committee simply noted those reservations. See UN RP Supp no 6 (1979–84) vol I, para 41. Similar reservations were expressed and noted in subsequent emergency special sessions and regular sessions (ibid, para 42; UN RP Supp no 7 (1985–88) vol II, paras 13–14; UN RP Supp no 8 (1989–94) vol II, paras 12–16). On subsequent occasions when the Committee received two sets of credentials from persons claiming to represent Afghanistan, no consensus on a decision could be reached in the Credentials Committee. It was decided, in each case, to defer a decision, on the understanding that the representatives of Afghanistan then in New York could continue to participate in the work of the Assembly. See UN RP Supp no 9 (1995–99) vol II, paras 12–20 and UN RP Supp no 10 (2000–09) vol II, paras 10–12. 255

  The General Assembly, on the recommendation of the Credentials Committee, voted to approve the credentials of the National Transitional Council of Libya, which was coordinating the fight against the rule of Colonel Ghadaffi (UN Doc A/66/PV.2 (2011)). 256

  See Magiera, n 246, 456–7, paras 30–31, who states that in the course of the practice of the Assembly, ‘neither a clear line of reasoning nor a definite standard of decision has developed. At most, a tendency towards the principle of effectiveness can be observed.’ However, this contention is questionable, given that in the most recent cases of Cambodia (n 252), Haiti (n 253), and Libya (n 255), the Assembly rejected the credentials of authorities in effective control of territory or, in the case of Afghanistan (n 254), at least failed to accept the credentials of that authority. In these cases, the Assembly (or members of the Assembly) seemed to take into account whether the government had come into power by constitutional means, as well as the degree of international recognition of the government.

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257

  See the Afghanistan situation referred to in n 254.

258

  See the situation with respect to Cambodia in 1997, referred to in n 252.

259

  See Halberstam, ‘Excluding Israel from the General Assembly by a Rejection of its Credentials’ (1984) 78 AJIL 179. See UN RP Supp no 10 (2000–09) vol II, para 13; UN RP Supp no 9 (1995–99) vol II, paras 24–5; UN RP Supp no 8 (1989–94) vol II, para 24; UN RP, Supp no 7 (1985–88) vol II, paras 19–20; UN RP Supp no 6 (1979–84) vol II, paras 49–50. 260

  See UN RP Supp no 2 (1955–59) vol I.

261

  In the 25th session, in 1970, the Credentials Committee had been asked to make a special report on the question of the credentials of the South African delegation. Although the Committee approved those credentials, an amendment was accepted in the Assembly to adopt the report of the Credentials Committee, ‘except with regard to the credentials of the representatives of the Government of South Africa’. Similar amendments were adopted in the 26th, 27th and 28th sessions, as well as at the 6th special session in 1974 (UN RP Supp no 5 (1970–78) vol I). 262

  In the 25th session (1970), the President of the Assembly took the view that the adoption of the amendment referred to in n 261 did ‘not affect the right and privileges of membership of South Africa’. See UN Doc A/PV. 1901 (1970). See also statement of the Assembly President, UN Doc A/PV.2141 (1973). 263

  See section 3.1, ‘Suspension from membership’.

264

  See GA Res 3206 (XXIX) (1974).

265

  See UN Doc A/PV.2281 (1974). This interpretation was upheld by the Assembly (ibid).

266

  See ‘Scope of “Credentials” in Rule 27 of the Rules of Procedure of the General Assembly: Statement by the Legal Counsel Submitted to the President of the General Assembly at his Request’, UN Doc A/8160 (1970); Magiera, n 246, 457–60, paras 32–9. 267

  See Crawford, n 49, 210–19.

268

  GA Res 2758 (XXXVI) (1971).

269

  GA Res 2758 (XXXVI) (1971), adopted by 76 votes in favour, 35 against, with 17 abstentions. As this resolution dealt with representation rather than membership, it was not treated as an important question such that it would require approval by a two-thirds majority of the Assembly under Art 18(2) of the UN Charter. 270

  See discussion in n 10. Following the refusal of the UN Secretary-General to transmit the application for membership to the Security Council, two referendums were held in Taiwan, on the same day in March 2008, on the question of whether the entity should apply for UN membership. The questions in the two referendums were different. One asked whether Taiwan should seek membership of the UN under the name ‘Taiwan’. The second asked whether Taiwan should apply ‘to return to the United Nations and to join other international organizations under the name “Republic of China,” or “Taiwan,” or other name that is conducive to success and preserves our nation’s dignity’. The results of both referendums were declared invalid on account of voter turnout being below the 50 per cent point required by Taiwanese law. See Winkler, ‘Taiwan’s UN Dilemma: To Be or Not to Be’, Op-Ed, Brookings Institution, 20 June 2012, available at https://www.brookings.edu/ opinions/taiwans-un-dilemma-to-be-or-not-to-be/ 271

  See Suy, ‘The Status of Observers in International Organizations’ in (1978-III) 160 RCADI 75, at 83.

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272

  With respect to the General Assembly and the Security Council, Art 35(2) provides that ‘A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance, for the purpose of the dispute, the obligations of pacific settlement provided in the present Charter.’ With respect to ECOSOC: (i) Art 70 makes provision for representatives of UN specialized agencies to participate, without vote, in deliberations of that organ and commissions established by it; and (ii) Art 71 empowers ECOSOC to make suitable arrangements for consultations with non-governmental organizations (NGOs) concerned with matters within its competence. See generally ch 5, ‘The Economic and Social Council’, section 5, ‘Participation in meetings’. No specific provision is made in the UN Charter for participation by non-member states in the work of ECOSOC. Nor do the Charter provisions dealing with the Trusteeship Council contain a specific provision on participation by nonmembers of the organization (see generally ch 4, ‘The Trusteeship Council’) However, under Art 87 of the UN Charter, the Trusteeship Council may receive reports submitted by an administering authority, examine petitions in consultation with the administering authority, or visit trust territories at times agreed upon with administering authority, and it should be recalled that the administering authority need not be a UN member. Italy was administering authority of Somaliland from 1950, although Italy only became a UN member in 1955. See UN Doc T/456, Trusteeship Agreement for the Territory of Somaliland under Italian Administration, adopted by the Trusteeship Council on 27 January 1950. The very special case of participation by states that are not members of the UN in ICJ proceedings is provided for in Art 93(2) of the Charter and Art 35(2) and (3) of the ICJ Statute. Also, Art 4 of the Statute of the Court provides that the conditions under which a state which is party to the Statute of the Court but not a member of the UN may participate in election of members of the Court shall, in the absence of a special agreement, be laid down by the General Assembly upon the recommendation of the Security Council. Those conditions are laid down in GA Res 264 (III) (1948) and provide that such a non-member is to participate in the election in the Assembly in the same manner as UN members. 273

  The individual organs have also dealt with this issue in their rules of procedure. The ECOSOC Rules of Procedure contain the most detail on this matter, with the issue being addressed in Chapter XII of those Rules. Separate provision is made for the participation of non-member states (Rule 72); national liberation movements (Rule 73); specialized agencies (Rules 75–78); and other intergovernmental organizations (Rule 79). See discussion in ch 5, ‘The Economic and Social Council’, section 5.5, ‘Other participants’. The treatment of this issue in the Rules of Procedure of the other organs is much more brief and vague. Rule 39 of the Security Council’s Provisional Rules of Procedure (UN Doc S/96/Rev.7) provides that the Security Council may invite any person whom the Council considers competent to supply it with information or give other assistance in examining matters within its competence. On a number of occasions, the Security Council has invited the Palestine Liberation Organization (PLO) to participate in its meetings without relying on Rule 39 or any particular rule. See (1982) UN Juridical YB 158. Likewise, the General Assembly’s Rules of Procedure (UN Doc A/520/Rev.18 (2016)), only make a brief reference to non-members when they provide in Rule 13 that the agenda shall include items placed on it by nonmember states under Art 35(2) of the UN Charter. In practice, the General Assembly has, over the years, adopted a series of resolutions inviting various entities to participate in the work of the Assembly as observers. See the list in n 274. 274

  See ‘List of non-Member States, entities and organizations having received a standing invitation to participate as observers in the sessions and the work of the General Assembly’,

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Note by the Secretariat, UN Doc A/INF/71/5, 12 January 2017. This list contains reference to the relevant resolutions of the Assembly conferring observer status on each entity. 275

  The UN’s website has a list of those states and international organizations that have permanent offices at UN Headquarters, as well as those which do not. See at http:// www.un.org/en/sections/member-states/intergovernmental-organizations/index.html. 276

  See Decision 49/426 of 19 December 1994.

277

  See particularly GA Res 58/314 (2003) on ‘Participation of the Holy See in the work of the United Nations’ and GA Res 43/160A (1988) on ‘Observer status of national liberation movements recognized by the Organization of African Unity and/or the League of Arab States’ (which dealt largely with the PLO and South West Africa People’s Organization (SWAPO)). The former contains an annex listing the rights and privileges of the Holy See within the UN, including the right to participate in the general debate in the Assembly; to be inscribed on the list of speakers at any plenary meeting; the right of reply; to have its communications circulated as official documents of the Assembly or of conferences convened under the auspices of the Assembly; and to co-sponsor draft resolutions that refer to the Holy See (but those draft resolutions shall only be put to a vote upon request from a member state). The other observer with extensive procedural rights is the European Union (EU), see GA Res 65/276 (2011). That Resolution also includes an annex with a list of rights and privileges of participation that are similar to those of the Holy See. There are some differences between the rights of the EU and those of the Holy See. For example, the former is not entitled to co-sponsor draft resolutions, whereas the latter can co-sponsor resolutions that refer to the Holy See. Whereas the Holy See is simply stated to have ‘The right to reply’, the EU is ‘Allowed to exercise the right of reply regarding positions of the European Union as decided by the presiding officer; such right of reply shall be restricted to one intervention per item’. An example of an observer’s co-sponsoring a draft resolution in the General Assembly was the case of Palestine co-sponsoring the resolution of the Assembly requesting the Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Rep 2004, p 136. 278

  Except in special cases like voting within the Assembly for judges of the ICJ, where nonmember states that are party to the Statute are entitled to vote (see n 272). 279

  However, pursuant to Art 10(1)(a) of the Statute of the International Residual Mechanism for Criminal Tribunals, adopted by UNSC Res 1966 (2010), non-member states maintaining permanent observer missions at UN Headquarters have the right to submit nominations for and to vote in the elections for the permanent and ad litem judges of the Residual Mechanism. On the International Residual Mechanism for the Criminal Tribunals, see ch 31, ‘Criminal Tribunals Established by, or in Relationship with, the UN’, section 1.9, ‘International Residual Mechanism for Criminal Tribunals’ (in relation to International Criminal Tribunal for the Former Yugoslavia), and section 2.9, ‘International Residual Mechanism for Criminal Tribunals’ (in relation to International Criminal Tribunal for Rwanda). 280

  See Bartram and Lopez, ‘Observer Status’ in United Nations, Law, Policies and Practice (vol 2, ed Wolfrum, 1995), 936. 281

  See, eg, GA Res 45/6 (1990) relating to the International Committee of the Red Cross (ICRC); and GA Res 64/122 (2009) relating to the Global Fund to Fight AIDS, Tuberculosis, and Malaria.

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282

  In GA Res 3237 (XXIX) (1974), the General Assembly invites the PLO ‘to participate in the sessions and the work of all international conferences convened under the auspices of the General Assembly’ (para 2), and considers that the PLO ‘is entitled to participate in the sessions and the work of all international conferences convened under the auspices of other organs of the United Nations’ (para 3). GA Res 67/19 (2012), with regard to Palestine, states that the Assembly ‘Decides to accord to Palestine non-member observer State status in the United Nations’. GA Res 58/314 (2004), relating to the Holy See, ‘Acknowledges that the Holy See, in its capacity as an Observer State, shall be accorded the rights and privileges of participation in the sessions and work of the General Assembly and the international conferences convened under the auspices of the Assembly or other organs of the United Nations, as well as in United Nations conferences as set out in the annex to the present resolution’. The Annex to that Resolution then sets out the modalities for participation by the Holy See. Under GA Res 3280 (XXIX) (1974), African liberation movements are invited to participate ‘in conferences, seminars and other meetings held under the auspices of the United Nations which relate to their countries’. 283

  In a memo prepared in 1975, the Office of Legal Counsel set out guidelines to be followed in the case of observers ([1975] UN Juridical YB 166). According to that memo, a resolution permitting participation by an observer in the ‘sessions’ of the General Assembly will mean that the observer is entitled to participate in both the plenary and Main Committees of the Assembly (ibid, para 11). However, in the case of GA Res 3280 (XXIX) (1974), which provided for the participation of African liberation movements ‘in the relevant work of the Main Committees of the General Assembly and its subsidiary organs concerned’, the view was expressed that they could not participate in the plenary ([1975] UN Juridical YB 166, para 12). In addition, it was stated that where the resolution simply referred to participation in the ‘sessions’ and ‘work’ of the Assembly, this would seem prima facie to entitle participation in the subsidiary organs of the Assembly (ibid, para 13). In addition, certain resolutions might explicitly permit participation in international conferences convened by the Assembly, in which case a right of participation would be clear (ibid, paras 14 and 15). 284

  See ch 16, ‘United Nations Privileges and Immunities’.

285

  Part IV of the Vienna Convention on Representation 1975. See El-Erian, ‘Vienna Convention on the Representation of States in their Relations to International Organizations of a Universal Character’ in Encyclopedia of Public International Law (vol IV, 2nd edn, ed Bernhardt, 1995), 1317, at 1318. The treaty is not yet in force. 286

  See the discussion of the position in Switzerland and Austria in Fastenrath, n 25, 359– 61, paras 58–60. 287

  See the discussion in ch 16, ‘United Nations Privileges and Immunities’, section 4.8, ‘The position of observers and other invitees to the UN’. 288

  See, eg, the invitations by the Assembly’s First Committee to Albania and Bulgaria, which were then non-members, to participate in the debate, during its 2nd session, regarding the settlement of the Greek question (UN RP (1945–54) vol I, pp 650–1, para 91). See also Italy’s participation at the 5th–8th sessions of the Assembly, as a non-member state and Administering Authority of the Trust Territory of Somalia, in connection with discussions concerning the draft Trusteeship Agreement for that territory, and in discussions on the report of the Trusteeship Council (ibid, para 93). 289

  In 1949, the Secretary-General reported that, ‘in addition to the permanent missions to the United Nations, a number of non-member states—Italy, the Republic of Korea and Switzerland—had appointed observers to follow the work of the United Nations at the seat

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of the United Nations. In addition, Albania had informed the Secretary-General that it desired to send an observer to the seat of the United Nations’ (1948–49 UNYB 973). 290

  See Fastenrath, n 25, 356, para 46.

291

  1948–49 UNYB 973.

292

  See UN RP (1945–54) vol I, pp 652–3, paras 96–9.

293

  See Fastenrath, n 25, 356, para 46.

294

  The Holy See had already become a permanent observer state at the UN in 1964, and it had become a member of a number of international organizations as well as being a party to several treaties. However, in GA Res/58/314 (2004), the Assembly acknowledged the observer state status of the Holy See, and set out its rights and privileges of participation in the UN. 295

  By GA Res 3210 (XXIX) (1974) and GA Res 3237 (XXIX) (1974), respectively, the PLO was invited to participate in the deliberations of the General Assembly as the representative of the Palestinian people, and was granted observer status. GA Res 43/177 (1988) acknowledged the proclamation of the State of Palestine by the Palestine National Council on 15 November 1988, and decided that the designation ‘Palestine’ should be used in place of the designation ‘Palestine Liberation Organization’ in the UN system, without prejudice to the observer status and functions of the PLO within the UN. After its application for membership of the UN, submitted in September 2011, proved unsuccessful, the Assembly, by GA Res 67/19 (2012), ‘Decide[d] to accord to Palestine nonmember observer State status in the United Nations, without prejudice to the acquired rights, privileges and role of the Palestine Liberation Organization in the United Nations as the representative of the Palestinian people, in accordance with the relevant resolutions and practice’. 296

  In a symbolic gesture, the General Assembly later decided to allow flags of non-member observer states maintaining permanent observer missions at Headquarters (including Palestine) to be raised at Headquarters and UN Offices following the flags of the members states of the organization (see GA Res 69/320 (2015)). 297

  See Sybesma-Knol, The Status of Observers in the United Nations (1981), 26–7.

298

  See, eg, Ronen, ‘Recognition of the State of Palestine: Still Too Much Too Soon?’ in Sovereignty, Statehood and State Responsibility (eds Chinkin and Baetens, 2015), 229; Vidmar, ‘Palestine and the Conceptual Problem of Implicit Statehood’ (2013) 12 Chinese JIL 19; Akande, ‘Palestine as a UN Observer State: Does this Make Palestine a State?’, EJIL:Talk!, 3 December 2012; Dugard, ‘Palestine and the International Criminal Court: Institutional Failure or Bias?’ (2013) 11 JICJ 563. 299

  This is the formula provided for in Art 81 VCLT, by which that Convention was opened for signature by all states members of the UN, or of any of the specialized agencies, or of the International Atomic Energy Agency or parties to the Statute of the ICJ, and by any other state invited by the General Assembly of the UN to become a party to the Convention. This type of entry-into-force clause was called the ‘Vienna formula’. Since Palestine had become a member of UNESCO in October 2011, it had already fulfilled one of the criteria of the Vienna formula. On that basis, it was able to accede, on 2 April 2014, to 14 treaties for which the Secretary-General acts as depositary, as well as to the four Geneva Conventions of 1949 dealing with the law of armed conflict. In addition, on 2 January 2015, Palestine acceded to the Statute of the International Criminal Court.

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300

  See Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, UN Doc ST/LEG/7/Rev.1 (1999), p 23 para 81. 301

  ibid, paras 81–90. In particular, it was stated that ‘The “practice of the General Assembly”, referred to in the above-mentioned understanding is to be found in unequivocal indications from the Assembly that it considers a particular entity to be a State even though it does not fall within the ‘“Vienna formula”. Such indications are to be found in General Assembly resolutions ’ (ibid, para 83). 302

  See ‘Status of Palestine in the United Nations: Report of the Secretary-General’, UN Doc A/67/738, 8 March 2013, para 7: ‘With respect to conferences convened under the auspices of the General Assembly and other United Nations conferences, as a non-member observer State of the United Nations and a member of UNESCO, the State of Palestine may participate fully and on an equal basis with other States in conferences that are open to members of specialized agencies or that are open to all States.’ (emphasis added) Clearly the same analysis would apply to treaties using the same formulas. The recognition of Palestine as a non-member with observer state status appears to have been decisive in this extension of participation rights to Palestine. In a July 2012 ‘Note to the Secretary-General’s Chef de Cabinet concerning the participation of Palestine and the Holy See in two upcoming United Nations Conferences’ from the UN Office of Legal Affairs (2012) UN Juridical YB 468–9, the view had been taken at that point (which was prior to the adoption of the General Assembly resolution conferring observer state status on Palestine) that Palestine could not participate in a conference organized on the basis of the ‘all states’ formula, since Palestine was not treated by the General Assembly as a state but only as a sui generis entity. It is not at all clear that the analysis in the July 2012 note regarding the implementation of the ‘all states’ formula was consistent with prior practice and correct, even at that point in time. Since Palestine had at that time already been admitted to membership of one specialized agency (UNESCO), thus falling within the ‘Vienna formula’, prior practice and the logic of that prior practice suggested that it should have also been treated as falling within the ‘all states’ formula even before the conferral of observer state status by the Assembly. Prior practice of the Secretary-General suggests that the ‘all states’ formula was broader than the ‘Vienna formula’, in that all states within the ‘Vienna formula’ were ipso facto treated as within the ‘all states’ formula, and it was with regard to states falling outside the ‘Vienna formula’ that further guidance was sought. This can be seen in Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, n 300, para 81, where it is stated that where the ‘all states’ formula is used, the Secretary-General ‘would be able to implement it only if the General Assembly provided him with the complete list of the States coming within the formula, other than those falling within the “Vienna formula”’ (emphasis added). In other words, it was assumed that states falling within the Vienna formula would automatically also be within the ‘all states’ formula. The examples of the Cook Islands and the Marshall Islands set out ibid also support that assumption. Perhaps in the case of Palestine it was assumed that even though it fell within the ‘Vienna formula’, the fact that the Secretary-General already had guidance (in the form of previous resolutions on the observer status of that entity, see n 295) from the General Assembly on how to treat Palestine, made this a special case where the normal interpretation of the ‘all states’ formula would not apply. 303

  See ‘Note to the Secretary-General’s Chef de Cabinet concerning the participation of Palestine and the Holy See in two upcoming United Nations Conferences’, n 302.

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304

  See also Akande, n 298 and Vidmar, n 298. The latter author accepts that the effect of the resolution is that Palestine is to be regarded as a state within the UN for the purposes of conferences and treaties, but notes that whether or not Palestine is to be regarded as a state from a general legal point of view, and whether UN General Assembly collective recognition is constitutive of statehood more generally, is arguably a different issue. For differing views on this latter question, see the other works referred to in n 298 and Wählisch, ‘Beyond a Seat in the United Nations: Palestine’s UN Membership and International Law’ (2012) 53 Harvard ILJ 226. 305

  See ch 7, ‘United Nations Specialized Agencies’.

306

  See ch 7, ‘United Nations Specialized Agencies’, section 7, ‘Relationship agreements’. See also the ECOSOC Rules of Procedure (Rules 75–78) and the discussion in ch 5, ‘The Economic and Social Council’, section 5.5, ‘Other participants’. 307

  In the 3rd session of the General Assembly, GA Res 253 (III) (1948), which requested the Secretary-General to invite the Secretary-General of the OAS to be present as an observer at sessions of the Assembly, was opposed by some states on the ground that since the UN Charter did not provide for the status of observer, such a decision was unconstitutional. Also, when in GA Res 477 (V) (1950), adopted at the 5th session, the Assembly requested the Secretary-General to invite the Secretary-General of the League of Arab States to attend sessions of the Assembly as an observer, it was noted by the Sixth Committee that this invitation could not be construed as establishing a precedent that would bind the Assembly. See UN RP (1945–54) vol I, p 652, para 95. 308

  See the list referred to at n 274.

309

  From 1969, representatives of national liberation movements nominated by the OAU took part in the Economic Commission for Africa, and also participated as observers in the meetings of the General Assembly’s Fourth Committee: see (1974) UN Juridical YB 154; GA Res 2795 (XXVII) (1971); and (1974) UN Juridical YB 150, respectively. 310

  GA Res 3210 (XXIX) (1974).

311

  GA Res 3237 (XXIX) (1974). By GA Res 43/177 (1988), the Assembly decided that the designation ‘Palestine’ should be used in place of the designation ‘Palestine Liberation Organization’ in the UN system, without prejudice to the observer status and functions of the PLO within the UN. See discussion of Palestine as an observer non-member state in section 7.1, ‘Observer non-member states’. 312

  In GA Res 3276 (XXIX) (1974), the General Assembly invite national liberation movements recognized by both the OAU and the League of Arab States to participate as observers in the conference of the International Women’s Year. A number of UN organs have also extended invitations to national liberation movements recognized by the League of Arab States. See ECOSOC Res 1840 (LVI) (1974). 313

  See GA Res 3280 (XXIX) (1974).

314

  GA Res 31/152 (1976).

315

  ECOSOC Res 1892 (LVII) (1974). Many specialized agencies did make such arrangements. See, eg, Suy, n 271, 113–14; Lazarus, ‘Le Statut des Mouvements de Libération nationale à l’Organisation des Nations Unies’ (1974) 20 AFDI 642. 316

  See section 7.1, ‘Observer non-member states’.

317

  See the discussion in ch 5, ‘The Economic and Social Council’, section 5.5, ‘Other participants’.

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318

  See GA Res 45/6 (1990).

319

  See GA Res 49/2 (1994). See Remans, ‘The Granting of Observer Status By the General Assembly of the United Nations to the International Federation of Red Cross and Red Crescent Societies’ in International Law: Theory and Practice: Essays in Honour of Eric Suy (ed Wellens, 1998), 347. 320

  See GA Res 64/3 (2009).

321

  See GA Res 48/265 (1994).

322

  See GA Res 57/32 (2002).

323

  See Remans, n 319, 347, referring to David, La personnalité juridique international de la Fédération international des Sociétés de la Croix Rouge et du Croissant-Rouge, Legal Opinion delivered to the International Federation, 1995. 324

  See the discussion in para 8.91 and n 307.

325

  See GA Res 49/426 (1994). This resolution was sponsored mainly on the initiative of the US, which had sought for the Sixth Committee to come up with criteria for the granting of observer status. The discussion was largely in reaction to the decision to grant observer status to the Sovereign Military Order of Malta. See Sybesma-Knol, ‘The Continuing Relevance of the Participation of Observers in the Work of the United Nations’ in Wellens (ed), n 319, 371, at 378–9. However, the 1994 resolution has not prevented subsequent decisions by the General Assembly to grant observer status to organizations other than international (ie intergovernmental) organizations. The International Olympic Committee was granted observer status in 2009 (GA Res 64/3 (2009)).

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Part 2 The United Nations: What it is, 9 Powers Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): UN Charter

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(p. 320) 9  Powers 1.  Meaning and relationship to legal personality 9.01 2.  Nature and scope 9.05 3.  General considerations 9.13 4.  Domestic jurisdiction limitation of Article 2(7) 9.21 5.  Substantive content of powers—on the international plane 9.32 6.  Substantive content of powers—in domestic law 9.37 7.  Consequences of ultra vires acts 9.60 Ahmed, ‘The Domestic Jurisdiction Clause in the United Nations Charter: A Historical View’ (2006) 10 Singapore YIL 175, 184–5; Akande, ‘The Competence of International Organizations and the Advisory Jurisdiction of the International Court of Justice’ (1998) 9 EJIL 437; Akande, ‘International Organizations’ in International Law (4th edn, ed Evans, 2014), 248; Alvarez, International Organizations as Law-Makers (2005), 139–43; Amerasinghe, Principles of the Institutional Law of International Organizations (2005), 91– 104; Bantjes, Social Movements in a Global Context: Canadian Perspectives (2007); Caminos and Lavalle, ‘New Departures in the Exercise of Inherent Power by the UN and OAS Secretaries-General’ (1989) 83 AJIL 395; Campbell, ‘The Limits of Powers of International Organisations’ (1983) 32 ICLQ 523; Cannizzaro and Palchetti, ‘Ultra Vires Acts of International Organizations’ in Research Handbook on the Law of International Organizations (eds Klabbers and Wallendahl, 2011), 365, at 372; Cohen and Deng, ‘Sovereignty as Responsibility: Building Block for R2’ in The Oxford Handbook of the Responsibility to Protect (eds Bellamy and Dunne, 2016), 74, at 76; Conforti, The Law and Practice of the United Nations (2005), 127–311; de Wet, The Chapter VII Powers of the United Nations Security Council (2004); Gordon, ‘United Nations Intervention in Internal Conflicts: Iraq, Somalia, and Beyond’ (1994) 15 Mich JIL 519; Gutter, Thematic Procedures of the United Nations Commission on Human Rights and International Law: In Search of a Sense of Community (2006), ch 2; Hassler, Reforming the UN Security Council Membership: The Illusion of Representativeness (2013), 17–23; Higgins, The Development of International Law through the Political Organs of the United Nations (1963), 77, 240–53; Klabbers, An Introduction to International Institutional Law (2002), ch 4; Klabbers, An Introduction to International Organizations Law (2015); Klabbers, ‘The Transformation of International Organizations Law’ (2015) 26 EJIL 9–82; Kunig, ‘Prohibition of Intervention’, MPEPIL (2008), paras 3 and 4; Makarczyk, ‘The International Court of Justice on the Implied Powers of International Organizations’ in Essays in Honour of M Lachs (1984), 500; Michaelsen, ‘Human Rights as Limits for the Security Council: A Matter of Substantive Law or Defining the Application of Proportionality?’ (2014) 19 JCSL 451; Osieke, ‘The Legal Validity of Ultra Vires Decisions of (p. 321) International Organizations’ (1983) 77 AJIL 239; Rajan, The Expanding Jurisdiction of the United Nations (1982); Rama-Montaldo, ‘International Legal Personality and Implied Powers of International Organizations’ (1970) 44 BYIL 111; Reinisch, ‘Contracts between International Organizations and Foreign Private Law Persons’, MPEPIL (2011); Rouyer-Hameray, Les compétences implicites des organisations internationales (1962); Sands and Klein, Bowett’s Law of International Institutions (2009), ch 15, pt II; Sarooshi, The United Nations and the Development of Collective Security (1999); Sarooshi, International Organizations and their Exercise of Sovereign Powers (2005); Schermers and Blokker, International Institutional Law: Unity within Diversity (2003), ch 3; Seyersted, Objective International Personality of Intergovernmental Organizations: Do their Capacities Really Depend upon the Conventions Establishing Them? (1963); Sheeran and Bevilacqua, ‘The UN Security Council and Human From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Rights Obligations’ in Routledge Handbook of International Human Rights Law (eds Sheeran and Rodley, 2014), 388; Skubiszewski, ‘Implied Powers of International Organizations’ in International Law at a Time of Perplexity: Essays in Honour of Shabatai Rosenne (eds Dinstein/Tabori, 1989), 855; Tsagourias, ‘Security Council Legislation, Article 2(7) of the UN Charter, and the Principle of Subsidiarity’ (2011) 24 LJIL 539, at 551; Wellens, ‘The UN Security Council and New Threats to the Peace: Back to the Future’ (2003) 8 JCSL 15; White, The Law of International Organizations (2nd edn, 2005), ch 3; Wood, ‘The Interpretation of Security Council Resolutions’ (1998) 2 MPUNYB 73.

1.  Meaning and relationship to legal personality 9.01  This chapter examines, in general terms, the powers or competences that are conferred on the UN as a separate legal entity. The chapter focuses on how it is to be determined whether the UN has the legal competence to pursue particular activities, whether those activities are operational or relate to the setting of norms. It also considers the types of powers the UN is competent to exercise and the consequence of the organization acting beyond its powers (ultra vires). 9.02  The possession of legal personality by the UN, its specialized agencies, and some of the other separate legal entities in the UN family, on the one hand, and the powers of these bodies, on the other, are concepts that are related but distinct.1 The possession of international legal personality means that these bodies have their own rights and duties. It also means that these bodies have competences or powers vested in them in their own right. However, apart from a few specific competences that are a necessary consequence of separate legality personality of international organizations,2 the possession by international organizations of legal personality does not define the particular powers or competences of the organizations, nor does it mean that they have plenary competence under international law or in municipal legal systems.3 (p. 322) 9.03  The UN and its associated international organizations were created by their member states to perform functions, with necessary consequences for the position of those states, including constraining them in their mutual relations.4 In certain respects, the greater the powers vested in the organizations, the more the freedom of member states is limited.5 Since the UN’s authority to perform its functions is derived from the consent to this arrangement by member states in accepting the UN Charter, the organization can only act within the framework of the powers set out in the Charter.6 As has been recognized by international tribunals, the UN and its organs must act intra vires.7 9.04  Given the relatively discrete roles performed by each of the specialized agencies and other bodies within the UN family but outside the international legal personality of the UN, compared to the broad competence exercised by the organization, the intra vires limitation is in practice more relevant to them.8

(p. 323) 2.  Nature and scope 2.1  Different types of powers 9.05  As an international organization possessing international legal personality, the UN is endowed with powers that arise as a consequence of the functions that have been conferred on it.9 These powers are described variously as ‘express’, ‘implied’, and ‘inherent’. 9.06  The UN’s ‘express’ powers are those that are stipulated in the Charter.10 Its ‘implied’ powers are competences that are not expressly stipulated but arise as a necessary implication of what has been expressly conferred.11 These include competences regarded (p. 324) as necessary to fully exercise expressly articulated powers, in circumstances where the particular means through which the express power is to be exercised are not expressly stipulated.12 This category also covers powers that are said to supplement a non-exhaustive list of examples of the exercise of powers expressly given in the UN Charter.13 The concept From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

of implied powers also extends to powers implied from powers that are themselves implied.14 9.07  A distinction is sometimes drawn between the notion that international organizations have powers that are implied from the express powers or functions conferred on them (implied powers), and the notion that international organizations have the power to perform any international act that has the aim of achieving the functions of the organization (inherent powers).15 However, the distinction between these positions is more theoretical than practical. As will be seen, the practice of the UN and of international courts is to adopt a broad view of implied powers, such that the UN is deemed to have the power to perform any act that contributes to the fulfilment of its purposes. Although such powers may be described as implied powers, the approach taken also seems to fit within the inherent powers theory. 9.08  It may ultimately be a question of one’s preferred terminology, but powers derived from the purposes and principles of the organization are more accurately described as implied powers, as they derive by implication from expressly conferred functions. Once these powers that are to be implied from the expressly stated functions or purposes of the organization are separated out, there is a very limited list of powers that flow directly from the personality of the UN as an international organization, and which may be said to be inherent in the legal personality of international (p. 325) organizations (unless expressly precluded). These inherent powers are the power to bring international claims, recognized by the ICJ in the Reparation for Injuries Advisory Opinion,16 and the power to conclude agreements subject to the law of treaties.17

2.2  Broad doctrine and expansion of powers 9.09  The practice of the UN since its creation has supported a broad doctrine of implied powers. Implied powers are not restricted to those that are necessary for carrying out the functions or competences that are expressly stipulated in the UN Charter but, as has been stated by the ICJ, extend to powers that are implied because they are ‘essential’ for the fulfilment of the organization’s objects and purposes.18 In addition to the fact that powers can be implied from purposes rather than from express powers, what is regarded as essential for fulfilling the purposes has been construed broadly by the ICJ. It is not necessary that the implied power be ‘indispensably required’;19 a power can be implied as long as it is directed at achieving the aims of the organization and is ‘appropriate for the fulfilment’ of such aims.20 9.10  The scope of implied powers has expanded over time. Rather than expanding the competence of the organization through formal Charter amendment, member states have taken an approach to the existence of implied powers that effectively expands the competences of the organization.21 Over time this has meant that the overall balance between the relative weights of express and implied powers has shifted, such (p. 326) that implied powers have assumed greater significance. However, the general acceptance of these developments by member states roots their legitimacy in the practice of the parties to the UN Charter. Furthermore, these powers are understood to be implicit in express provisions of the Charter itself, or more importantly in the purposes and principles of the Charter.22 9.11  Examples of implied powers, some more contested than others, include the power of the UN to exercise competence with respect to the Mandate arrangements of the League of Nations Covenant beyond the circumstances expressly provided for in the Charter;23 to engage in peacekeeping;24 to create criminal tribunals;25 to engage in territorial administration outside the circumstances expressly provided for (as part of the Trusteeship System) in the Charter;26 and to ‘legislate’, ie introduce general provisions to be automatically applicable to some or all member states, including provisions which have

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implications for states’ municipal law, even if such norms contradict other applicable rules of international law.27 9.12  Other ways in which the scope of UN action has expanded include: a broader interpretation of the threshold concept of a threat to international peace and security in Article 39, which enables Chapter VII action by the Security Council; and (addressed in more detail later) a narrower interpretation of the scope of the prohibition in (p. 327) Article 2(7), which, absent a Security Council exception, requires the UN not to intervene in matters deemed to be within the exclusive domain of member states.28 Broader UN action has also been possible through a departure from the express language of the Charter in the case of the requirement that all five permanent members of the Security Council must ‘concur’, ie vote affirmatively, for a resolution to be passed validly by that organ.29 Lastly, the UN’s scope of action has been expanded through arrangements outside the Charter that have provided for a UN role, such as the competence of the Security Council to refer cases to, and temporarily suspend the operation of the jurisdiction of, the International Criminal Court under the terms of the Rome Statute.30

3.  General considerations 3.1  Purposes and principles of the organization 9.13  The purposes and principles of the UN are set out in Articles 1 and 2 of the UN Charter. According to Article 1, the purposes of the UN are: 1.  To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; 2.  To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; 3.  To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and 4.  To be a centre for harmonizing the actions of nations in the attainment of these common ends. 31 (p. 328) 9.14  These purposes and principles operate as the underlying rationale for all the powers of the UN, and so operate as a limitation in that the organization only has those powers that are directed at furthering one or more of them. Their significance extends to the identification of implied powers, as well as interpreting the meaning and scope of express powers.32 A presumption is sometimes relied upon whereby, in the words of the ICJ, ‘when the Organization takes such action that warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization’.33 9.15  All powers, whether vested in the organization as a whole, or in its organs and subsidiary organs in particular, are to be exercised in a manner that is in conformity to the

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purposes and principles.34 The ICJ affirmed that although ‘the purposes are broad…neither they nor the powers conferred to effectuate them are unlimited’.35 9.16  The substantive significance of the interplay between the different principles and purposes, and the question of their relative significance, is contested, and perceptions have changed over time, in particular as regards the importance of the reference to human rights in the third paragraph of Article 1 of the Charter. In 1962, the ICJ held that international peace and security has a ‘primary place’ amongst the different purposes, ‘since the fulfilment of the other purposes will be dependent on the attainment of that basic condition’.36 However, when determining in 2011 whether the Security Council had, in the context of military operations, obliged a member (p. 329) state to take a particular action that was incompatible with the state’s obligations in international human rights law, the European Court of Human Rights (ECtHR) suggested a different approach.37 It invoked both the principle of promoting international peace and security and the principle of protecting human rights as equally relevant to the powers of the Security Council being in conformity to the purposes and principles of the Charter.38 In interpreting a particular determination by the Council, the European Court stated that this requirement of conformity necessitates ‘a presumption that the Security Council does not intend to impose any obligation on Member States to breach fundamental principles of human rights’.39 In the view of that Court, the consequence of the importance of the UN’s purpose in promoting human rights was that when the Security Council authorizes members to take action undoubtedly for the purpose of achieving international peace and security, it is necessary, where that authorization is ambiguous, to ‘choose the interpretation which is most in harmony with the requirements of the…[human rights treaty at issue] and which avoids any conflict of obligations’.40

3.2  Divisions of competence between principal organs and subsidiary organs 9.17  The overall structure of the UN, comprising different principal organs and subsidiary organs, involves a division of competence between these different bodies, in terms of the subject matter with which they can be concerned and the types of action they are (p. 330) entitled to take in relation to this subject matter. In consequence, each body must act within the scope of its powers, not only so as not to exceed the overall powers of the UN, which would compromise the position of the organization with regard to its member states, but also in some cases so as not to encroach on the powers of another body.41 Some divisions of competence between organs operate in a mutually exclusive fashion.42 Other divisions are more nuanced, such as the Security Council’s possessing ‘primary’ but not exclusive responsibility for matters relating to international peace and security, thereby leaving open the existence of responsibilities with respect to this subject matter vested in other organs, notably the General Assembly, but subject to limitations that allow for deferral to the Council in certain circumstances.43 9.18  The principle of respecting institutional divisions of competence also applies to subsidiary organs. These organs have to stay within the boundaries of the powers that have been given to them by their parent organs, so they not only serve the function for which they were created but must also respect the division of competence between them and their parent organs, and ensure that the more general limitations applicable to the parent organs are respected.44 9.19  The delineation of different powers concerning a common enterprise is illustrated in the roles given to different organs with respect to the Office of the High Commissioner for

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Human Rights (OHCHR) when it was created by the General Assembly in Resolution 48/141.45 The Office of Legal Affairs observed: (p. 331) The specific role and responsibilities of the organs…are defined in accordance with their functions and responsibilities within the Organization. Accordingly, it is for the General Assembly to exercise legislative and financial authority; for the Economic and Social Council, through the Commission on Human Rights, to exercise operational guidance; and for the Secretary-General to exercise ‘direction and authority’, as well as to provide the appropriate staff and resources.46 9.20  The potential for disputes to arise concerning divisions of competence between UN principal organs and subsidiary organs, and the succession of powers from one subsidiary organ to another, is illustrated by the attempts made within the Human Rights Council (HRC) to assert an oversight role with respect to the OHCHR, including requesting that the High Commissioner submit her Annual Report on the implementation of activities and the use of funds to the HRC for consideration.47 The UN Office of Legal Affairs determined that such a role would be ultra vires the HRC. Here, the dispute concerned the scope of the competence vested in the HRC, and the consequence of this for the powers of the Secretary-General. The issue of vires was a matter of inter-organ divisions, not relating to the overall competence of the organization.48

4.  Domestic jurisdiction limitation of Article 2(7) 4.1  The provision and its origins 9.21  Article 2(7) of the UN Charter states that: Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.49 (p. 332) 9.22  Just as all organs and subsidiary organs must exercise their powers within the overall framework of the principles and purposes of the organization, so the restriction in Article 2(7) applies to them as to the UN as a whole.50 9.23  One of the main reasons why one of the purposes and principles of the UN is ‘promoting and encouraging respect for human rights and for fundamental freedoms’ was the intent of the founding states to create an organization that would aim to ensure that the atrocities of the Second World War never occurred again.51 Since some of the atrocities were perpetrated by states within their own territories, one proposal at the drafting conference in San Francisco was for a jurisdiction limitation rule that would apply, ‘unless the clear violation of essential liberties and human rights constitutes itself a threat capable of compromising international peace’.52 (p. 333) 9.24  The wording eventually adopted was less clear but broader in scope, creating two alternative possibilities for UN involvement in matters within the domestic jurisdiction of states: (i), that the matters concerned do not fall ‘essentially’ within this jurisdiction; and (ii), that the matters are subject to enforcement measures by the Security Council under Chapter VII of the UN Charter. In both cases the practice of the organization and the changing nature of international relations have led to a very broad interpretation of what is

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possible, amounting to a significant departure from the plain meaning of the language of the article.

4.2  Matters that fall ‘essentially’ within the jurisdiction of member states 9.25  Matters that are expressly addressed and provided for in the UN Charter are generally accepted not to fall within this exclusion.53 Beyond the Charter, another generally accepted category is matters that are subject to rules of international law (whether in customary international law, or in treaties that have been widely accepted), and which are thereby no longer subject to the exclusive competence of the state’s domestic jurisdiction.54 Taken together with the expanded understandings of the organization’s (p. 334) powers under the UN Charter, this renders the scope of the limitation relative, determined according to wider developments in the practice of the organization and general international law, and therefore dynamic, altering over time as organizational practice and international law change.55 9.26  The expansion of the substantive content of international law since 1945 into areas that had previously not been subject to its regulatory framework, and which therefore fell essentially (if not entirely) within the exclusive jurisdiction of states, has been marked, notably in relation to human rights, the environment, trade, and crime. The scope of the jurisdictional limitation of Article 2(7) of the UN Charter has correspondingly been significantly narrowed. 9.27  The practice of invoking the domestic limitation restriction in the political organs has been wide-ranging, covering many different matters and situations.56 This practice has been largely inconclusive in offering a clear indication of the meaning of the limitation in Article 2(7), in that it has invariably involved the invocation of opposing arguments as to whether a particular issue and/or related action fell within or outside the limitation, with the reason for the eventual decision to include or exclude the issue/action being unclear as far as the significance of Article 2(7) is concerned.57 However, the substantive practice of the UN in general, as distinct from UN practice concerned directly with the meaning of this provision, has led the organization into (p. 335) subject matter and action of a nature suggesting that the scope of the limitation has narrowed considerably.58 9.28  Human rights, including the right of self-determination, has become the main area that is clearly no longer perceived as falling within the domestic jurisdiction of states.59 In earlier years, this position was arrived at by qualifying the human rights matter at issue as having some kind of inter-state dimension, whether because of the involvement of a foreign state, or because of the cross-border consequences in terms of, for example, refugee flows and broader instability.60 (p. 336) 9.29  The acceptance that UN activity with respect to human rights issues is not prevented by Article 2(7) is significant, in that it enables member states to act collectively to take positions in relation to these matters with respect to other states, whether or not they would ordinarily not enjoy individual competence as a matter of international law.61

4.3  Matters subject to Security Council determinations 9.30  A second exception to the domestic jurisdiction limitation is that it does not apply where the Security Council acts under Chapter VII of the UN Charter.62 Article 2(7) makes reference to the adoption of enforcement measures, but the practice of the Security Council indicates that the exception operates more broadly, to any matters determined by it to meet the test under Article 39, whether or not this also leads to the adoption of enforcement measures.63 Thus, the Council is competent to make determinations relating to matters that

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fall within the exclusive jurisdiction of one or more member states if those matters constitute a ‘threat to the peace, breach of the peace, or act of aggression’.64 9.31  As with the other organs of the UN, the Security Council has frequently adopted resolutions concerned with human rights, in terms of both general issues and specific situations.65 Although the action is by the Council, in these cases the basis for acting, (p. 337) despite the limitation in Article 2(7), is not necessarily because the action is founded on Chapter VII of the Charter. Rather, the Council would be acting on the basis that the matter is one of ‘international concern’, and therefore not within the domestic jurisdiction of the state concerned.66 The Council is thus able to utilize the first exception to Article 2(7) so as to enable it to take action in matters not covered by Chapter VII, but also with respect to matters under Chapter VI.67 In other words, the jurisdictional limitation of Article 2(7) does not apply to any Security Council determination, whether under Chapter VI or VII, provided the matter is determined to be, respectively, one that is of ‘international concern’ or meets the test of Article 39.

5.  Substantive content of powers—on the international plane 5.1  Power to enter into treaties 9.32  As has already been pointed out, one of the powers inherent in the legal personality of the UN and other organizations is the competence to enter into treaties.68 (p. 338) However, the fact that the UN has a general power to enter into agreements does not indicate which specific agreements the organization has the competence to conclude.69 Determination of this issue will depend on the express powers conferred on the organization, and also on the powers that may be implied from its purposes. Specific powers for the Security Council to enter into agreements with member states in the field of peace and security, and for ECOSOC, with the approval of the General Assembly, to enter into relationship agreements with specialized agencies, are provided for in Articles 43 and 63 of the Charter, respectively.70 When subsidiary (p. 339) organs, agencies, and other bodies of the UN enter into agreements, they do so as part of the UN as a whole, since they are not a distinct legal entity. As it is the UN (of which the organ or body is simply a part) that possesses legal personality, the appropriate designation of the party on the UN side of such agreements is the UN.71 9.33  The primary legal consideration whenever the UN enters into treaties is not whether the organization enjoys the competence to perform such an act in general, but whether the legal position in which the UN is placed by the substantive content of the treaty is compatible with the powers of the organization, in terms of both the limits of the UN’s competence generally and the division of competence between the organs in particular.72 9.34  Treaties entered into by the UN are binding on the organization as a distinct legal person, and not also on the member states individually. The UN’s power to conclude treaties is to be distinguished from the long-standing practice of UN organs in acting (p. 340) as fora for the adoption of treaties, which, through a separate process of giving consent to be bound, become binding on states.73 When the organization has exercised a mandate to administer territory, however, it has entered into agreements purporting to be on behalf of, and thereby operating with respect to, the territory directly.74

5.2  Power to bring international claims 9.35  The competence of the UN to bring international claims was determined to exist in the Reparation Advisory Opinion concerning the killing of UN mediator Count Folke Bernadotte in Israel.75 The general legal framework for bringing such claims was agreed

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after this decision. Under the procedure proposed by the Secretary-General and authorized by the General Assembly, the Secretary-General would: (a) determine whether the case appeared likely to involve the responsibilities of a State; (b) consult with the Government of the State of which the victim was a national, in order to determine whether the Government had any objection to the presentation of claims by the United Nations or desired to join in submission; and (c) negotiate with the State responsible for the injury, for the purpose of determining the facts of the case and the amount of reparations, if any. The Secretary-General would be given discretion in negotiating a settlement of the claims both with respect to the elements of damage included in any claim, and with respect to the amount of reparation to be requested or eventually accepted; but he would not be authorized to advance any claim for exemplary damages. If the claim could not be settled by negotiation, the Secretary-General might submit any differences of opinion to arbitration by a tribunal of three members, one of whom was to be named by him.76 9.36  Numerous claims have been made under this procedure.77

(p. 341) 6.  Substantive content of powers—in domestic law 6.1  International law basis for municipal law capacities 9.37  Article 104 of the UN Charter states that the organization shall ‘enjoy in the territory of its members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes’.78 9.38  This is the foundation for the UN to possess both municipal legal personality and certain municipal law capacities if necessary.79 Some of the core necessary capacities are elaborated and their provision rendered obligatory for contracting parties in Article 1 of the 1946 Convention on the Privileges and Immunities of the United Nations, which stipulates that the UN shall have the capacity: (a)  to contract; (b)  to acquire and dispose of immovable and movable property; (c)  to institute legal proceedings.

80

9.39  Article 104 of the UN Charter refers to legal capacity in the territory of member states only, and the Charter is a treaty for UN member states only.81 9.40  However, the foregoing provisions of the General Convention were made applicable in (what were then) non-members Japan and Korea by special agreements concluded between the Secretary-General and the two states.82 Similarly, before acceding to the (p. 342) UN Convention, Switzerland accepted, in general terms, through agreements, that the Swiss Federal Council would recognize the legal capacity of the UN.83 More broadly, for other states (whether members or non-members) acting as host countries, special agreements have been made that included provisions concerned with the conferral of domestic law capacities, reproducing the provision in Article 104 of the UN Charter.84 These were either negotiated by the Secretary-General and approved by the General Assembly, or concluded by the Secretary-General in his capacity as the chief administrative officer of the organization.85

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9.41  The three capacities outlined in the 1946 Convention are not exhaustive in terms of what is permitted as a matter of Article 104. The test of necessity in the latter (p. 343) instrument enables further capacities, both of a general nature and specific to a particular activity, municipal law presence, and subsidiary organ/entity competence. For example, the UN Legal Counsel concluded that a capacity to receive bequests could be inferred from Article 104 of the UN Charter.86 9.42  As new subsidiary organs were created, agreements were made with the host states within which they were to operate, conferring domestic law capacities, supplementing the general position already applicable to the UN in the states concerned.87 Sometimes the international legal basis for a subsidiary organ to be entitled to exercise municipal law capacities has been rooted in the overall UN entitlement of this nature in the UN Charter and 1946 Convention, without a special arrangement also being adopted for the subsidiary organ in question.88 (p. 344) 9.43  An obligation to confer equivalent domestic law capacities has also been included in the agreements establishing some of the distinct international entities within the UN family.89 9.44  As with the conferral of legal personality, the actual enjoyment of these domestic law capacities within the municipal legal orders of states has depended in each case on particularities of the legal system involved, as well as on the nature and extent of the UN presence there.90 An example of the differential significance of municipal law arrangements would be whether the law in a particular state enables the (p. 345) property of a subsidiary organ or entity to be registered in its particular name or in the name of the UN.91 9.45  Especially broad domestic capacities have been exercised in the unusual instances where the United Nations was granted the competence to administer territory, in some cases in areas not forming part of the territory of a state.92

6.2  Competence to contract 9.46  Recognition of the competence to contract93 has been given both by state organs on which the organization has needed to rely in connection with the performance of its contracts and by official bodies, private firms, and individuals with whom the UN has wished to enter into contractual relations.94 9.47  The power to contract is exercised ‘both through officials of the Secretariat acting on behalf of the Secretary-General, in his capacity as chief administrative officer of the (p. 346) Organization, and through subsidiary bodies established for particular purposes by one of the principal organs’.95 Secretariat officials sometimes act as executing agency for contracts entered into by subsidiary organs.96 Subsidiary organs that enter into contracts in their own name do so on the basis of the competence to contract vested in the organization as a whole.97 A subsidiary organ will usually be expected to have been vested with its own competence to contract by its parent organ.98 9.48  States have taken domestic measures necessary to provide the UN with unlimited contractual capacities, placing the organization in a position similar to other legal entities recognized as enjoying the power to contract in municipal law.99 As with the UN’s treatymaking power, whereas the competence of the organization to enter into contracts within municipal law has been generally accepted, and may not be subject to particular limitations, the organization still has to act within the boundaries of its powers under the UN Charter in its exercise of this competence, for example with respect to the substantive content of contracts entered into as far as the rights and obligations they vest in the organization.100 Equally, the particular UN entity exercising the contractual prerogative has to stay within the boundaries of its authority under the Charter, whether as a matter of its general position—eg the competences (p. 347) given to subsidiary organs—or in view of a particular

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mandate operating with respect to the situation—eg a mandate conferred upon a particular peace operation.101

6.3  Competence to acquire and dispose of property 9.49  The right to acquire and dispose of immovable/real property has been granted to and used by the UN in many states, UN members and non-members alike, notably in the context of the acquisition of such property for UN facilities, including at Headquarters, although at least one state, Mexico, denied the UN the right to acquire immovable property in its municipal legal system.102 9.50  Similarly, the capacity of the UN to acquire and dispose of movable property has been fully recognized, by both member states (whether or not they have become parties to the General Convention) and non-member states.103 9.51  The Secretariat observed that the problems that have arisen in the context of capacity with respect to property generally have been the result of the unique status of the United Nations, which has prevented its assimilation under national law to the position of either that of a Government or to that of a private individual or corporation. The conditions under which the United Nations has acquired property have accordingly usually been determined at several levels; under the terms of an international agreement with the national Government; (p. 348) under the terms of supplementary legislation adopted by the local authorities; and/or under the terms of a private contract. The number of parties and instruments involved has in itself therefore sometimes been conducive to administrative difficulties.104 9.52  There is further complexity at the level of international law, since the international legal authority for the UN in this regard is derived from the general provisions of Article 104, the 1946 Convention, as well as any special agreement. As with the UN’s powers generally, this authority depends for its lawful exercise on whether the UN entity invoking the organization’s right is itself acting within its own competence, both generally and as concerns any specific provision made by a competent body in relation to the property matter at issue. 9.53  The range of different matters that collectively determine the legality of the UN’s acquisition of property is illustrated in the UN’s acquisition of its Headquarters Area in New York. The UN Office of Legal Affairs, in a letter to a New York law firm during the process through which the UN acquired the New York site, invoked the following as authority for the purchase: Article 104 of the UN Charter; the general authority granted to the Secretary-General under Article 97 to be ‘the chief administrative officer of the Organization’; the specific authority given by the General Assembly to the SecretaryGeneral to purchase land for use as a headquarters site in a resolution adopted at the second part of its 1st session on 14 December 1946; a provision from the US federal International Organizations Immunity Act; and a provision of New York state law.105 9.54  A variant on this arrangement is where the acquisition of property is connected to a particular role being performed within a state, whether the conduct of peace operations or the provision of public information and technical assistance. In these instances, the agreement with the host state can also itself sometimes provide, at least in outline terms, the legal basis for the acquisition and use of property generally, and/or particular arrangements concerned with the conditions of property use by the UN.106 These arrangements have varied considerably, from land leases based on the payment of rent— such as Jordan’s lease of land for refugee camps, paid up to a ceiling cost by UNRWA—to gratis leases—such as that granted to the UN by the Republic of Korea for the UN Memorial

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Cemetery in that country—or peppercorn rents—such as the lease of the Vienna International Centre from the Austrian Government for one schilling per annum.107 (p. 349) 9.55  In contrast to the special nature of the complexity of the arrangements necessary for the acquisition of property, ‘the problems encountered by the United Nations as owner or possessor have been broadly the same as those of any [ordinary] occupier’.108 9.56  According to the UN Office of Legal Affairs: It is not unusual that property, in particular real property, acquired by the United Nations for use by its subsidiary organs is registered in the name of the United Nations. Therefore, this alone should not be determinative of all questions concerning ownership of those assets. For purposes of the internal law of the United Nations, ownership is and should be determined according to the purpose for which the property was acquired, and the accounting of income and expenditure adopted by the Organization for the various beneficiary entities.109

6.4  Competence to institute legal proceedings 9.57  The capacity of the UN to institute legal proceedings in domestic courts has been widely recognized, although in practice it has been limited to the enforcement of commercial and non-commercial contracts.110 (p. 350) 9.58  This capacity has been affirmed for the organization generally as well as its subsidiary organs.111 It has been recognized municipally on the exclusive basis of Article 104 of the UN Charter by states that are not also parties to the 1946 Convention.112 Disputes about the capacity to institute municipal legal proceedings have tended to be concerned with the particular municipal legal basis through which this capacity was recognized, with this usually being a question that turns on the general rules in that legal system concerned with implementing international law.113 9.59  The UN’s municipal legal capacity has also led to claims being brought against it, although the practice here has been determined largely on the basis not of legal capacity itself, but rather whether the claims are barred on grounds of immunity.114 Significantly, in the context of UN operations in states, the organization has sought to ‘avoid or mitigate’ claims brought against it arising out of the conduct of such operations through special agreements with the states concerned, whereby in each case ‘the…State…agreed to hold harmless the United Nations in respect of any claims which may arise; the procedure used thus operated both at an international level and in terms of national law’.115

(p. 351) 7.  Consequences of ultra vires acts 7.1  Which acts are ultra vires? 9.60  Where the organization takes a decision or engages in activity that is not within its express, implied, or inherent powers, such decision or activity is one the organization is not legally competent to take. However, because of the very broad purposes of the UN and the broad notion of implied powers that has been developed with regard to the organization,116 it will not often be the case that an act is ultra vires the organization. Nevertheless, an act may still be ultra vires where it is contrary to the purposes of the UN (for example, the purpose regarding the promotion and protection of human rights),117 or contravenes jus cogens norms.118 Or an act may be beyond the powers of a particular organ of the organization because the matter in question is not committed to that organ by the UN Charter, or, alternatively, because though the issue is within the competence of that organ, the organ does not have the power to take the particular action it has sought to take with

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regard to that issue.119 Where it is (p. 352) asserted that an act of the UN is beyond its powers (or ultra vires), several questions may arise as to the legal effect of such acts.120

7.2  Responsibility for ultra vires acts 9.61  Where an act is ultra vires the organization, it may also amount to a breach of an obligation by the organization, and thus generate responsibility for the organization under international law.121 In this regard, it is important to recall that the ultra vires act of an organ or agent of the organization will still be attributable to the organization where the organ or agent ‘acts in an official capacity and within the overall functions of that organization’.122 In addition to engaging the responsibility of the organization, ultra vires acts of an organ can create obligations binding on the organization, especially in relation to third parties, particularly where the conduct in question is within the powers of the organization as a whole but simply performed by the wrong organ.123

7.3  The validity and legal effect of ultra vires acts 9.62  It may be asked whether ultra vires acts, in particular ultra vires decisions, will be valid and have legal effect as valid acts or decisions, despite their illegal foundation. Two alternative positions may be taken in response to this question. It could be argued (p. 353) that acts of the UN, even when ultra vires, are valid until they are challenged and set aside. Or alternatively, the view might be taken that such ultra vires decisions amount to legal nullities, and therefore are invalid and without any legal effect ab initio. Whichever view is taken, the question arises how it is to be determined whether a particular decision is ultra vires or not. There is, after all, no general procedure by which the legality of decisions of the UN or its organs can be subjected to judicial scrutiny, though courts may incidentally engage in such review.124 There might be the possibility that in the case of certain organs, particularly subsidiary organs, an ultra vires act may be annulled by another organ with competence to do so, for example the principal organ that created a subsidiary organ.125 9.63  The dearth of established procedures for reviewing the legality, under international law, of decisions of international organizations makes the view that illegal decisions are only voidable problematic.126 In effect, it would mean that illegal decisions stand unless, by accident, there is the possibility of review by another body competent to do so, or unless the body that took the decision decided to reverse it. This position is clearly unsatisfactory, as it would mean that a minority would have no recourse against ultra vires decisions taken by the majority. This view would also mean that the organization, and in particular organs whose decisions are not subject to approval by other organs, would be able to extend the supposedly limited powers conferred on them. 9.64  In the light of the problems with the alternative, the better view is that ultra vires decisions—but not those merely suffering some minor procedural defect—are a nullity. As Judge Morelli said in the Certain Expenses case: In the case of acts of international organizations…there is nothing comparable to the remedies existing in domestic law in connection with administrative acts. The consequence of this is that there is no possibility of applying the concept of voidability to the acts of the United Nations. If an act of an organ of the United Nations had to be (p. 354) considered as an invalid act, such invalidity could constitute only the absolute nullity of the act. In other words, there are only two alternatives for the acts of the Organization: either the act is fully valid, or it is an absolute nullity, because absolute nullity is the only form in which invalidity of an act of the Organization can occur.127

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9.65  On this view, where a decision is ultra vires, a state is free to depart from it.128 However, a state that acts in this manner acts at its own risk, since the decision might later be found to be lawful, and the non-compliant state would have been acting unlawfully in a situation where it has an obligation to comply with the decision which it was treating as ultra vires.129 9.66  It must be noted that given the limited opportunities for judicial or other forms of review of decisions of the UN, the principle that ultra vires acts are void ab initio might undermine the certainty of decisions of international organizations and permit states to seek to evade their treaty obligations. However, this danger is reduced by the presumption, already referred to, that acts of international organizations directed at the fulfilment of the purposes of the organization are valid, meaning that the burden of proof is on the state arguing otherwise. Additionally, mere procedural defects do not render decisions invalid. The combination of these principles is sufficient to ensure stability. 9.67  The principle that acts that are ultra vires the organization are void should also not be seen as undermining the possibility that members of the organization can, through collective acquiescence, confer validity on a decision or action that would otherwise be valid.130 The notion that acquiescence to, or indeed positive approval of, an act may contribute to its being seen as lawful is nothing more than application of the principle that subsequent practice of the parties plays an important role in the interpretation of a treaty,131 and is particularly significant in interpreting the constituent instruments of international organizations.132 Thus where the practice of members shows that they consider a particular act to be within the powers of the organization, this must be taken into account in determining whether it is indeed so. Where the practice is such as to establish the agreement of the parties on the point in question, there would be strong reason to defer to it. However, problems will arise where the practice is not universal in the sense of establishing the agreement of the parties on (p. 355) the point in question.133 In this case, other principles of interpretation may well lead to the result that the act in question is contrary to the UN Charter even though the majority of the organization do not take position.

7.4  Judicial review of the legality of acts of the organization 9.68  Despite the lack of a prescribed procedure for ‘judicial review’ of decisions of the organs of the UN, issues of whether an organ has exceeded its powers may be raised in ICJ Advisory Opinions requested by the organ or organization,134 or may arise incidentally in a contentious case between states.135 9.69  In addition to ‘incidental’ judicial review by international tribunals of the legality of acts of international organizations, there is the possibility that national and regional courts may also be called upon to decide, indirectly, on the legality of such acts.136 This may happen when challenges occur in domestic legal systems to national measures implementing the decision of an international organization. There have been several cases where national courts and regional courts, like the European Court of Justice (p. 356) (ECJ)137 or the European Court of Human Rights (ECtHR),138 have been asked to invalidate, or find unlawful, national measures implementing decisions of the UN Security Council to impose sanctions under its powers under Chapter VII of the UN Charter.139 9.70  In some cases, the national measure is challenged based on a lack of compliance with domestic law. However, in other cases the challenge is based on the failure of the challenged measure (the sanctions) to comply with international law standards, particularly those established by international human rights law. In these cases, the decision of the court is, in strict terms, about the legality of the domestic implementing act. However, since those acts are based on, and even mirror, decisions of the UN Security Council, the decision, in reality, constitutes a review of the Security Council’s decision. The most extreme example of a tribunal engaging in such review is the decision of the Grand From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Chamber of the ECJ in Kadi II, that the imposition of targeted sanctions against a person alleged to have links with Al Qaeda was inconsistent with his fundamental rights, as there was insufficient evidence of his involvement with Al Qaeda.140 The ECtHR has not, as yet, declared the actions of the Security Council to be contrary to the provisions of the European Convention on Human Rights (ECHR) or indeed the UN Charter. However, it has stated that since the UN Charter includes the achievement of international cooperation in promoting and encouraging respect for human rights and fundamental freedoms among its purposes, the Court will presume that the Council does not intend to violate fundamental principles of human rights when interpreting resolutions of the Council that impose obligations on UN member states.141 Although not quite a review of the Council’s decisions, the Court has shown a willingness to disregard and not apply those aspects of a Security Council decision that do not conform to fundamental rights.

Footnotes: 1

  See ch 11, ‘The Legal Personality of the United Nations’, section 2, ‘Consequences of legal personality’. 2

  See Akande, ‘International Organizations’ in International Law (4th edn, Evans (ed), 2014), 248, at 256 and 258, for the argument that consequences of conferment of legal personality on international organizations include the competence to bring claims in international law and to conclude agreements subject to the law of treaties. On the notion that the possession of international legal personality gives rise to certain ‘inherent’ powers, see section 2.2, ‘Broad doctrine and expansion of powers’. 3

  As the International Court of Justice (ICJ) stated in the Reparation Advisory Opinion, ‘[t]he subjects of law in any legal system are not necessarily identical in nature or in the extent of their rights, and their nature depends upon the needs of the community’ (Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) ICJ Rep 1949, p 178). In the Nuclear Weapons Advisory Opinion, the ICJ stated that ‘international organizations…do not, unlike States, possess a general competence’ (Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) ICJ Rep 1996, p 76, at 78, para 5). See also White, The Law of International Organizations (2nd edn, 2005), 28 and sources cited therein. 4

  See ch 11, ‘The Legal Personality of the United Nations’, section 2, ‘Consequences of legal personality’. 5

  See White, n 3, 89.

6

  In the Nuclear Weapons Advisory Opinion, the ICJ stated that ‘[i]nternational organizations are governed by the “principle of speciality”, that is to say, they are invested by the States which create them with powers’ (Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) ICJ Rep 1996, p 76, at 78, para 5). See also Klabbers, An Introduction to International Organizations Law (2015), 53, 54. This limitation in terms of powers, and the possibility of variations in the range of powers vested in different international organizations, is sometimes misleadingly described in terms of ‘degrees’ of international legal personality. See ch 11, ‘The Legal Personality of the United Nations’, section 2, ‘Consequences of legal personality’. In considering the legality of UN action, apart from the question whether the organization has acted within the powers conferred on it by its constituent instrument, or other relevant documents, there is also the separate issue of conformity to the rules of general international law, and the extent to which these rules are applicable to the UN. See ch 12,

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‘The United Nations and International Law’, section 4, ‘The application of international law to the UN in particular treaties’. 7

  See Prosecutor v Tadić, IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995). In that case, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY), which had been created by a Security Council Resolution adopted under Chapter VII of the UN Charter, had to determine whether it had been lawfully created. Answering this question required a decision as to whether the Council had the authority under the Charter to create a criminal tribunal. Considering that the Council’s powers under Chapter VII can only be exercised if the situation at issue constitutes a ‘threat to the peace, breach of the peace, or act of aggression’ under Art 39 of the Charter, the Appeals Chamber stated that the Security Council ‘exercises a very wide discretion under the Article. But this does not mean that its powers are unlimited. The Security Council is an organ of an international organisation, established by a treaty which serves as a constitutional framework for that organisation. The Security Council is thus subjected to certain constitutional limitations, however broad its powers under the constitution may be’ (ibid, para 28). See ch 31, ‘Criminal Tribunals Established by, or in Relationship with, the UN’, section 1, ‘International Criminal Tribunal for the Former Yugoslavia’; also section 3.1 of this chapter, ‘Purposes and principles of the organization’. 8

  An example of this limited competence in the context of specialized agencies is the Food and Agriculture Organization of the United Nations (FAO) Constitution, 16 October 1945, available at http://www.fao.org/DOCREP/003/X8700e/x8700e01.htm, Art XVI of which states: ‘The Organization shall have the capacity of a legal person to perform any legal act appropriate to its purposes which is not beyond the powers granted to it by this Constitution.’ A further example in the context of specialized agencies would be the limited competence of the World Health Organization (WHO), a specialized agency whose overall objective under Art 1 of its Constitution is ‘the attainment by all peoples of the highest possible level of health’ (Constitution of the World Health Organization (1946), 1948 UNTS 185). Both the Constitution and the 1948 Agreement between the UN and the WHO (Agreement between the United Nations and the World Health Organization (approved by GA Res 124 (II) (1947), 1948 UNTS 193) provide that the WHO may request an Advisory Opinion of the ICJ on legal questions arising within the ‘competence of the Organization’ (Constitution, Art 76) and ‘scope of its competence’ (1948 Agreement, Art X). The extent of this competence became an issue when the WHO requested an Advisory Opinion of the ICJ concerning the legality of the use of nuclear weapons by states in the light of the health and environmental effects. See Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) ICJ Rep 1996, p 66. The Court had to determine whether the subject matter of the request fell within the WHO’s ‘competence’, or, in a form of words the Court determined not to be materially different for the issue at hand, the ‘scope’ of the WHO’s ‘activities’ as far as the provisions on the advisory jurisdiction are concerned in Art 96(2) of the UN Charter. The ICJ determined that the question put did not fall within the powers, whether express or implied, of the WHO. An example of this limited competence in the context of other separate international organizations within the UN family would be the International Seabed Authority, which under the United Nations Convention on the Law of the Sea (UNCLOS) is to enjoy ‘such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes’. See UN Convention on the Law of the Sea, 1994 UNTS 396, Art 176. Also Akande, ‘The Competence of International Organizations and the Advisory Jurisdiction of the International Court of Justice’ (1998) 9 EJIL 437.

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9

  See Klabbers, n 6, 53–69; White, n 3, 87–9. For a discussion of the shortcomings of the functionalist approach to the powers of international organizations, see Klabbers, ‘The Transformation of International Organizations Law’ (2015) 26 EJIL 9. However, for the view that international organizations have the same capacities as states except when such capacities are expressly prohibited by the constituent instruments or impossible due to practical incapacity, see Seyersted, Objective International Personality of Intergovernmental Organizations: Do their Capacities Really Depend upon the Conventions Establishing Them? (1963). See also, on the distinction between ‘implied’ and ‘inherent’ powers, section 2.2, ‘Broad doctrine and expansion of powers’. 10

  The notion of express powers was encapsulated in the holding of the Permanent Court of International Justice (PCIJ) on the powers of the European Commission of the Danube, when it stated that ‘As the European Commission is not a State but an international institution with a special purpose, it only has the functions bestowed upon it by the Definitive Statute with a view to the fulfillment of that purpose, but it has power to exercise these functions to their full extent, in so far as the Statute does not impose restrictions upon it.’ See Jurisdiction of the European Commission of the Danube between Galatz and Braila (Advisory Opinion), PCIJ, Series B, No 14, 1926, p 64. 11

  See Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) ICJ Rep 1949, p 174, at 182, where it was stated that ‘Under international law, an Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.’ 12

  ibid.

13

  For example, under Art 41 of the UN Charter, ‘The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.’ In the aforementioned Tadić decision (n 7), the Appeals Chamber of the ICTY held that the non-exhaustive nature of the list of ‘measures’ here left open the existence of additional measures not expressly stipulated, and that one such measure included the creation of an international criminal tribunal. See Prosecutor v Tadić, n 7, paras 15, 35–6. See ch 31, ‘Criminal Tribunals Established by, or in Relationship with, the UN’, section 1, ‘International Criminal Tribunal for the Former Yugoslavia’, particularly section 1.1, ‘Establishment’. 14

  For example, in the Effects of Awards Advisory Opinion of the ICJ, the Court had to determine whether the provision in Art 101(1) of the UN Charter, that staff are to be appointed ‘under regulations established by the General Assembly’, was sufficient as a basis for the General Assembly to create the United Nations Administrative Tribunal (UNAT), which would enforce employment protections accorded to staff, inter alia through a power to issue awards that would be binding on the General Assembly. The Court held that the express provision of Art 101 implied a power to ‘regulate staff relations’, and that this power itself implied a competence to ‘establish a tribunal to do justice between the Organization and its staff members’. Effects of Awards of Compensation Made by the United National Administrative Tribunal (Second Phase) (Advisory Opinion) ICJ Rep 1954, p 47; 21 ILR 310, para 77.

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15

  The classical exposition of the inherent powers doctrine is to be found in Seyersted, n 9. For general comparisons of the implied or inherent powers doctrines, see Klabbers, n 6, 64– 7; White, n 3, 86; and Bowett, The Law of International Institutions (1982), 337–8. 16

  In the Reparation for Injuries Advisory Opinion, the Court had to determine whether the UN had the competence to bring a claim against a state concerning the treatment of one of its staff members. No such competence was expressly contained in the UN Charter. The Court concluded that ‘the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties’ (Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) ICJ Rep 1949, p 174, at 182–3). According to Nigel White, the power to bring a claim ‘appeared to be derived … from the general nature and purposes of the UN as a body, aimed at securing international peace and security, an aim requiring the extensive use of personnel in dangerous situations’ (White, n 3, 85). 17

  See the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986) (VCLT), preambular para 11. Although every international organization has the competence, in principle, to enter into agreements that will be subject to the law of treaties (unless this is expressly denied to it), whether an organization can enter into a particular treaty or type of treaty will depend on its express or implied powers. However, it would appear to be the case that every international organization at least has the competence to enter into agreements with its host state for the purpose of setting out the terms of that relationship, and into treaties for the purpose of settling claims by and against the organization. See Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) ICJ Rep 1949, p 174, at 181. 18

  See Certain Expenses of the United Nations (Advisory Opinion) ICJ Rep 1962, p 151, at 168, where it was stated that ‘When the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization.’ 19

  See Lauterpacht, ‘The Development of the Law of International Organizations by the Decisions of International Tribunals’ (1976) 53 RCADI 430–2. 20

  See the wording of the text in the Certain Expenses case, n 18.

21

  The UN Charter has been amended only four times, in each case the reform relating to the increases in membership of the organization rather than to the nature and extent of its powers. See ch 1, ‘Introduction’, section 4, ‘The Charter of the United Nations’. 22

  See ch 1, ‘Introduction’, section 4, ‘The Charter of the United Nations’, and ch 12, ‘The United Nations and International Law’, section 5, ‘The obligation of the UN to comply with international law’. 23

  When the General Assembly terminated South Africa’s League of Nations Mandate authority over what was then called South West Africa, and asserted equivalent competence over the territory, which it renamed Namibia, itself, the question arose as to whether the Assembly enjoyed the power to take such action, given that no express general competence in relation to the Mandate arrangements had been given to the UN. The UN Trusteeship System was open for territories held under a Mandate to be placed under it, but this was not an automatic process, requiring a specific trusteeship agreement (see UN Charter, Art 77). In Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (Advisory Opinion) ICJ Rep 1971, p 16, the Court held that ‘the United Nations as a successor to the League, acting through its competent organs, must be seen above all as the supervisory institution,

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competent to pronounce, in that capacity, on the conduct of the mandatory with respect to its international obligation, and competent to act accordingly’. Although the UN was not, in a general sense, the legal successor to the League of Nations, it was held that in the light of the reference to the Mandate arrangements in the Charter, there was an implied power in the new UN to take on those functions in which the League had engaged. Within the general supervisory function was contained a competence to terminate the arrangement itself ‘in the case of a deliberate and persistent violation of obligations which destroys the very object and purpose of that [Mandatory] relationship’(ibid). 24

  See ch 27, ‘Peacekeeping and Other Peace Operations’.

25

  See ch 31, ‘Criminal Tribunals Established by, or in Relationship with, the UN’.

26

  See ch 27, ‘Peacekeeping and Other Peace Operations’ and ch 4, ‘The Trusteeship Council’. The performance by the UN of the role of administering authority for Trusteeship Territories was provided for in Art 81 of the UN Charter but never exercised in practice. See also ch 4, ‘The Trusteeship Council’, section 6.3.2, on the statutes of the Trusteeship Council for South West Africa (Namibia). 27

  See ch 3, ‘The Security Council’, section 8.2 on the Security Council’s functions regarding peace and security; ch 26, ‘Keeping the Peace’, section 3 on the role of Security Council in keeping the peace; ch 12, ‘The United Nations and International Law’, section 5, ‘The obligation of the UN to comply with international law’, and section 6, ‘The effect of the UN Charter on international law: Article 103’. 28

  On the meaning of Art 39, see ch 3, ‘The Security Council’, particularly section 8.2, ‘Peace and security’; and ch 26, ‘Keeping the Peace’, section 3 on the role of Security Council in keeping the peace. On the meaning of Art 2(7), see section 4, ‘Domestic jurisdiction limitation of Article 2(7)’. 29

  It was accepted that the permanent members could abstain as well as vote affirmatively for this requirement to be met. See ch 3 on the Security Council, particularly section 6, ‘Voting’. 30

  See Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, Arts 13 and 16. 31

  See also ch 2, ‘General Assembly’, section 7.3 on the General Assembly’s functions relating to the purposes of the UN. 32

  See ch 1, ‘Introduction’, section 1.4 on the interpretation of the UN, and ch 12, ‘The United Nations and International Law’, section 3 on the application of general international law to the UN. In particular, see Art 31 of the VCLT, which refers to interpretation of a treaty ‘in the light of its object and purpose’. When determining whether the cost of two peacekeeping missions—the United Nations Operation in the Congo (ONUC) and the United Nations Emergency Force (UNEF) relating to the Suez crisis—constituted ‘expenses of the organization’, which in turn depended on whether the authority to create peacekeeping missions existed as an implicit power vested in the UN (there is no express provision for peacekeeping in the UN Charter), the ICJ stated that expenses had to be tested ‘by their relationship to the purposes of the United Nations’ (Certain Expenses of the United Nations (Advisory Opinion) ICJ Rep 1962, p 151, at 167). 33

  ibid, at 168. This remark, although articulated as a general principle, was made in the particular context of apportioning expenses. When applying the test to expenses (see n 43), the Court stated that ‘if the Security Council, for example, adopts a resolution purportedly for the maintenance of international peace and security and if, in accordance with a mandate or authorization in such resolution, the Secretary-General incurs financial

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obligations, these amounts must be presumed to constitute “expenses of the Organization”’ (ibid, at 168–9). 34

  Thus, when Appeals Chamber of the ICTY stated in the Tadić decision that the Security Council is ‘subjected to certain constitutional limitations, however broad its powers under the constitution may be’, more general constraints than the scope of the powers themselves are being suggested. Prosecutor v Tadić, n 7, para 28. On the applicability of the general position of the UN to its organs and subsidiary organs, cf also the words of the Special Rapporteur on the Responsibility of International Organizations of the International Law Commission, Mr Giorgio Gaja, that ‘an act which is ultra vires for an organization is also ultra vires for any of its organs’ (International Law Commission, Second Report on responsibility of international organizations by Mr Giorgio Gaja, Special Rapporteur, UN Doc A/CN.4/541, 2 April 2004, para 52). 35

  Certain Expenses of the United Nations (Advisory Opinion) ICJ Rep 1962, p 151, at 168.

36

  ibid.

37

  Al-Jedda v UK, App no 27021/08 (ECHR, 7 July 2011), para 102. For commentary, see, eg, Sheeran and Bevilacqua, ‘The UN Security Council and Human Rights Obligations’ in Routledge Handbook of International Human Rights Law (eds Sheeran and Rodley, 2014), 388; Michaelsen, ‘Human Rights as Limits for the Security Council: A Matter of Substantive Law or Defining the Application of Proportionality?’ (2014) 19 JCSL 451; Messineo, ‘Things Could Only Get Better: Al-Jedda beyond Behrami’ (2012) 50 Military Law and the Law of War Review 321; Milanovic, ‘Al-Skeini and Al-Jedda in Strasbourg’ (2012) 23 EJIL 121. 38

  Al-Jedda v UK, App no 27021/08 (ECHR, 7 July 2011), para 102. See also Nada v Switzerland, App no 10593/08 (ECHR Grand Chamber, September 2012); Al-Dulimi and Montana Managment Inc v Switzerland, App no 5809/08 (ECHR Grand Chamber, July 2016). 39

  Al-Jedda v UK, App no 27021/08 (ECHR, 7 July 2011), para 102.

40

  ibid. According to the Court (ibid): ‘In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law.’ This does not mean that, a contrario, the use of such clear language would necessarily be sufficient for the Security Council’s authorization to a state to act contrary to the state’s international human rights obligations to be in conformity to the purposes and principles of the Charter. All it means is that the lack of such language creates a presumption regarding the Council’s intent arising out of the requirement to be in conformity. There is also a separate question of whether, even if somehow the Security Council has the power under the UN Charter to authorize/oblige a state to breach its obligations in international human rights law, this authorization/obligation would necessarily prevail over the human rights obligations at issue. See, in this regard, GA Res 67/1 (2012), entitled ‘Declaration of the High-Level Meeting of the General Assembly on the Rule of Law at the National and International Levels’, stating, in para 2, that ‘We recognize that the rule of law applies to all States equally, and to international organizations, including the United Nations and its principal organs, and that respect for and promotion of the rule of law and justice should guide all of their activities and accord predictability and legitimacy to their actions.’ See also ch 12, ‘The United Nations and International Law’, section 6, ‘The effect of the UN Charter on international law: Article 103’.

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41

  See ch 6, ‘Subsidiary Organs’, and ch 2, ‘General Assembly’, section 8.2 on the limitations on the General Assembly’s functions under Art 12(1) of the UN Charter. So an organ or a subsidiary organ can act ultra vires as a matter of its own particular powers, even if the action in question falls within the competence of the organization as a whole, and/or another UN body. 42

  See, eg, the division of responsibility between the Trusteeship Council, operating under the authority of the General Assembly, on the one hand, and the Security Council, on the other hand with respect to the carrying out of the functions of the UN with regard to trusteeship territories. The latter had responsibility for strategic areas, while the former dealt with areas not designated as strategic. See Chapter XII of the UN Charter, particularly, Arts 82–85. 43

  See ch 2, ‘General Assembly’, section 7.3.1 on the maintenance of international peace and security by the General Assembly, and section 8, ‘Limitations on the functioning of the General Assembly’; ch 3, ‘The Security Council’, section 8.2 on the Security Council’s responsibility regarding peace and security; and ch 26, ‘Keeping the Peace’. See UN Charter, Arts 11 and 12. This issue came up in the context of financing peacekeeping operations in the Certain Expenses Advisory Opinion, where the ICJ stated that ‘the provisions of the Charter which distribute functions and powers to the Security Council and to the General Assembly give no support to the view that such distribution excludes from the powers of the General Assembly the power to provide for the financing of measures designed to maintain international peace and security’ (Certain Expenses of the United Nations (Advisory Opinion) ICJ Rep 1962, p 151, at 164). See also Uniting for Peace Resolution, GA Res 377 A (V) (1950); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Rep (2004), p 136, at paras 24–31. 44

  For an example of a dispute concerning the manner in which a subsidiary organ was to operate, the Governing Council of the United Nations Environment Programme (UNEP), a subsidiary organ of the General Assembly, wanted to delegate its decision-making and approval powers to a subsidiary body. The Office of Legal Affairs concluded that since the tasks and functions of the Governing Council had been determined by the General Assembly, these could not be changed without approval by the Assembly. See [1991] UN Juridical YB 286. 45

  GA Res 48/141 (1993). See ch 22, ‘Promotion and Protection of Human Rights’.

46

  ‘Note to the High Commissioner for Human Rights, regarding the oversight role of the Human Rights Council over the work of the Office of the High Commissioner for Human Rights (OHCHR)’, 11 June 2007, [2007] UN Juridical YB 424, para 5. The Opinion concerned the succession of the HRC to the responsibilities previously discharged by the Commission on Human Rights referred to in the quotation. This is considered further below (see n 62). 47

  ibid, p 423.

48

  According to the Office for Legal Affairs (ibid, p 425, paras 7 and 8): ‘[T]he [previous Human Rights] Commission had never exercised specific responsibilities on the programme planning and budgeting of OHCHR, which are, in fact, part of the powers of the SecretaryGeneral, as the Chief Administrative Officer of the Organization, and of the General Assembly, as its “governing body”. In the absence of a specific General Assembly resolution conferring upon the HRC any such responsibilities, therefore, the decision by the HRC to assume such powers would be ultra vires and outside its mandate. In our view, attempts by members of the HRC to assume those responsibilities should be resisted.’

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49

  See GA Res 58/189 (2003); Abi-Saab, ‘Some Thoughts on the Principle of NonIntervention’ in International Law: Theory and Practice (ed Wellens, 1998), 225; ArangioRuiz, ‘Le domaine réservé—L’organisation internationale et le rapport entre droit international et droit interne: cours général de droit, international public’ (1990-VI) 225 Collected Courses of The Hague Academy of International Law 9; Ansari, ‘Some Reflections on the Concepts of Intervention, Domestic Jurisdiction and International Obligation’ (1995) 35 IJIL197; Bailey, ‘Intervention. Article 2.7 versus Articles 55–56’ (1994) 12 International Relations 1; Bernhard, ‘Domestic Jurisdiction of States and International Human Rights Organs’ (1986) 7 HRLJ 205; Cançado Trindade, ‘The Domestic Jurisdiction of States in the Practice of the United Nations and Regional Organisations’ (1976) 25 ICLQ 713; Conforti, The Law and Practice of the United Nations (2005), 143 et seq; Cohen and Deng, ‘Sovereignty as Responsibility: Building Block for R2’ in The Oxford Handbook of the Responsibility to Protect (eds Bellamy and Dunne, 2016), 74, at 76; Franck, Fairness in International Law and Institutions (1995), 85, 88; Gardam, ‘Legal Restraints on Security Council Military Enforcement Action’ (1996) 17 Mich JIL 285; Gill, ‘Legal and some Political Limitations on the Power of the UN Security Council to Exercise its Enforcement Powers under Chapter VII of the Charter’ (1995) 26 NYIL 33; Gilmour, ‘The Meaning of Intervene Within Article 2(7) of the United Nations Charter’ (1967) 16 ICLQ 330; Gordon, ‘United Nations Intervention in Internal Conflicts: Iraq, Somalia, and Beyond’ (1994) 15 Mich JIL 519; Gross, ‘Domestic Jurisdiction, Enforcement Measures and The Congo’ (1965) 1 Aust YBIL 137; Henkin, ‘Human Rights and Domestic Jurisdiction’ in Human Rights, International Law and the Helsinki Accord (ed Buergenthal, 1977), 21; Herndl, ‘Reflections on the Role, Functions and Procedures of the Security Council of the United Nations’ (1987) IV RCADI 289; Jones, ‘Domestic Jurisdiction—From the Covenant to the Charter’ (1951– 1952) 46 Illinois Law Review 219; Kasser, ‘The Legal Limits on the Use of International Force through United Nations Practice’ (1979) 35 Revue Egyptienne de Droit International 163, at 207; McGoldrick, ‘The Principle of Non-Intervention: Human Rights’ in The United Nations and the Principles of International Law (eds Lowe and Warbrick, 1994), 85; Miller, ‘Legal Aspects of the UN Action in the Congo’ (1961) 55 AJIL 1; Müllerson, ‘The International Protection of Human Rights and the Domestic Jirusdiction of States’ in Perestroika and International Law (eds Carty and Danlienko, 1990), 62; Nolte, ‘The Limits of the Security Council’s Powers and its Functions in the International Legal System: Some Reflections’ in The Role of International Law in International Politics (ed Byers, 2000), 315; Nolte, ‘Article 2(7)’ in The Charter of the United Nations: A Commentary (vol 1, 2nd edn, ed Simma, 2002), 148, 152; Preuss, ‘Article 2, Paragraph 7 of the Charter of the United Nations and Matters of Domestic Jurisdiction’ (1949-I) 74 RCADI 553; Rajan, United Nations and Domestic Jurisdiction (1958); Rajan, The Expanding Jurisdiction of the United Nations (1982); UN RP (1945–54) vol I, Art 2(7), pp 130–7; Satterthwaite, ‘Human Rights Monitoring, Elections Monitoring, and Electoral Assistance as Preventive Measures’ (1998) 30 NYU JILP 709; Verdross, ‘The Plea of Domestic Jurisdiction before an International Tribunal and a Political Organ of the United Nations’ (1968) 28 ZöV 33; Vijapur, ‘No Distant Millennium: The UN Human Rights Instruments and the Problem of Domestic Jurisdiction’ (1995) 35 IJIL 51; Watson, ‘Autointerpretation, Competence, and the Continuing Validity of Article 2(7) of the UN Charter’ (1977) 71 AJIL 61. 50

  Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Advisory Opinion) ICJ Rep 1950, p 71. 51

  UN Charter, Art 1(3). See White, n 3, 89–91. See also ch 22, ‘The Promotion and Protection of Human Rights’.

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52

  Quotation of the representative of France, in Proceedings of the United Nations Conference on International Organizations (UNCIO), III 386, cited in White, n 3, 89. 53

  See UN RP (1945–54) vol I, Art 2(7), pp 142–8; UN RP (1945–54) vol I, Art 2(7), p 142; UN RP Supp 3 (1959–66) vol I, Art 2(7), pp 116–17; UN RP Supp no 1 (1954–55) vol I, Art 2(7), 61–3; UN RP Supp no 8 (1989–94) vol 1, Art 2(7), pp 25–7. For a discussion of one area of Charter law that has been invoked in this context, the prohibition on the use of force in Art 2(4), see UN RP Supp 2 (1955–59) vol I, Art 2(1)–(5), p 72. For examples of debates where this restriction has been expressly referenced, see UN RP (1945–54) vol I, Art 11, pp 312–16 (regarding the Franco regime in Spain); UN RP (1945– 54) vol III, Art 55, p 36 (on employment levels in member states). For general discussion on what it means to ‘intervene’ in domestic jurisdiction, see UN RP (1945–54) vol I, Art 2(7), pp 137 et seq; UN RP Supp no 1 (1954–55) vol I, Art 2(7), pp 57–61; UN RP Supp no 2 (1955–59) vol I, Art 2(7), p 164; UN RP Supp no 8 (1989–94) vol 1, Art 2(7), p 23; UN RP Supp no 9 (1995–99), vol 1, Art 2(7), pp 17–18; UN RP Supp no 10 (2000–09) vol 1, Art 2(7), pp 22–3. For discussion in the United Nations Economic and Social Council (ECOSOC) in particular, see ch 5, ‘The Economic and Social Council’, section 7.3.1 on the human rights competences of ECOSOC, and ch 22, ‘Promotion and Protection of Human Rights’, section 1.1 on the promotion of human rights within the ECOSOC. UN RP (1945–54) vol III, pp 271– 2; Supp no 1 (1954–55) vol II, p 82; Supp no 2 (1955–59) vol III, p 97; Supp no 3 (1959–66) vol II, p 394; Supp no 5 (1970–78) vol III, pp 154–5; Supp no 6 (1979–84) vol IV, p 155. On the concept of a matter being of ‘international concern’, rendering it no longer ‘essentially’ within the exclusive domain of states, see section 4.3, ‘Matters subject to Security Council determinations’. 54

  The League of Nations Covenant, Art 15, para 8, contained a somewhat equivalent domestic limitation clause, operating specifically in relation to actions by the League of Nations Council in the field of dispute settlement, which, unlike Art 2(7) of the UN Charter, expressly referenced international law as the basis for determining the scope of states’ reserved domain: ‘If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement.’ The PCIJ held that the ‘words “solely within the domestic jurisdiction” … contemplate certain matters which, though they may very closely concern the interests of more than one State, are not, in principle, regulated by international law. As regards such matters, each State is sole judge.’ Nationality Decrees in Tunisia and Morocco (Advisory Opinion) PCIJ, Series B, No 4, 1923, p 7, at 23–4. For discussions and affirmations of the applicability of an international law standard to the test in Art 2(7), see UN RP (1945–54) vol I, Art 2(7), pp 137–42; UN RP Supp no 1 (1954–55) vol I, Art 2(7), pp 61–3; UN RP Supp no 2 (1955–59) vol I, Art 2(7), pp 164–70; UN RP Supp no 7 (1985–88) vol I, Art 2(7), pp 16–17; UN RP Supp no 8 (1989–94) vol I, Art 2(7), pp 24–5; UN RP Supp no 9 (1995–99) vol I, Art 2(7), pp 18–19; UN RP Supp no 10 (2000–09) vol I, Art 2(7), pp 24–7. For other examples of the invocation of this standard, see the sources cited in n 76 on human rights, and UN RP Supp 8 (1989–94) vol I, Art 2(7), p 25, on treaty law in the field of nuclear non-proliferation. 55

  As the PCIJ stated in relation to the somewhat equivalent provision in the League of Nations Covenant (on which, see n 70): ‘The question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations.’ Nationality Decrees in Tunisia and Morocco (Advisory Opinion) PCIJ, Series B, No 4, 1923, p 7, at 24. See also Conforti, n 49, 133.

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56

  See n 68.

57

  This is especially the case as regards instances where the jurisdiction restriction of Art 2(7) has been clearly applied to bar action. In one instance, the Secretary General invoked the restriction in Art 2(7) as a basis for refusing a request from Panama for the UN to monitor elections in the state, absent authorization from a deliberative organ to engage in such an activity ([1984] UN Juridical YB 178–9). Here, the issue was not, as is usually the case, an objection by a state whose internal situation is being addressed by the UN— Panama had requested UN assistance—but rather that acceding to the request would ‘set a precedent for United Nations involvement in internal elections or plebiscites’ that ‘would be far-reaching’ (ibid). The limitation in Art 2(7) was also being invoked as an internal, division of labour consideration only—permission would be needed from a deliberative organ first— rather than as an overall bar to action by the organization. In another case, the Office of Legal Affairs concluded that it would be advisable for the UN not to engage in radio broadcasting to a state from international waters or a third state without authorization to do so by the Security Council, ‘in view of the possibility that the broadcasts in question might be alleged by some parties to be contrary to the principle of non-interference in matters essentially within the domestic jurisdiction of a State’ ([1994] UN Juridical YB 147). It is significant that the advice is framed in terms of avoiding an accusation of acting contrary to Art 2(7), rather than a clear statement that the provision would be breached. The reference to the Security Council was made because of the Security Council exception stipulated in Art 2(7). The exception is addressed in section 4.3, ‘Matters subject to Security Council determinations’. 58

  For other commentary on the practice, see, eg, Conforti, n 49, 140 et seq; Ahmed, ‘The Domestic Jurisdiction Clause in the United Nations Charter: A Historical View’ (2006) 10 Singapore YIL 175, 184–5. 59

  See the sources cited in n 63, and UN RP Supp no 2 (1955–59) vol I, Art 2(7), pp 170 et seq; UN RP Supp no 3 (1959–66) vol I, Art 10, p 219; Consideration of principles of international law concerning friendly relations and co-operation among states in accordance with the Charter of the United Nations, Report of the Sixth Committee of the International Law Commission, 13 December 1963, [1963] UN Juridical YB, 94. This builds on the references to human rights generally, and self-determination in particular, in the Charter (see ch 22, ‘Promotion and Protection of Human Rights’). Before the emergence of general international treaty law in this area, beginning with the two global human rights covenants, the more limited coverage in the UN Charter was utilized exclusively. On the relevance of the Charter provisions on self-determination, including in the period before the adoption of the Covenants, see, eg, UN RP Supp no 1 (1954–55) vol I, Art 2(7), p 63; UN RP Supp no 2 (1955–59) vol I, Art 2(7), pp 171–7; UN RP Supp no 7 (1985–88) vol I, Art 2(7), pp 17–18. On the relevance of these provisions, and the other Charter provisions on human rights, see UN RP (1945–54) vol I, Art 2(7), pp 144–8; UN RP Supp no 1 (1954–55) vol I, Art 2(7), p 63; UN RP Supp no 2 (1955–59) vol I, Art 2(7), p 170; UN RP Supp no 3 (1959–66) vol I, Art 2(7), pp 116–17; UN RP Supp no 8 (1989–94) vol I, Art 2(7), pp 25–7; UN RP Supp no 9 (1995–99) vol I, Art 2(7), p 20. Both Charter provisions and broader human rights treaty law in this area were invoked in the context of Art 2(7) after the adoption of the two global human rights covenants. For example, in a debate about the relevance of the domestic jurisdiction restriction to the creation of a UN High Commissioner for Human Rights (on which, see nn 56 and 57), it was argued that ‘Member States, through their acceptance of Articles 55 and 56 of the Charter, the Universal Declaration of Human Rights and the International Covenants on Human Rights, had accepted that abuses of human rights, wherever they might occur, were the

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legitimate subject of international concern.’ UN RP Supp no 5 (1970–78) vol III, Art 56, p 103. For examples of practice in particular places, see n 76 and GA Res 39 (1946) (on the Government in Spain); the practice of the General Assembly concerning the human rights situation within and the realization of self-determination for the people of Trusteeship and Non-Self-Governing Territories, discussed in Doehring, ‘Self-Determination’ in Simma (ed), n 49, 47 et seq and, in relation to Trusteeship Territories, Rauschning, ‘International Trusteeship System’ in Simma (ed), n 49, 1099 et seq, and see also UN RP (1945–54) vol I, Art 2(7), pp 146–8 and UN RP Supp no 1 (1954–55) vol I, Art 2(7), p 63; the practice of the General Assembly with respect to Apartheid in South Africa, on which see White, n 3, 95–6 and sources cited therein; GA Res 46/7 (1991) and GA Res 45/2 (1990) (on Haiti); GA Res 43/157 (1988), 44/146 and 44/147; (1989), 48/131; (1993), 49/190; (1994), 50/133; (1995), 50/185; (1995), 51/31; (1996), 52/18; (1997), 53/31; (1998), 58/180; (2003), 58/189; (2003), 52/129; (1997) (on elections and democracy). 60

  In an early debate on this issue in the General Assembly, ‘there were representatives who, while agreeing that violations of human rights and fundamental freedoms fell in principle within domestic jurisdiction, considered that these violations became matters of international concern when they assumed proportions capable of affecting relations between States’. UN RP Supp no 1 (1954–55) vol I, Art 2(7), p 62. An early example of the application in practice of focusing on the broader inter-state dimensions of a human rights question so as to exclude the application of Art 2(7) is the decision by the General Assembly to endorse the report of a Committee established to analyse and adopt conclusions in relation to the Hungarian uprising, and Soviet response, in 1956. The report stated: ‘In the light of the extent of foreign intervention, consideration of the Hungarian question by the United Nations was legally proper and, moreover, it was requested by a legal Government of Hungary. In the matter of human rights, Hungary has accepted specific international obligations in the Treaty of Peace. Accordingly, the Committee does not regard objections based on paragraph 7 of Article 2 of the Charter as having validity in the present case. A massive armed intervention by one Power on the territory of another, with the avowed intention of interfering with the internal affairs of the country must, by the Soviets’ own definition of aggression, be a matter of international concern.’ Quoted in UN RP Supp no 2 (1955–59) vol I, Art 2(7), p 151, para 85. 61

  See the discussion in Consideration of principles of international law concerning friendly relations and co-operation among states in accordance with the Charter of the United Nations, n 59, para 84 et seq. As the Office of Legal Affairs observed: ‘…a distinction should be made between the sovereignty of States in their mutual relations and the limited sovereignty of States in their relations with the United Nations’ [1964] UN Juridical YB 147. 62

  See UN RP (1945–54) vol I, Art 2(7), pp 151–2.

63

  White, n 3, 90–1; Conforti, n 49, 145 et seq; Tsagourias, ‘Security Council Legislation, Article 2(7) of the UN Charter, and the Principle of Subsidiarity’ (2011) 24 LJIL 539, at 551. 64

  UN Charter, Art 39. See Certain Expenses of the United Nations (Advisory Opinion) ICJ Rep 1962, p 151, at 167; and, for discussion, see Kasser, ‘The Legal Limits on the Use of International Force through United Nations Practice’ (1979) 35 Revue Egyptienne de Droit International 163, at 207; Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanction (2011), 60–4. See also ch 4, ‘The Trusteeship Council’, section 8.2 on the Security Council’s functions regarding peace and security. 65

  Treatment of the Kurds in Iraq, SC Res 688 (1991); removal of the democratically elected President in Haiti, SC Res 841, 16 June 1983; humanitarian emergency in Somalia, SC Res 794 (1992); genocide in Rwanda, SC Res 929 (1994); civil wars in Angola, SC Res 864 (1993); humanitarian emergency in Kosovo, SC Res 1199 (1998) and SC Res 1203 (1998); humanitarian situation in East Timor, SC Res 1264 (1999) and SC Res 1272 (1999); From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

collapse of government in Haiti, SC Res 1529 (2004); establishing a Peacebuilding Commission, SC Res 1645 (2005); elimination of violence and discrimination against women in armed conflicts and post-conflict situations, SC Res 1889 (2009); post-conflict institutional reforms and national reconciliation in Iraq, SC Res 1770 (2007) (see also SC Res 2001 (2011)); post-conflict recovery, institutional reforms and elections in Sierra Leone, SC Res 1886 (2009); political violence and elections in Guinea-Bissau, SC Res 1876 (2009); post-conflict reconciliation efforts in Somalia, SC Res 1964 (2010); post-conflict institutional reforms and national reconciliation in Haiti, SC Res 1702 (2006); post-disaster recovery and elections in Haiti, SC Res 1892 (2009) (see also SC Res 1944 (2010)); post-conflict elections in the Central African Republic, SC Res 2031 (2011); civil war in Libya, SC Res 1970 (2011) (see also SC Res 1973 (2011), SC Res 2009 (2011)); political unrest and killing of unarmed demonstrators in Yemen, SC Res 2014 (2011); post-conflict national reconciliation and elections in Liberia, SC Res 1961 (2010) (see also SC Res 2008 (2011)); on violations of human rights and international humanitarian law in Syria, SC Res 2332 (2016) (see also SC Res 2165 (2014); SC Res 2139 (2014)); on the refugee crisis, SC Resolution 2240 (2015) (particularly regarding human trafficking) and 2254 (2015) (on refugee flows from Syria); on the illegality of Israeli settlements in Palestine, SC Res 2334 (2016). 66

  See, eg, UN RP Supp no 2 (1955–59) vol II, Art 34, pp 365–6; UN RP Supp no 2 (1955– 59) vol II, Art 35, p 371; UN RP Supp no 2 (1955–59) vol I, Art 2(1)–(5), p 72; UN RP Supp no 8 (1989–94) vol I, Art 2(7), p 25. See also Higgins, The Development of International Law through the Political Organs of the United Nations (1963), 63–130, 238–9; White, n 3, 91; Kunig, ‘Prohibition of Intervention’, MPEPIL (2008), paras 3 and 4. This concept of international concern has also sometimes been used as shorthand for matters that do not fall within the exclusive jurisdiction of member states, thus providing an alternative basis (to the Security Council exception), under Art 2(7), for UN action. On its invocation to this effect in the field of human rights, see Gutter, Thematic Procedures of the United Nations Commission on Human Rights and International Law: In Search of a Sense of Community (2006), 47, and the sources cited in nn 75 and 76. On such invocation in the context of nuclear non-proliferation, see UN RP Supp no 8 (1989–94) vol I, Art 2(7), p 25. On such invocation in a general sense, see [1964] UN Juridical YB 147, para 288. 67

  See ch 3, ‘The Security Council’, section 8, on the functions of the Security Council, and ch 12, section 2, on the development of international law by the UN. 68

  On the UN’s treaty-making power generally, see Parry, ‘The Treaty-Making Power of the UN’, (1949) 26 BYIL 108; Carroz and Probst, Personalité juridique internationale et capacité de conclure des traités de L’ONU et des institutions specialisées (1953); Kasme, La Capacité de L’ONU de conclure des traités (1960); Chui, The Capacity of International Organisations to Conclude Treaties (1966); Higgins, n 66, 241–53; Geiser, Les éffets des accords conclus par des organisations internationals (1977); Sonnenfeld, ‘International Organisations as Parties to Treaties’ (1981–2) XI Polish YIL 177; Seyersted, ‘Treaty Making Capacity of Intergovernmental Organizations: Article 6 of the International Law Commission’s Draft Articles on the Law of Treaties between States and International Organizations or between International Organizations’ (1983) 34 ÖZöR 261; Dobbert, ‘Evolution of the Treaty-Making Capacity of International Organizations’ in The Law and the Sea: Essays in Memory of Jean Carroz (ed Roche, 1984); White, n 3, 41; Nascimento Silva, ‘The 1986 Convention and the Treaty-Making Power of International Organisations’ (1986) 29 Germ YBIL 68; Klabbers, An Introduction to the International Organizations Law (2015), 267–84.

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See also Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) ICJ Rep 1980, p 73; for commentary see, eg, Gray, ‘The International Court’s Advisory Opinion on the WHO–Egypt Agreement of 1951’ (1983) 32 ICLQ 534. On the treaty-making power of the World Food Programme (WFP), a joint body (not enjoying separate legal personality) of the UN and the FAO (a specialized agency), see Relations between States and international organizations, UN Doc A/CN.4/L.383 and Add.1– 3, YBILC, 1985, II (1), p 152. In 1986, a conference of 91 states adopted the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 March 1986, Official Records of the United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations, vol II (UN sales number E.94.V.5). The treaty can be acceded to by both states and international organizations. In early 2017 it was not yet in force. For details of the parties, see https://treaties.un.org/Pages/showDetails.aspx? objid=080000028004bfbd. On the conference and the adoption of the Convention, see http://legal.un.org/diplomaticconferences/lawoftreaties-states-intlorgs-1986/vol_II_e.html. On the Convention, see, eg, Nascimento Silva, above. The Preamble to the Convention notes that ‘international organizations possess the capacity to conclude treaties, which is necessary for the exercise of their functions and the fulfilment of their purposes’. 69

  However, see n 17 for the argument that, at the very least, international organizations have the inherent power to conclude host state agreements and agreements to settle claims by and against the organization. 70

  On the power of the Security Council to enter into agreements with member states under Art 43, see UN Charter, Art 43 and, for commentary, Krisch, ‘Article 43’ in The Charter of the United Nations: A Commentary (vol II, 3rd edn, eds Simma et al, 2012), 1351; Halderman, ‘Legal Basis for United Nations Armed Forces’ (1962) 56 AJIL 971; Rossman, ‘Article 43: Arming the United Nations Security Council’ (1994) 27 NYU JILP, 227; Scheffer, ‘United Nations Peace Operations and Prospects for a Standby Force’ (1995) 28 Cornell ILJ 649; de Wet, The Chapter VII Powers of the United Nations Security Council (2004), 260– 74; Hassler, Reforming the UN Security Council Membership: The Illusion of Representativeness (2013), 17–23. No Art 43 agreements have been concluded between the Security Council and member states. For the relationship agreements between ECOSOC and specialized agencies under Art 63 (on which see also UN Charter, Art 57), see Agreement on Cooperation and Relationships between the United Nations and the World Tourism Organization (approved by GA Res 32/156 (1977) and annexed to its resolution); Relationship Agreement between the United Nations and the United Nations Industrial Development Organization (UNIDO) (approved by GA Res 40/180 (1985), 1985 UNTS 305); Relationship Agreement between the United Nations and the World Intellectual Property Organization (GA Res 3346 (XXIX) (1974), 1974 UNTS 405); Relationship Agreement between the United Nations and the International Fund for Agricultural Development (GA Res 32/107 (1977), 1978 UNTS 331); Agreement on the Relationship between the United Nations and the International Development Association (approved by GA Res 1594 (XV) (1961), 1961 UNTS 221); Agreement on the Relationship between the UN and the International Finance Corporation (approved by GA Res 1116 (XI) (1957), 1957 UNTS 312); Agreement between the UN and the International Bank for Reconstruction and Development (GA Res 124 (II) (1947), 1948 UNTS 341); Agreement between the UN and the International Labour Organisation (ILO) (GA Res 50 (I) (1946), 1946–47 UNTS 183); Agreement between the UN and the Food and Agriculture Organization of the United Nations (FAO) (GA Res 50 (I) (1946), 1946–47 UNTS 207); Agreement between the UN and the United Nations Educational, Scientific and Cultural Organization (UNESCO) (GA Res 50 (I) (1946), 1946–47 UNTS 233); Agreement between the UN and the World Health Organization (WHO) (GA Res 124 (II) (1947), 1948 UNTS 193); Agreement between the UN and the International Monetary Fund (GA Res 124 (II) From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

(1947), 1948 UNTS 325); Agreement between the UN and the International Civil Aviation Organization (ICAO) (GA Res 50 (I) (1946); 1947 UNTS 315); Agreement between the UN and the International Refugee Organization (IRO) (GA Res 205(III) (1948), 1949 UNTS 299); Agreement between the UN and the Universal Postal Union (UPU) (GA Res 124 (II) (1947), 1948 UNTS 219); Agreement between the UN and the International Telecommunication Union (ITU) (GA Res 124 (II) (1947), 1949 UNTS 316); Agreement between the UN and the World Meteorological Organization (WMO), GA Res 531 (VI) (1951), 1952 UNTS 245); Agreement between the UN and the Inter-governmental Maritime Consultative Organization (BCO) (GA Res 204(III) (1948), 1949 UNTS 299). For commentary (on the relationship agreements and Specialized Agencies generally) see ch 8, ‘Membership’, section 6 on the legal personality of specialized agencies, and section 7 on relationship agreements. On the power to enter into agreements under both Articles, see also the commentary cited in n 85. 71

  According to the UN Office of Legal Affairs in 1999: ‘In recent years, there has been a growing tendency for certain offices, departments and subsidiary organs of the United Nations to enter into international agreements in their own name constituting legally binding obligations for the Organization. In our view, this practice is inappropriate, since strictly speaking they do not possess juridical personality and legal capacities, including the capacity to contract, separate from that of the Organization. Accordingly, all such agreements should be executed in the name of the United Nations’ [1999] UN Juridical YB 423, para 4, ‘Certain Aspects Of United Nations Current Treaty Practice (5 April 1999)’. 72

  The Preamble to the VCLT (on which, see above n 68) states that ‘the practice of international organizations in concluding treaties with States or between themselves should be in accordance with their constituent instruments’. On the issue of compatibility with the UN’s existing international law obligations, see ch 12, ‘The United Nations and International Law’, section 5 on the application of general international law to the UN. 73

  See ch 12, ‘The United Nations and International Law’, section 2, on the development of international law by the UN. Higgins, n 66, passim; Alvarez, International Organizations as Law-Makers (2005), passim; Bantjes, Social Movements in a Global Context: Canadian Perspectives (2007), 302. 74

  See ch 26, ‘Keeping the Peace’. The VCLT provides that the treaty is open to signature and ratification by all states, certain international organizations, and Namibia ‘represented by the United Nations Council for Namibia’. See, in this regard, ch 4, ‘The Trusteeship Council’, section 6.3.2, ‘South West Africa (Namibia)’. See Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 March 1986, Official Records of the United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations, vol II (UN sales number E.94.V.5), Arts 82, 83. 75

  Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) ICJ Rep 1949, p 178. See more generally Hardy, ‘Claims by International Organizations in Respect of Injuries to their Agents’ (1961) 37 BYIL 516; Klabbers, An Introduction to International Institution Law (2002), 43, 44. 76

  The practice of the UN, the specialized agencies, and the International Atomic Energy Agency concerning their status, privileges, and immunities: study prepared by the Secretariat, UN Doc A/CN.4/L.118 and Add.1 and 2, YBILC, 1967, II, p 218; GA Res 365(IV) (1949) on Reparation for injuries incurred in the service of the United Nations. See ch 15, ‘The United Nations Secretariat and Secretary-General’.

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77

  See, eg, The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, UN Doc A/CN.4/L.118 and Add.1 and 2, YBILC, 1967, II, pp 218 et seq. The claim in relation to Count Bernadotte was for $54,628, and paid by Israel in full: see ibid. 78

  UN Charter, Art 104. See Seidl-Hohenveldern and Rudolph, ‘Article 104’ in The Charter of the United Nations: A Commentary (vol II, ed Simma, 2002), 1302, and sources cited therein. 79

  See ch 11, ‘The Legal Personality of the United Nations’.

80

  1946 United Nations Convention on Privileges and Immunities, 1 UNTS 15, Art 1 (UN General Convention). 81

  The preamble to the UN General Convention refers to Arts 104 and 105 of the UN Charter, and states that ‘the General Assembly by a Resolution adopted on the 13 February 1946, approved the Convention and proposed it for accession by each Member of the United Nations’ (1946 United Nations Convention on Privileges and Immunities, 1 UNTS 15, preamble). Some of the provisions of the General Convention are concerned with matters relating to member states exclusively (eg privileges and immunities granted to representatives of members). The ‘final article’ (ss 31–36) on accession issues references member states only. Not all member states have become parties to the Convention. At the time of writing, the Convention had 162 states parties (see https://treaties.un.org/pages/ ViewDetails.aspx?src=TREATY&mtdsg_no=III-1&chapter=3&clang=_en); there are 193 members of the UN (see http://www.un.org/en/sections/member-states/growth-unitednations-membership-1945-present/index.html). For examples of UN members that for a period of time were not parties to the Convention, see the discussion of Japan, Korea, and Switzerland in nn 101 and 102. Examples of UN members that are not yet parties to the Convention are Kiribati, Nauru, Tonga, and South Sudan. For some members who are parties to the Convention, there was a significant time period between membership and Convention accession. For example, South Africa has been a member since 1945 but only ratified the Convention in 2002. See https://treaties.un.org/pages/ViewDetails.aspx? src=TREATY&mtdsg_no=III-1&chapter=3&clang=_en#EndDec. 82

  UN RP (1945–54) vol V, Arts 104–5, p 332, para 29; see also ibid, 326–7. Agreement between the United Nations and Japan on Privileges and Immunities of the United Nations, Handbook on the Legal Status, Privileges and Immunities of the United Nations, UN Doc ST/LEG/2 (1952), pp 97–105, and 1952 UNTS 305; Exchange of Letters concerning Privileges and Immunities to be Accorded to the United Nations in Korea, Handbook on the Legal Status, Privileges and Immunities of the United Nations, UN Doc ST/LEG/2 (1952), pp 92–6; Exchange of letters constituting an agreement regarding the application by the Republic of Korea of the provisions of the Convention of the privileges and immunities of the United Nations (1978), 1978 UNTS 296. Japan and Korea became members of the UN in 1956 and 1991 respectively, see http://www.un.org/en/sections/member-states/growthunited-nations-membership-1945-present/index.html. Korea ratified the Convention in 1992, at which point the 1978 Agreement was terminated; see 1992 UNTS 111, and, for the Convention ratification, https://treaties.un.org/pages/ViewDetails.aspx? src=TREATY&mtdsg_no=III-1&chapter=3&clang=_en#EndDec. Japan ratified the Convention in 1963. 83

  UN RP (1945–54) vol V, Arts 104–5, p 332, para 29. See Interim Arrangement on Privileges and Immunities of the United Nations concluded between the Swiss Federal Council and the Secretary-General of the United Nations of 11 June 1946, 1946–47 UNTS 163, approved by GA Res 98 (I) (1946); Agreement on Privileges and Immunities of the United Nations concluded between the Swiss Federal Council and the Secretary-General of the United Nations, 1964 UNTS 309. Switzerland became a member of the UN in 2002, see From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

http://www.un.org/en/sections/member-states/growth-united-nations-membership-1945present/index.html. It acceded to the UN Convention on 25 September 2012, see https:// treaties.un.org/pages/ViewDetails.aspx? src=TREATY&mtdsg_no=III-1&chapter=3&clang=_en#EndDec and https://www.admin.ch/ gov/en/start/documentation/media-releases.msg-id-46108.html. 84

  This is usually through the use of a standard agreement. See, with examples, UN RP (1945–54) vol V, Arts 104–105, p 326, and, for examples, Art I(c) and Art III of the Agreement between the UN and Georgia, Agreement between the UN and the Russian Federation, and Agreement between the UN and Eritrea [1993] UN Juridical YB, at 10, 63, and 86 respectively. See also Agreement concerning the Legal Status, Privileges and Immunities of the United Nations Observer Mission and its Personnel in South Africa (1993), 1993 UNTS 212. An illustrative example of the multiple sources of international legal authority for the UN’s enjoyment of municipal legal capacities is the following description by the UN Office of Legal Affairs of the position of the UN in the US (Office of Legal Affairs, Note on the Legal Status of the United Nations in the United States of America (7 February 2006), [2006] UN Juridical YB 441–2): The Charter of the United Nations does not specify the exact scope and extent of the legal capacities and privileges and immunities of the Organization. In this regard, it only sets out the major principles that are premised on a functional necessity approach. Thus, according to Articles 104 and 105 of the Charter, the Organization enjoys in the territory of each of its Members such legal capacity, and such privileges and immunities as may be necessary for the exercise of its functions and for the fulfilment of its purposes. These principles have been developed in the Convention on the Privileges and Immunities of the United Nations adopted by the General Assembly in 1946…. They have also been reflected in the 1947 Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations. 85

  UN RP (1945–54) vol V, Arts 104–105, p 326. See ch 15, ‘The United Nations Secretariat and Secretary-General’. 86

  UN RP Supp no 6 (1979–84) vol VI, para 42.

87

  See ch 11, ‘The Legal Personality of the United Nations’, section 3 on the domestic legal personality of the UN. For example, in agreements between the UN and The Netherlands and Tanzania, the states concerned agree to provide the ICTY and the International Criminal Tribunal for Rwanda (ICTR) respectively with the three capacities listed in the 1946 Convention. See Agreement between the United Nations and the Government of the Netherlands concerning the Headquarters of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, signed at New York on 29 July 1994, [1994] UN Juridical YB 12, Art III.1; Agreement between the United Nations and the Government of the United Republic of Tanzania concerning the Headquarters of the International Criminal Tribunal for Rwanda, signed at New York on 31 August 1995, [1995] UN Juridical YB 71, Art III, 1. For another example covering the same 1946 Convention capacities, regarding the United Nations Office of the High Commissioner for Refugees (UNHCR) in Germany, see Agreement between the Office of the United Nations High Commissioner for Refugees and the Government of the Federal Republic of Germany concerning the Office of the United Nations High Commissioner for Refugees in Germany. Berlin, 1 July 2005, referred to in [2005] UN Juridical YB 107, Art 4.

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88

  For example, the United Nations Development Programme (UNDP). According to the UN RP, ‘The Office of Legal Affairs advised the UNDP that it had the capacity to acquire real property in a Member State pursuant to Article 104 of the United Nations Charter and article 1, section 1(b), of the General Convention [(1990) UN Juridical YB, 276–7]. The Office recalled that Article 104 of the Charter provides that “the Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes”. The UNDP was a subsidiary body of the United Nations, charged by the General Assembly to provide “systematic and sustained assistance in fields essential to the integrated technical, economic and social development of the less developed countries” and authorized, to this end, to establish field offices under the charge of a Resident Representative exercising authority over the programme activities in the country in receipt of assistance. Furthermore, article I, section 1(b), of the General Convention, provides that the Organization shall possess juridical personality and shall have the capacity to acquire and dispose of immovable and movable property. This being so, the Resident Representative in the country concerned had the authority to conclude contractual arrangements to acquire real property there on behalf of the UNDP.’ UN RP Supp no 8 (1989–94) vol VI, para 71. There was a dispute as to whether and to what extent the WFP could, as a matter of international law, exercise capacities, given that it was a joint body, lacking distinct legal personality, of the UN and the FAO (a specialized agency) (on this legal status, see ch 11, ‘The Legal Personality of the United Nations’, section 4.5 on the legal personality of specialized agencies). The UN Office of Legal Affairs clarified that the WFP possesses the legal capacity to acquire and dispose of movable property, enter into contracts, and be sued. See Relations between States and international organizations, UN Doc A/CN.4/L.383 and Add.1–3, YBILC, 1985, II (1), at p 152. 89

  See ch 11, ‘The Legal Personality of the United Nations’, section 4 on the legal personality of various UN bodies. In the case of the International Seabed Authority, eg, under Art 3 of the Protocol on the Privileges and Immunities of the International Seabed Authority (1998), 2004 UNTS 133, the Authority is to enjoy the three municipal law capacities of the 1949 Convention. Similarly, for the Special Tribunal for Lebanon, both its constituent Agreement and the Headquarters Agreement with The Netherlands provide for the enjoyment of the three capacities. See Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon (2007), 2007 UNTS 257, Art 7, and Agreement between the United Nations and the Kingdom of the Netherlands concerning the Headquarters of the Special Tribunal for Lebanon (2007), 2007 UNTS 273, Art 4, para 1. On the provision for these capacities in the Agreement, see also Office of Legal Affairs, Interoffice memorandum to the Chief Executive Officer, United Nations Joint Staff Pension Fund (UNJSPF), regarding the legal status of the Special Tribunal for Lebanon in view of its application for membership to UNJSPF (24 November 2008), [2008] UN Juridical YB 440–1. The Montreal Fund for the Implementation of the Montreal Protocol administered by United Nations Framework Convention on Climate Change Secretariat, a distinct legal person in international law (see ch 11, ‘The Legal Personality of the United Nations’, section 4.4, ‘“Independent” organs, including funds and programmes’), was determined to be capable of enjoying the three municipal law capacities by the parties to the Montreal Protocol in a decision adopted in 1994. See Montreal Protocol on Substances that Deplete the Ozone Layer (1987), 1989 UNTS 3; Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer (1990), 1991 UNTS 469, Art 10(4); Decision VI/16, adopted during the Sixth Meeting of the Parties to the Montreal Protocol, Nairobi, 6–7 October 1994, para (a), available at http://ozone.unep.org/ Meeting_Documents/mop/06mop/MOP_6.shtml; Office of Legal Affairs, Juridical Personality

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of the United Nations Framework Convention on Climate Change Secretariat (18 December 1995), [1995] UN Juridical YB 452–3, para 6. 90

  As the UN Office of Legal Affairs observed, before a UN body ‘can exercise the right to perform certain acts [in domestic law], such as acquisition of real property and institution of legal actions, internal legislative authorization may be required. It is thus possible to argue that their capacities are essentially territorial in scope depending on whether the subsidiary body conducts operations in the country and whether the law of that particular country recognized such a body as possessing legal capacity’ ([1994] UN Juridical YB 480). See also ch 11, ‘The Legal Personality of the United Nations’. In those common law jurisdictions where treaty obligations are not automatically part of municipal law, some form of enabling legislative act has been necessary, usually the same mechanism that confers legal personality. This has sometimes been part of a broader arrangement with respect to international organizations generally; in other cases it has been specific to the UN or specialized agency/distinct UN entity involved. For example, in Australia, the International Organizations (Privileges and Immunities) Regulations state that the UN ‘has the capacity to contract, and is capable, in its corporate name, of acquiring real and personal property, and of instituting legal proceedings’. In the US, under the International Organizations Immunities Act, the UN as an international organization enjoys ‘the capacity to contract, to acquire and dispose of real and personal property and to institute legal proceedings’. International Organizations Immunities Act, 22 USC § 288 (1952). See also Legislative Texts and Treaty Provisions concerning the Legal Status, Privileges and Immunities of International Organizations, vol I (ST/Leg/Ser. B/10 & 11), 1959 and 1961, pp 4 (Australia), 129 (US). For further examples, the UK and Israel, see ibid, pp 15 and 52. 91

  See section 6.3, ‘Competence to acquire and dispose of property’, particularly n 109 on the issue of the United Nations Institute for Training and Research’s (UNITAR’s) capacity to acquire property. 92

  See ch 4, ‘The Trusteeship Council’, and ch 26, ‘Keeping the Peace’, section 7.2, ‘UN transitional administrations’. 93

  On contracts with private parties, see, eg, Reinisch, ‘Contracts between International Organizations and Private Law Persons’, MPEPIL (2011), available at http:// opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1390; van Hecke, ‘Contracts between International Organizations and Private Law Persons’ in Encyclopedia of Public International Law (vol I, ed Bernhardt, 1992), 812–14; Colin and Sinkondo, ‘Les relations contractuelles des organisations internationals avec les personnes privées’ (1992) 69 Revue de droit international et legislation comparée 7; Valticos, ‘Les contrats conclus par les organisations internationales avec des personnes privées: Rapport provisoire’ (1977) 57(1) Annuaire de l’Institut de droit international 1. A Secretariat study reports that ‘The United Nations has entered into a variety of contracts of a private law character. At the Headquarters of the United Nations, these include, for example, contracts for maintenance, for purchase of office equipment, for the leasing of premises, for printing, etc.’ Relations between States and international organizations (second part of the topic), The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, YBILC, 1985, II(1), Add.1, p 153. The law applicable to UN contracts and the question of adjudication/enforcement are addressed in ch 12, section 5, ‘The obligation of the UN to comply with international law’, and ch 28, ‘Peaceful Settlement of Disputes’, respectively.

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94

  The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, UN Doc A/CN.4/L.118 and Add.1 and 2, YBILC, 1967, II, p 207. See also Relations between states and international organizations (second part of the topic), The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities, 1985, UN Doc A/CN.4/L. 383 and Add.1–3, YBILC, 1985, II (1)/Add.1, p 153, and Opinion of the Office of Legal Affairs in reply to a questionnaire submitted by the Institute of International Law in 1976, reprinted in [1976] UN Juridical YB 159–76. The UN RP reported that over the 1945–54 period, ‘The United Nations … entered into a variety of contracts of a private law character. At the Headquarters of the United Nations, these include, for example, contracts for maintenance, for the purchase of office equipment, for the lease of premises, for printing, et cetera. Contracts have also been concluded by subsidiary organs of the United Nations with private parties in various countries. UNICEF [the United Nations Children’s Fund] and UNRWA [United Nations Relief and Works Agency for Palestine Refugees in the Near East], for example, have concluded contracts for the procurement of supplies; and UNKRA [United Nations Korean Reconstruction Agency] has entered into charter-parties’ (UN RP (1945– 1954) vol V, Arts 104–5, para 29). 95

  The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, UN Doc A/CN.4/L.118 and Add.1 and 2, YBILC, 1967, II, p 207. 96

  On the performance of the general role by members of the Secretariat, see ibid. For an example of the performance of an executing agency role for a subsidiary organ, UNDP, see Relations between States and international organizations (second part of the topic), The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, YBILC, II(1)/Add.1, 1985, p 153. 97

  This is because they do not have a distinct legal personality. See in this regard, ch 11, ‘The Legal Personality of the United Nations’, particularly section 4.3 on subsidiary organs. On the practice of subsidiary organs entering into contracts their own name, see Relations between states and international organizations (second part of the topic), n 93, p 207. 98

  See Relations between states and international organizations (second part of the topic), n 96, at p 470. 99

  According to a report of the Secretariat in 1967: ‘So far as is known, no State has placed any express limitation upon its recognition of the contractual capacity of the United Nations. The Organization may therefore use its contractual powers … for the same purposes as any other legal entity recognized by particular municipal systems.’ The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, UN Doc A/CN.4/L.118 and Add.1 and 2, YBILC, 1967, II, p 208. See also Relations between states and international organizations, The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities, 1985, UN Doc A/CN.4/L.383 and Add.1–3, YBILC, 1985, III (1)/Add.1, p 153, and Opinion of the Office of Legal Affairs in reply to a questionnaire submitted by the Institute of International Law in 1976, reprinted in [1976] UN Juridical YB 159–76. 100

  Thus, the Secretariat has reported that the UN may use its power to contract ‘subject to the limitations imposed by its own structure and the authority given by resolutions adopted by its organs’. The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, UN Doc A/CN.4/L.118 and Add.1 and 2, YBILC, 1967, II, p 208. The Secretariat also reported that ‘Very few cases regarding commercial contracts to From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

which the United Nations was a party have come before municipal courts … . In one case it was held that a United Nations subsidiary organ bringing an action arising out of a contract was obliged to comply with venue requirements’ (ibid, p 209). 101

  The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, UN Doc A/CN.4/L.118 and Add.1 and 2, YBILC, 1967, II, p 208. See also ch 6, ‘Subsidiary Organs’ and ch 27, ‘Peacekeeping and Other Peace Operations’. 102

  For the real property example of headquarters areas, see UN RP (1945–54) vol V, Arts 104–105, p 333, para 33. On Headquarters in New York, see also n 128. See also ch 14, ‘The Financing of the United Nations’, particularly section 6.9 on the discussion of the Capital Master Plan. On the practice relating to immovable property more generally, see Practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, UN Doc A/CN.4/L.118 and Add.1 and 2, YBILC, 1967, II, p 212. On the denial of the right by Mexico, see ibid, p 210, and the reservation made by Mexico on acceding to the 1946 Convention in 1962, available at https://treaties.un.org/pages/ViewDetails.aspx? src=TREATY&mtdsg_no=III-1&chapter=3&clang=_en#EndDec: ‘The United Nations and its organs shall not be entitled to acquire immovable property in Mexican territory, in view of the property regulations laid down by the Political Constitution of the United Mexican States.’ At the time of writing, the reservation was still in force. A similar provision is included in the Agreement between the International Atomic Energy Agency and the Government of Mexico for assistance by the Agency to Mexico in establishing a research reactor project (Article VII of the Agreement, signed at Vienna, on 18 December 1963) ([1963] UN Juridical YB 50)). See also the reservations to the Convention on the Privileges and Immunities of the United Nations made by Indonesia (8 March 1972) and Venezuela (21 December 1998), subjecting the capacity of the United Nations to acquire and dispose of immovable property to national laws, available at https://treaties.un.org/pages/ViewDetails.aspx? src=TREATY&mtdsg_no=III-1&chapter=3&clang=_en#EndDec. See also ch 29, ‘The International Court of Justice’, particularly section 4, ‘The ICJ is distinct from other principal organs’. 103

  The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, UN Doc A/CN.4/L.118 and Add.1 and 2, YBILC, 1967, II, p 213. 104

  ibid, p. 209.

105

  See ibid, p 210. For the specific authorization given by the General Assembly to the Secretary-General, see GA Res 100(1) (1946) on Headquarters of the United Nations. Note that at the time the US was not a party to the 1946 Convention on the Privileges and Immunities of the United Nations; it became a party on 29 April 1970, see at https:// treaties.un.org/pages/ViewDetails.aspx? src=TREATY&mtdsg_no=III-1&chapter=3&clang=_en#EndDec. 106

  The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, UN Doc A/CN.4/L.118 and Add.1 and 2, YBILC, 1967, II, p 213. 107

  For the Jordan and Korea examples, see ibid, p 213. For the Austria example, see Relations between States and International Organizations, The practice of the United Nations, the Specialized agencies and the International Atomic Energy Agency concerning

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their status, privileges and immunities, 1985, UN Doc A/CN.4/L.383 and Add.1–3, YBILC, 1985, III (1)/Add.1, p 160. 108

  The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, UN Doc A/CN.4/L.118 and Add.1 and 2, YBILC, 1967, II, p 211. 109

  [1992] UN Juridical YB 477–8, para 8. So, for example, ‘UNITAR was established under a statute promulgated by the Secretary-General pursuant to General Assembly resolution 1934 (XVIII) of 11 December 1963. As such, the Institute is regarded as a subsidiary body of the General Assembly and has been funded largely through voluntary contributions. While the statute provides that UNITAR has the capacity to acquire and dispose of real and personal property, this power can only be exercised where applicable national law so permits. In the United States, and New York in particular, real estate transactions are governed by national legislation, under which the subsidiary organs of the United Nations are not always treated as separate legal entities. It is for this reason that the title to the land was registered in the name of the United Nations, rather than that of UNITAR. This was done as a convenient legal mechanism, but was never intended as determinative of ownership under the internal law of the United Nations’ (ibid para 9). 110

  [1960] UN Juridical YB 170. The UN RP for 1945–54 stated that ‘The capacity of the United Nations to sue has, in all cases, been upheld by national courts.’ (UN RP (1945–54) vol V, Arts 104–105, para 37) See also The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, UN Doc A/CN.4/L.118 and Add.1 and 2, YBILC, 1967, II, p 216. The UN RP of UN Practice provides the following indicative description of areas where proceedings were instituted in the early years of the organization: ‘Legal proceedings which have been instituted by the United Nations on its own behalf, or on behalf of its subsidiary organs such as UNIGET or UNRWA, and by UNRWA in its own name, covered the following types of action: prosecution of claims assigned by the United Nations Relief and Rehabilitation Administration (UNRRA) to the United Nations for the benefit of UNICEF; action in connexion with traffic accidents involving United Nations vehicles; petition in connexion with the distribution of an estate; action in connexion with shortage in, and damage to, a UNICEF cargo; action for recovery of overpayment made by the United Nations et cetera. There was also a complaint brought by UNICEF before a French court for criminal fraud. In several instances, UNRWA, as plaintiff, has instituted proceedings under loan agreements with Palestine refugees for the recovery of instalments overdue or for violation of the terms of these agreements’ (UN RP (1945–54) vol V, Arts 104–105, para 38). Other early examples of domestic law claims include an action for damages against the US Government brought by the UN and six other shippers, arising out of the loss of and damage to cargo on a US ship, actions in the Belgian courts to recover the overpaid salary of a staff member, and actions in the French courts concerned with criminal fraud. See Balfour, Guthrie & Co Ltd, et al v United States et al, United States District Court for the Northern District of California, 5 May 1950; 90 F Supp 831 (the shipping action); United Nations v B, Tribunal Civil of Brussels, 27 March 1952, 19 ILR 490 (the salary action); Judgment by the Tribunal Correctionnel de la Seine from 18 February 1954, see Annual Report of the Secretary-General, Official Records of the General Assembly, 9th Session, Supp No 1 (A/2663), p 106 (the fraud action). 111

  For an example of the applicability of the general capacity to a subsidiary organ, see the OLA Memorandum on UNICEF’s legal capacity in Mexico, discussed in The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency

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concerning their status, privileges and immunities: study prepared by the Secretariat, UN Doc A/CN.4/L.118 and Add.1 and 2, YBILC, 1967, II, pp 216–17. 112

  ibid, p 216.

113

  The Secretariat provides the following example of a case in the US courts: ‘In Balfour, Guthrie & Co Ltd, et al v United States et al … [t]he Court stated that, having regard to the terms of Article 104 of the Charter which, as a treaty ratified by the United States formed part of the law of the United States “No implemental legislation would appear to be necessary to endow the United Nations with legal capacity in the United States”. The President, however, “has removed any possible doubt by designating the United Nations as one of the organizations entitled to enjoy the privileges conferred by the International Organizations Immunities Act”, under section 2 (a) of that Act. These privileges included “to the extent consistent with the instrument creating them,” the capacity “to institute legal proceedings”’ (ibid, p 216). See Balfour, Guthrie & Co Ltd, et al v United States et al n 110. 114

  See ch 16, ‘United Nations Privileges and Immunities’.

115

  The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, UN Doc A/CN.4/L.118 and Add.1 and 2, YBILC, 1967, II, p 217. An example of this would be the model agreement used for UNICEF (UNICEF Field Manual, vol II, pt IV-2, app A (16 August 1961), Art VI), which includes the following provisions: 1.  The Government shall assume, subject to the provisions of this Article, responsibility in respect of claims resulting from the execution of Plans of Operations within the territory of … 2.  The Government shall accordingly defend, indemnify and hold harmless UNICEF and its employees or agents against all liabilities, suits, actions, demands, damages, costs or fees on account of death or injury to persons or property resulting from anything done or committed to be done in the execution within the territory concerned of Plans of Operations made pursuant to this Agreement, not amounting to a reckless misconduct of such employees or agents. See also the similar provisions in the model agreements concerned with technical assistance—Technical Assistance Board/Special Fund, Field Manual, section Dl/1 a (i) (February 1963), Art I, para 6; assistance from the Special Fund—Technical Assistance Board/Special Fund, Field Manual, section Dl/1 a (ii) (February 1963), Art VIII, para 6; and with the provision of personnel, The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, UN Doc A/CN.4/L.118 and Add.1 and 2, YBILC, 1967, II, p 218. See also the Standard Basic Assistance Agreement of UNDP, DP/107, Art X, para 2, mentioned in Relations between States and International Organizations, The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities, 1985, UN Doc A/CN.4/L. 383 and Add.1-3, YBILC, 1985, III (1)/Add.1, p 160. 116

  See section 2.2, ‘Broad doctrine and expansion of powers’, which describes the practice of the organization and of the ICJ to the effect that an act will be not presumed to be ultra vires where it is appropriate for the fulfilment of the purposes of the organization. 117

  See section 3, ‘General considerations’.

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118

  See Cannizzaro and Palchetti, ‘Ultra Vires Acts of International Organizations’ in Research Handbook on the Law of International Organizations (eds Klabbers and Wallendahl, 2011), 365, at 372; Akande, ‘The International Court of Justice and the Security Council: Is There Room for Judicial Control of the Political Organs of the UN’ (1997) 46 ICLQ 309; Joined Cases C-584/10P, C-593/10P, and C-595/10P Commission, Council, United Kingdom v Yassin Abdullah Kadi (Kadi II) (ECJ, July 2013). Whether acts are ultra vires simply on the basis that they contravene rules of international law that do not amount to jus cogens is more contentious. See the discussion in ch 12, ‘The United Nations and International Law’. 119

  For example, though the General Assembly may discuss any question or matter within the scope of the Charter (UN Charter, Art 10), it may only make recommendations and may not take binding decisions, except in very limited cases, eg relating to the budget of the organization. 120

  Discussed in sections 7.1–7.4. See Lauterpacht, ‘The Legal Effect of Illegal Acts of International Organizations’ in Cambridge Essays in International Law: Essays in Honour of Lord McNair (1965), 88; Osieke, ‘The Legal Validity of Ultra Vires Decisions of International Organizations’ (1983) 77 AJIL 239; Cannizzaro and Palchetti, n 118. 121

  See ch 13, ‘Responsibility of the United Nations’, and the Draft Articles on the Responsibility of International Organizations (DARIO) finalized by the ILC in 2011. See also Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanctions (2011). 122

  See Art 8, DARIO. The ICJ has also recognized that ultra vires acts of organs, officials, or agents of the UN may give rise to the responsibility of the UN. See Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) ICJ Rep 1962, p 151, at 168; Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Right (Advisory Opinion) ICJ Rep 1999, p 62, para 66. See also ch 13, ‘Responsibility of the United Nations’, section 2.3, ‘Attribution of conduct performed ultra vires’. 123

  See Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) ICJ Rep 1962, p 151, at 168: ‘If it is agreed that the action in question is within the scope of the functions of the Organization but it is alleged that it has been initiated or carried out in a manner not in conformity with the division of functions among the several organs which the Charter prescribes, one moves to the internal plane, to the internal structure of the Organization. If the action was taken by the wrong organ, it was irregular as a matter of that internal structure, but this would not necessarily mean that the expense incurred was not an expense of the Organization. Both national and international law contemplate cases in which the body corporate or politic may be bound, as to third parties, by an ultra vires act of an agent.’ Also, Art 46(2) of the VCLT, recognizes that an international organization may be bound by a treaty despite the fact that consent to be bound was given by the relevant organ in violation of the rules of the organization. It provides: ‘An international organization may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of the rules of the organization regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of fundamental importance.’ 124

  See section 7.4, ‘Judicial review of the legality of acts of the organization’. See also Akande, n 118; Martenczuk, ‘The Security Council, the International Court and Judicial Review: What Lessons from Lockerbie?’ (1999) 10 EJIL 517; Franck, ‘The “Powers of Appreciation”: Who is the Ultimate Guardian of UN Legality?’ (1992) 86 AJIL 519; Reisman, ‘The Constitutional Crisis in the United Nations’ (1993) 87 AJIL 83; Macdonald, ‘Changing Relations between the International Court of Justice and the Security Council of the United Nations’ (1993) 31 CYIL 3; Watson, ‘Constitutionalism, Judicial Review, and the World From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Court’ (1993) 34 Harv ILJ 1; Gowlland-Debbas, ‘The Relationship between the International Court of Justice and the Security Council in the light of the Lockerbie Case’ (1994) 88 AJIL 643; Bedjaoui, The New World Order and the Security Council—Testing the Legality of its Acts (1994); Brownlie, ‘The Decisions of Political Organs of the United Nations and the Rule of Law’ in Essays in Honour of Wang Tieya (1994), 91; Gill, ‘Legal and Some Political Limitations on the Power of the UN Security Council to Exercise its Enforcement Powers under Chapter VII of the Charter’ (1995) 26 NYIL 33; Alvarez, ‘Judging the Security Council’ (1996) 90 AJIL 1. 125

  For example, it has been argued that the General Assembly may overturn decisions of the HRC. See the debate in UN Doc GA/11879, 19 December 2016, ‘General Assembly Adopts 50 Third Committee Resolutions, as Diverging Views on Sexual Orientation, Gender Identity Animate Voting’, with respect to whether the Assembly should re-open decisions reached by the HRC. See also ‘SOGI Mandate Passes Third Committee Hurdle’, EJIL: Talk!, 8 December 2016. 126

  Osieke, n 120; Cannizzaro and Palchetti, n 118.

127

  In Certain Expenses of the United Nations (Advisory Opinion) ICJ Rep 1962, p 151, at 222. 128

  See Separate Opinion of Judge Gros, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) ICJ Rep 1980, p 73, at 104. See also Tzanakopoulos, n 121, arguing to similar effect but proceeding from a very different theoretical basis. In this author’s view, a member state may choose not to comply with an ultra vires decision not because it is invalid, but rather because the act of non-compliance could be seen as a countermeasure against the organization. 129

  The same risk exists if the non-compliance of the member state was justified on the basis of countermeasures, since countermeasures only preclude responsibility where they respond to a prior unlawful act. If the prior act is not unlawful, the responsibility for breaching international law by way of countermeasures is not precluded. See Tzanakopoulos, n 121. 130

  Cannizzaro and Palchetti, n 118, 379.

131

  See Art 31(3)(b) VCLT.

132

  See Akande, n 2, 259–60.

133

  For the view that the subsequent practice of a majority of an organ cannot be used to effect constitutional amendment when not acquiesced in by the others, see ibid and the works cited there. 134

  Review by the ICJ of the legality of decisions by the UN or specialized agencies has occurred in numerous Advisory Opinions. In Certain Expenses of the United Nations (Advisory Opinion) ICJ Rep 1962, p 151, at 156–68, the General Assembly requested an opinion from the Court on whether expenditures related to UN peace-keeping missions were expenses of the UN within the meaning of Art 17 of the Charter. In considering that question, the Court felt it necessary to consider whether the peace-keeping operations in question had been lawfully established by the Security Council and the General Assembly. In Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) ICJ Rep 1971, p 16, paras 45–53, the Court was asked to consider the legal consequences for states of the continued presence of South Africa in Namibia following the termination of South Africa’s mandate for the territory by the General Assembly and the decision by the Security Council in Res 276 that states had an obligation to refrain from dealing with South Africa in regard to that territory. The Court stated that whilst there was no established procedure of judicial review within the UN system, the Court was competent

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and would review the legality of the relevant decisions of the General Assembly and the Security Council. In both cases just referred to, the Court found the relevant decisions to be lawful. See also Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) ICJ Rep 1996, p 66, holding that the WHO was not competent to ask the question it put to the Court. In both Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion), ICJ Rep 2010, p 403, para 42 and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Rep 2004, p 136, paras 27–28, the ICJ considered whether the General Assembly had acted in accordance with the Art 12 of the UN Charter. 135

  See Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v US; Libya v UK) (Preliminary Objections) ICJ Rep 1998, p 114 (The Lockerbie Case); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina v Yugoslavia (Serbia & Montenegro)) (Requests for Provisional Measures) ICJ Rep 1993, p 3 and 325. 136

  See Reinisch (ed), Challenging Acts of International Organizations before National Courts (2010). 137

  See Joined Cases C-584/10P, C-593/10P, and C-595/10P Commission, Council, United Kingdom v Yassin Abdullah Kadi (Kadi II) (ECJ, July 2013). 138

  See Al-Jedda v UK, App no 27021/08 (ECHR, 7 July 2011), para 102. See also Nada v Switzerland, App no 10593/08 (ECHR Grand Chamber, September 2012); Al-Dulimi and Montana Managment Inc v Switzerland, App no 5809/08 (ECHR Grand Chamber, July 2016). 139

  See Tzanakopoulos, ‘Domestic Court Reactions to UN Security Council Sanctions’ in Reinisch (ed), n 136, at 54; and, more generally, Tzanakopoulos, n 121. 140

  See Joined Cases C-584/10P, C-593/10P, and C-595/10P Commission, Council, United Kingdom v Yassin Abdullah Kadi (Kadi II) (ECJ, July 2013). See also Nada v Switzerland, App no 10593/08 (ECHR Grand Chamber, September 2012). 141

  Al-Jedda v UK, App no 27021/08 (ECHR, 7 July 2011); Nada v Switzerland, App no 10593/08 (ECHR Grand Chamber, September 2012); Al-Dulimi and Montana Managment Inc v Switzerland, App no 5809/08 (ECHR Grand Chamber, July 2016).

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Part 2 The United Nations: What it is, 10 Voting Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): International organizations

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(p. 357) 10  Voting 1.  Introduction 10.01 2.  General Assembly 10.02 3.  Security Council 10.33 4.  Economic and Social Council 10.61 Abi-Saab, ‘Membership and Voting in the United Nations’ in The Changing Constitution of the United Nations (ed Fox, 1997), 19; Bailey, Voting in the Security Council (1969); Bailey and Daws, The Procedure of the UN Security Council (3rd edn, 1998); Brugière, La règle de l’unanimité des membres permanents au Conseil de Sécurité ‘Droit de Veto’ (1952); Cassan, ‘Le consensus dans la pratique des Nations Unies’ (1974) 20 AFDI 456; Chaitidou, ‘Article 67’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2002), 1728; Cot, Pellet, and Mathias Forteau (eds), La Charte des Nations Unies: Commentaire article par article (3rd edn, 2005); Day, Le droit de véto dans l’Organisation des Nations Unies (1952); Fitschen, ‘Article 21’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), 688; Jimenez de Arechega, Voting and the Handling of Disputes in the Security Council (1950); Köchler, The Voting Procedure in the United Nations Security Council (1991); Peterson, The General Assembly in World Politics (1987); Schermers and Blokker, International Institutional Law: Unity within Diversity (4th rev edn, 2003), ch 6; Sievers and Daws, The Procedure of the UN Security Council (4th edn, 2014), ch 6; Sohn, ‘United Nations Decision-Making: Confrontation or Consensus? (1974) 15 Harv JIL 438; Wolfrum, ‘Article 18’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), 622; Zimmermann, ‘Article 27’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), 871.

1.  Introduction 10.01  The growth in the membership of the UN and the expanding range of activities undertaken by the organization has, on the one hand, made voting a more complex, politically charged practice. On the other hand, these phenomena have encouraged the trend of adopting decisions by consensus. The majority of resolutions in the General Assembly, the Security Council, and the Economic and Social Council (ECOSOC) are adopted without a vote. The veto, however, remains highly controversial in the Security Council.

(p. 358) 2.  General Assembly 2.1  Right to vote and equality of votes 2.1.1  One state, one vote 10.02  Each Member of the General Assembly has one vote.1 This is an expression of the sovereign equality of the UN member states,2 which is given full effect by the fact that the General Assembly, unlike the three Councils, is composed of the total membership of the organization. The six Main Committees of the General Assembly also apply the principle of equality of votes.3

2.1.2  Intergovernmental organizations 10.03  Since intergovernmental organizations or other entities cannot be members of the UN, they do not have the right to vote in its organs. Such entities may nonetheless participate in the work of the UN as observers.4 The European Union (EU) does not have

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the right to vote, but its delegation may make interventions, exercise the right of reply, and present oral proposals and amendments.5

2.1.3  Losing the right to vote 10.04  A member may lose its right to vote as a result of suspension or expulsion.6 A member that is in arrears in the payment of its financial contributions equal to or (p. 359) exceeding the amount due for the preceding two full years shall have no vote in the General Assembly.7 The General Assembly may permit such a member to vote if ‘it is satisfied that the failure to pay is due to conditions beyond the control of the Member’.8

2.2  Majority required 2.2.1  Important questions 10.05  Decisions on ‘important questions’ shall be made by a two-thirds majority of the members present and voting.9 The term ‘decisions’ refers to all types of action the Assembly takes by a vote while performing its functions under the UN Charter, including elections.10 The non-exhaustive11 list of ‘important questions’ in the Charter includes: recommendations with respect to the maintenance of international peace and security; the election of the nonpermanent members of the Security Council; the election of members of ECOSOC; the election of members of the Trusteeship Council; the admission of new members to the UN; the suspension of the rights and privileges of membership; the expulsion of members; questions relating to the operation of the trusteeship system; and budgetary questions.12 The Rules of Procedure of the General Assembly provide for further types of decisions that require a two-thirds majority.13 (p. 360) 10.06  The meaning of ‘important’ in the context of voting in the General Assembly has caused some controversy in the past, but in recent years most resolutions and decisions have been adopted without a vote and the issue does not arise.14

2.2.2  Other questions 10.07  Decisions on ‘other questions’, in contrast to ‘important questions’, are taken by a majority of the members present and voting.15 The determination of additional categories16 of questions to be decided by two-thirds majority is made by a majority of the members present and voting.17 Any member may request that any or all procedural motions be adopted by a two-thirds majority.18 The General Assembly’s practice on the majority required is varied, and all procedural decisions are taken by the Assembly at each annual session on an ad hoc basis and are not binding on it at subsequent sessions.19

(p. 361) 2.2.3  Special majorities 10.08  There are two special cases where the ‘present and voting’ requirement does not apply and the majority pertains to the total membership of the Assembly. First, amendments to the UN Charter require a vote of two-thirds of the members of the General Assembly.20 Although the practice of the General Assembly is to adopt most decisions by consensus, the question of equitable representation on and increase in the membership of the Security Council and related matters requires the affirmative vote of at least two-thirds of the members of the Assembly.21 Nonetheless, if political constraints militate against taking a vote, member states may ascertain by other means that a two-thirds majority is in favour of the resolution.22 Second, the election of judges of the International Court of Justice (ICJ) requires ‘an absolute majority of votes in the General Assembly and in the Security Council’.23

2.2.4  Absence and non-participation in the vote

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10.09  The phrase ‘Members present and voting’ refers to members casting an affirmative or a negative vote.24 The same rule expressly states that members that abstain from voting are considered as not voting. A member that declares its non-participation in a vote is in the same situation as a member that was absent during the vote.25 Such declarations of nonparticipation are usually intended to express the delegation’s fundamental opposition to the draft decision or resolution; the representatives usually remain in their seats during the vote.26 Non-participation in a vote is indicated neither in the official result of the vote announced by the President, nor in the official voting (p. 362) record.27 As regards resolutions or decisions that require special majorities, the majority required is not affected by abstentions, absences, or announcements of non-participation.28 10.10  For those Assembly resolutions or decisions that have a legally binding effect, members are bound by the resolution or decision, including those members that voted against it, abstained, were absent, or declared their non-participation.29

2.2.5  Quorum 10.11  The President may declare a General Assembly meeting open and permit the debate to proceed when at least one-third of members are present.30 A majority of the members must be present for any decision to be taken.31 For Committees of the Assembly, the majority of members of the Committee must be present for decisions, but only one-quarter need be present for the meeting to be open and for debate to proceed.32

2.3  Methods of taking decisions 2.3.1  Methods of voting 10.12  According to the Rules of Procedure, the General Assembly ‘shall normally vote by show of hands or by standing, but any representative may request a roll-call’.33 Since 1976, it has been possible to vote by mechanical means.34 When mechanical means are used, a non-recorded vote replaces a vote by show of hands or standing, and a recorded vote replaces a roll-call vote. Any representative may request a recorded vote.35 (p. 363) 10.13  In practice, the majority of the Assembly’s resolutions or decisions are adopted without a vote. Delegations are discouraged from requesting the roll-call procedure unless ‘there are good and sound reasons for doing so’.36 The roll-call procedure has not been used in the Assembly since 1992.37

2.3.2  Consensus and adoption without a vote 10.14  Although the Rules of Procedure are silent as to consensus, it is the long-established practice of the General Assembly and its Main Committees to strive for consensus wherever possible.38 Consensus is understood as ‘the absence of objection rather than a particular majority’.39 The Special Committee on the Rationalization of the Procedures and Organization of the General Assembly considered that the adoption of decisions and resolutions by consensus ‘is desirable when it contributes to the effective and lasting settlement of differences, thus strengthening the authority of the United Nations’.40 It also, however, emphasized that the right of every member state to express its view in full must not be prejudiced by this procedure. 10.15  The preference for decision-making by consensus reflects the fact that the interests and positions of member states have become more diverse, dissolving the natural majorities that had coalesced around the founding members.41 The techniques for achieving consensus have an impact on the conduct of negotiations and the results achieved.42 One state or a small group of states may be able to stall the taking of a decision by asking for the continuation of negotiations, claiming that there are still (p. 364) unexplored

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opportunities for consensus. On the other hand, a decision based on consensus may encourage compliance as compared to a decision by majority vote. 10.16  The concept of ‘adoption without a vote’ is very close to consensus, and the distinction between the two methods is often blurred.43 For this method, the President asks the Assembly if it wishes to adopt a draft resolution or decision, and if no representative objects he/she declares ‘it is so decided’.44 Unlike with consensus procedure, the President does not expressly declare that there is ‘consensus’ or ‘agreement’ among the members. Adoption without a vote was initially used for procedural or minor decisions, but it is now used for any kind of decision or resolution, including those considered to be politically important.

2.3.3  Secret ballot 10.17  The Rules of Procedure do not provide for vote by secret ballot other than for elections, but the absence of a provision does not prevent the Assembly from deciding to resort to a secret ballot to adopt a resolution or decision on any issue under consideration.45

2.3.4  Motion to take no action 10.18  A motion to take no action is a procedure used to prevent a decision’s being taken in the course of the current Assembly session.46 It has mainly been employed by the Nordic countries to postpone challenges to the credentials of the Israeli delegation posed by Arab countries.47

2.3.5  Division of proposals and amendments 10.19  A representative may request that parts of a proposal or of an amendment be voted on separately.48 If another representative objects, the motion for division shall be voted on.49 According to the Rules of Procedure, if the motion is carried, those parts of the proposal or amendment that are approved are put to the vote as a whole.50 However, the practice is that if there is no objection, or if a specific request for a vote on the proposal or amendment as a whole is made, the proposal may be adopted (p. 365) without a vote even though parts of it have been voted on separately.51 If all operative parts of the proposal or amendment have been rejected, the proposal or the amendment is deemed to have been rejected as a whole.52

2.4  Voting conduct 2.4.1  Closure of debate 10.20  A representative may at any time move to close the debate on the item under discussion.53 Permission to speak on the closure of the debate shall be accorded only to two speakers opposing the closure, after which the motion shall be immediately put to the vote.54 If the General Assembly is in favour of the closure, the President shall declare the closure of the debate.55 No new substantive proposals, including amendments and subamendments, may be submitted after a motion for closure has been adopted.56 However, closure of the debate does not prevent the consideration of normal procedural motions or a proposal already submitted but not yet formally introduced or even circulated, the exercise of the right of reply, or the explanation of votes.57 Closure of the debate may also be achieved by a declaration after the normal conclusion of the debate, or on the exhaustion of a closed list of speakers.58

2.4.2  Conduct during voting 10.21  During voting, there is a strict rule against interruptions. After the President has announced the beginning of voting, no representative shall interrupt the voting (p. 366) except on a point of order in connection with the actual conduct of the voting.59 A point of order is ‘an intervention directed to the presiding officer, requesting him to make use of some power inherent in his office or specifically given him under the rules of procedure’.60 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Whenever a representative raises a point of order, it shall be immediately decided by the President.61 A representative may appeal the President’s ruling and the appeal shall immediately be put to the vote.62 The President’s ruling can only be displaced by a majority of the members present and voting.63 10.22  Since the Assembly may engage in a long series of votes that lasts for hours or even days, such as elections to principal organs, the rule against interruptions is understood to apply to the narrowest interpretation of ‘during voting’.64

2.4.3  Order of voting on proposals and amendments 10.23  Subject to certain procedural motions, any motion calling for a decision on the competence of the Assembly to adopt a proposal shall be put to the vote before a vote is taken on the proposal.65 10.24  If two or more proposals relate to the same question, the usual practice is for the Assembly to vote on the proposals in the order in which they were submitted.66 Proposals are treated in the order of submission regardless of whether they are submitted by member states, or in the form of a draft resolution in the report of a main or a subsidiary organ, such as the Committee on Contributions.67 After each vote on a proposal, the Assembly may decide whether to vote on the next proposal.68 10.25  When an amendment is moved to a proposal, the amendment is voted on first. When two or more amendments are moved, the Assembly first votes on the (p. 367) amendment ‘furthest removed in substance from the original proposal and then on the amendment next furthest removed therefrom, and so on’.69 However, when the adoption of an amendment necessarily implies the rejection of another amendment, the latter amendment shall not be put to the vote.70 After amendments are adopted, the amended proposal is voted on again.

2.4.4  Explanations of vote 10.26  Before or after a vote, the President of the General Assembly may permit members to explain their votes.71 In practice, the right to explain a vote is absolute, though the President has the discretion as to whether explanations are given only before, after, or both before and after the vote.72 The President may limit the time allowed for such explanations, which is generally 10 minutes.73 The member that put forward the proposal or amendment is not permitted to explain his/her vote on his/her own proposal or amendment,74 and repetition of explanations in a Main Committee and then in the plenary is discouraged unless a delegation’s vote in the plenary is different from its vote in the Committee.75

2.4.5  Correction of a vote 10.27  A request for the correction of the vote may be granted if the result of the vote has not yet been declared.76 With mechanical means of voting, a request to correct a vote is only granted if the machine has not yet been locked.77 If a member state has been unable to participate in a vote but wishes to declare its position, a footnote is inserted (p. 368) in the tabulation of votes.78 A member state may also propose a reconsideration of the vote in question.79

2.5  Elections 2.5.1  Secret ballot and acclamation 10.28  The Rules of Procedure provide that ‘[a]ll elections shall be held by secret ballot’.80 Secret ballots have, however, been dispensed with for elections when the number of candidates corresponds to the number of seats to be filled.81 This applies to elections to subsidiary organs and the election of the President and Vice-Presidents of the General

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Assembly. In such cases, the candidate is elected by acclamation. A delegation may always specifically request a vote on a given election.

2.5.2  Elections to the principal organs of the United Nations 10.29  The Assembly has not held elections to the Trusteeship Council since its 20th session.

2.5.3  Appointment of the Secretary-General 10.30  Article 97 of the UN Charter provides that ‘[t]he Secretary-General shall be appointed by the General Assembly upon the recommendation of the Security Council’.82 An early General Assembly resolution stated a simple majority was necessary for appointment, unless the Assembly itself decided to require a two-thirds majority.83 The reality is that the Secretary-General is elected by acclamation. After the President of the Security Council communicates the decision to the President of the General Assembly, the General Assembly appoints the incoming Secretary-General in a public meeting by acclamation, even though the Rules of Procedure provide that the vote shall be in a private meeting.84

(p. 369) 2.5.4  Election of the President of the General Assembly 10.31  The usual practice is for only one candidate to be proposed for the post of President of the General Assembly and for him/her to be elected by acclamation.85 The President is elected at least three months prior to the opening of the subsequent session.86 Although the Rules do not provide for any formal qualifications for the President of the Assembly, the Special Committee on Methods and Procedures of the General Assembly observed: The satisfactory progress of the proceedings depends essentially on their competence, authority, tact and impartiality, their respect for the rights both of minorities as well as majorities, and their familiarity with the rules of procedure. The General Assembly, or the committee, as the case may be, is the master of the conduct of its own proceedings. It is, however, the special task of the Chairmen to guide the proceedings of these bodies in the best interests of all the Members.87 The practice is not to elect a President from one of the five permanent members to the Security Council.

2.5.5  Election of the judges of the ICJ 10.32  The election of judges of the ICJ is governed by the Statute of the ICJ. The judges are elected by the General Assembly and Security Council voting independently of one another, unlike the procedure for other international courts and tribunals.88 Candidates must obtain ‘an absolute majority of votes in the General Assembly and in the Security Council’.89 The General Assembly and Security Council have interpreted this as an absolute majority of the total membership, not the absolute majority of votes cast. However, Article 10 of the ICJ Statute was intended to prevent a plurality or ‘first past the post’ result.90

(p. 370) 3.  Security Council 3.1  Framework 10.33  Security Council voting91 is governed by Article 27 of the UN Charter.92 Voting in the specific context of the review of the Charter is covered by Article 109.93 The Council’s Provisional Rules of Procedure are also relevant.94 There are two distinctive features of voting practice in the Council: first, the distinction between procedural and non-procedural matters; second, the power to veto resolutions possessed by the five permanent members.95

3.2  ‘Procedural’ and ‘all other’ matters

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10.34  In paragraphs 2 and 3 of Article 27 of the UN Charter, a distinction is made between decisions on ‘procedural matters’ and those on ‘all other’ matters. Decisions on ‘procedural matters’ require an affirmative vote of nine members, while decisions on ‘all (p. 371) other matters’ require nine affirmative notes and the concurring votes of the permanent members of the Security Council. 10.35  The term ‘procedural matters’ is not defined in the UN Charter, nor in the Provisional Rules of Procedure.96 ‘Procedure’ is the heading preceding Articles 28–32 of the Charter, which regulate the organization, representation, meeting places, the creation of subsidiary organs, rules, and participation of non-members in the Council. 10.36  Debates over the distinction between ‘procedural’ and ‘all other’ matters have taken place since the inception of the UN.97 The issue attracted attention during efforts at reforming the Council in the 1990s and early 2000s.98 No firm conclusion was reached, and the debate on Council voting has since shifted to whether limits can and should be placed on the exercise of the veto per se.99 10.37  Discerning the distinction between ‘procedural’ and ‘all other’ matters from the practice of the Council is not straightforward.100 Nonetheless, certain matters have typically been treated as ‘procedural’ by the Council, and therefore as requiring only nine affirmative votes.101 The creation of subsidiary organs by the Security Council may be ‘procedural’ or not depending on the character of the organ to be created and the powers it will exercise.102 Decisions under Chapter II on applications for membership, (p. 372) requests to the General Assembly under Article 12(1) of the Charter, decisions under Chapter VI relating to disputes or situations under Articles 33 and 34, decisions under Chapter VII fall under Article 27(3), and decisions under Chapter XIV are subject to the veto.103 Procedural questions that necessarily contain, by implication, a substantive element, remain procedural questions;104 a decision on a substantive issue that combines procedural and substantive elements is considered substantive and Article 27(3) applies.105

3.3  Proceedings of the Security Council regarding voting upon the question whether the matter was procedural 10.38  The drafting history of Article 27 of the UN Charter and the practice of the Council confirm that a decision on whether a matter is ‘procedural’ or not is subject to the voting requirements in Article 27(3) of the Charter.106 This leads to the possibility of the ‘double veto’. This refers to the situation where it is not clear whether a proposal is non-procedural/ substantive and therefore subject to a veto under Article 27(3); when the Council votes to determine whether the matter is procedural or not (the ‘preliminary question’), that vote itself is subject to a veto.107 A ‘double veto’ arises in the consideration of a single proposal.108 The President of the Security Council formulates the preliminary question and interprets the result of the vote.109 10.39  In practice, the ‘double veto’ has not been used since 1959.110

3.4  Veto 10.40  Article 27(3) of the UN Charter does not use the word ‘veto’, but it is understood that the non-concurring vote of a permanent member will defeat a draft resolution on a nonprocedural matter. Since 1946, the non-concurring vote or veto has been exercised by members of the P5 over 200 times.111 The vast majority of those (p. 373) occasions were during the Cold War. From 1996 until the end of 2016, the veto was used only 28 times.112 10.41  During the drafting of the UN Charter, the veto was highly contentious,113 and its controversial nature persists.114

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10.42  The Soviet Union (before it became the Russian Federation) used its veto power on more occasions than the other permanent members. From 1946 until the fall of the Soviet Union and the succession of the Russian Federation, it vetoed 119 resolutions.115 The Russian Federation has used the veto power much less often.116 10.43  China has used its veto power on rare occasions, having vetoed 10 resolutions since 1971.117 France and the UK have not exercised the veto in a quarter of a century.118 10.44  The US has vetoed 14 resolutions since the end of the Cold War, mostly in relation to the Israeli–Palestinian conflict.119 10.45  The threatened use of the veto (also called the ‘pocket veto’) is largely hidden from the statistics,120 but hinders the ability of the Council to act. The pocket veto allows (p. 374) a permanent member to keep an issue off the agenda, or to soften the language of a resolution.121

3.4.1  Attempts to reform the veto 10.46  There have been numerous attempts to reform the exercise of the veto, driven by frustration with the impact on the effectiveness of the Council122 and with the fact that only the permanent members can wield this power. 10.47  Various suggestions have been made by member states over the years for reforming the veto power,123 but they have not gained sufficient support. 10.48  The High-Level Panel on Threats, Challenges, and Change called on the P5, ‘in their individual capacities, to pledge themselves to refrain from the use of the veto in cases of genocide and large-scale human rights abuses’.124 The Small 5125 included this suggestion among their proposed measures for consideration by the P5 to enhance the ‘accountability, transparency and inclusiveness’ of the Security Council’s work.126 It has been supported in other fora,127 but the only Permanent (p. 375) Member who has supported the idea of a ‘code of conduct’ for the exercise of the veto is France.128 10.49  A weaker, post facto measure would be to require public, written justification of the use of the veto.129 This already happens to a certain extent in the statements of members before or after a vote.130

3.5  Abstention, non-participation, and absence 3.5.1  Affirmative votes 10.50  Article 27 of the UN Charter requires an affirmative vote, which precludes an abstention or the absence of a member being counted towards the required number of votes.131 If the vote of a permanent member is required to reach the required nine affirmative votes, that member’s abstention or absence acts as a ‘concealed veto’ by preventing the adoption of the draft resolution.132 If the votes of several non-permanent members are needed to reach nine votes, their absence or abstention amounts to a so-called ‘group veto’.133

3.5.2  No quorum requirement 10.51  Article 27 and the Provisional Rules of Procedure are silent on any quorum requirement. In practice, no quorum is required.134 The only numerical requirement in (p. 376) Article 27 of the UN Charter is nine affirmative votes, which requires nine members to be present and voting. Article 27(3) additionally requires the ‘concurring votes of the permanent members’.

3.5.3  Voluntary abstention by permanent members

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10.52  The voluntary abstention from a vote under Article 27(3) of the Charter by a permanent member does not constitute a veto.135 The ICJ has noted the consistent and uniform interpretation of voluntary abstention by a permanent member ‘as not constituting a bar to the adoption of resolutions’.136

3.5.4  Non-participation by permanent members 10.53  The practice of a permanent member’s being present during the session but not taking part in the ballot is known as non-participation.137 It has the same legal effect as abstention with respect to Article 27(3): it does not constitute a veto.

3.5.5  Absence 10.54  During certain periods in the history of the UN, permanent members have been absent.138 This has been treated as abstention from votes and has not prevented resolutions being adopted on procedural or other matters.

3.5.6  Obligatory abstention 10.55  The proviso to Article 27(3) of the UN Charter reads, ‘provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting’. This obligation to abstain applies to measures provided for in Articles 33, 34, 36,139 and 38,140 with regard to questions inherent in decisions based on Chapter VI,141 and decisions under Article 52(3) relating to the peaceful settlement of ‘local disputes’ through regional arrangements or by regional agencies. (p. 377) The obligation to abstain applies to ‘disputes’ as compared to ‘situations’.142 The determination of whether a state is a ‘party’ to a dispute is ultimately determined by the Council.143

3.6  Statements before or after the vote 10.56  The Provisional Rules of Procedure are silent on the possibility for members of the Security Council to make statements before or after the vote.144 In practice, such statements are frequently made, this possibility being either by prior agreement, or after a spontaneous decision in the Council Chamber.145 Statements may be made by states, or by persons other than the Council members.146 Statements by Council members are discouraged if a resolution has been adopted by consensus or as a ‘presidential text’,147 but these sometimes occur on contentious matters.148 A permanent member may use a statement after a vote to express dissatisfaction in lieu of exercising the veto.149 It is customary for permanent members who exercise the veto to make a statement afterwards explaining their reasoning.150 It is, however, unusual for a statement to be made before or after a Presidential Statement has been delivered.151

3.7  Announcement of vote results 10.57  The President of the Security Council announces the result of each vote. His/her announcement will indicate whether the veto was exercised.152

(p. 378) 3.8  Adoption of resolutions and decisions by consensus or without a vote 10.58  Despite the reference to taking decisions by ‘an affirmative vote’ in Article 27(2) and (3) of the UN Charter, in practice Council decisions can be and are adopted by consensus.153 Unless otherwise specified, a decision by consensus is considered an affirmative vote of all Security Council members.154 Decisions by consensus tend to be adopted for procedural matters.155

3.9  Elections

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3.9.1  Election of the judges of the ICJ 10.59  The General Assembly and Security Council vote independently of one another to elect the judges of the ICJ.156 Candidates must obtain ‘an absolute majority of votes in the General Assembly and in the Security Council’.157 This is an absolute majority of the total membership of the Council, not the absolute majority of votes cast.158

3.9.2  Election of the Secretary-General 10.60  Article 97 of the UN Charter provides that ‘[t]he Secretary-General shall be appointed by the General Assembly upon the recommendation of the Security Council’. Article 10 of the ICJ Statute provides that ‘an absolute majority of votes’ is required in the Security Council. After the vote, the President of the Security Council communicates the decision to the President of the General Assembly, and the General Assembly appoints the incoming Secretary-General in a public meeting by acclamation.159

(p. 379) 4.  Economic and Social Council 4.1  Right to vote and equality of votes 10.61  Each member of ECOSOC shall have one vote.160 This is identical to the basic principle underpinning voting in the other principal organs.161 The right to vote corresponds to the term of office of each member of ECOSOC.162 Unlike the Security Council, there is no right of veto in ECOSOC.163 The right to vote and the principle of equality of votes apply to voting on proposals and amendments, to elections, and to concurrence on certain procedural matters.164 The same rules on voting apply to decisions adopted in the committees and sessional bodies of ECOSOC and their subsidiary bodies, unless otherwise provided.165

4.2  Majority required 10.62  Decisions of the ECOSOC shall be made by the majority of the members present and voting.166 This rule applies to all types of action taken by a vote while ECOSOC is performing its functions under the UN Charter, including procedural and final decisions, resolutions, elections, and special cases of concurrence.167 The phrase ‘Members present and voting’ means the members casting an affirmative or negative vote.168 Members who abstain are considered as not voting.169 (p. 380) The quorum for ECOSOC is at least onethird of the members for its meetings and a majority of the members for making decisions.170 If a vote is equally divided on a matter other than an election, the proposal or motion shall be regarded as rejected.171 For elections, if the votes are equally divided, a second or special ballot is held. If the tie cannot be resolved by ballot, the President shall decide by drawing lots.172

4.3  Methods of taking decisions 4.3.1  Resolutions and decisions 10.63  The Rules of Procedure of ECOSOC provide that, with the exception of elections, the Council ‘shall normally vote by show of hands, except that a representative may request a roll-call’.173 In the early years, most resolutions were adopted by a show of hands.174 However, in recent years, a show of hands is almost never used and roll-call votes are taken only occasionally.175 When ECOSOC votes by mechanical means, a non-recorded vote replaces a vote by show of hands, and a recorded vote replaces a roll-call.176 A representative may request a recorded vote.177 Recorded votes are rarely used and nonrecorded votes are almost never taken.178

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(p. 381) 10.64  The current practice is for the vast majority of ECOSOC resolutions to be adopted without a vote, also known as ‘tacit consent’.179 This practice has developed on the basis of the Rules of Procedure, since the UN Charter is silent as to decisions without a vote.180 The determining factor is whether a member requests a vote. Where no member requests a vote, ECOSOC may adopt proposals or motions without a vote.181 To make clear what procedure is being used, the President states that no member requests a vote and that there is consensus among the members on the matter.182 Any type of motion may be decided without a vote, and the decision or resolution has the same legal validity as those taken by means of a vote. The original intention was for decisions on procedural and administrative matters to be taken without a vote, but the procedure has increasingly also been used for substantive matters.183 10.65  For changing the date of a substantive session or the calling of special sessions, decisions may be taken by a concurring majority of the members.184

4.3.2  Elections 10.66  According to the Rules of Procedure, elections shall be held by secret ballot unless, in the absence of an objection, ECOSOC decides to proceed without taking a ballot on agreed candidate or slate.185 In practice, elections are almost always done by acclamation, without taking a ballot.186

(p. 382) 4.4  Decision-making by commissions 10.67  The basic rules on voting in ECOSOC do not apply to the functional commissions established by ECOSOC.187 Nonetheless, for practical reasons, the functional commissions do follow similar rules on voting, elections, and decisions without a vote.188 The rules on the principle of majority and quorum are different.189 10.68  The five regional commissions of ECOSOC adopt their own rules of procedure under their terms of reference. These tend to follow the rules of procedure of the functional commissions.190

Footnotes: 1

  UN Charter, Art 18(1). See ch 2, ‘General Assembly’, section 5, ‘Voting’.

2

  This is reflected in Art 2(1) of the UN Charter. During the San Francisco Conference, only Norway suggested a system of voting based on real differences between states with respect to their population, military and economic power, and general education. Norway did not, however, propose an amendment in this regard (Norway, United Nations Conference on International Organization (UNCIO) III, 356ff, Doc 2 G/7(n)). 3

  The Main Committees are composed of the total membership of the UN, though in practice not all member states are active in each Committee. Chapter XIII of the GA Rules of Procedure pertains to the Committees and many of its provisions are identical to the rules applicable to the Assembly itself, though different rules apply for quorum and voting. Decisions of Committees are generally made by a majority of the members present and voting (Rule 125). 4

  See ch 8, ‘Membership’, section 7, ‘Observers’.

5 

The granting of these rights was the subject of long negotiation among member states and the EU. GA Res 65/276 (2011) provides that the EU and its member states can be inscribed on the list of speakers among representatives of major groups and be invited to participate in the Assembly’s general debate, in accordance with the order of precedence and the level of representation. Representatives of the EU are ensured seating among the observers without the right to vote, co-sponsor resolutions or decisions, or put forward candidates. Oral proposals and amendments presented by the EU may only be put to a vote

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at the request of a member state. This 2011 Resolution represented a shift from the treatment of the European Community, which was granted observer status in the Assembly in GA Res 3208 (XXIX) (1974). In recognition of the Community’s sometimes exclusive competence on behalf of its member states in certain areas, the Assembly granted the Community rights of ‘full participation’ (not including the right to vote) in a number of UN conferences (eg, the UN Conference on Environment and Development 1992), and recommended that ECOSOC do the same with respect to the Commission on Sustainable Development (GA Res 47/191 (1992) and ECOSOC Decision 1995/201). 6

  UN Charter, Arts 5 and 6. See ch 8, ‘Membership’, sections 3.1, ‘Suspension from membership’, and 3.2, ‘Expulsion from membership’. 7

  UN Charter, Art 19. See ch 14, ‘The Financing of the United Nations’, section 6.7, ‘Arrears’. 8

  UN Charter, Art 19. See, eg, [1994] UN Juridical YB 474.

9

  This applies to decisions of the General Assembly itself taken in plenary, not the decisions of Committees ([1971] UN Juridical YB 200 and GA Rules of Procedure, Rule 125). 10

  UN RP (1945–54), vol III, Art 67, p 463, para 13: a legal study of the term ‘decision’ was prepared by the Secretary-General under GA Res 362 (IV) (1949): the legal study reference is GA (V), Annexes, a.i. 49, p 1, UN Doc A/1356, paras 22–3. For the General Assembly, ‘the term “decision” refers to all types of action the General Assembly takes by a vote while performing its functions under the Charter’, and the same would apply to the decisions of ECOSOC referred to in Art 67. The study adds that ‘decisions’ in the UN Charter Articles relating to voting is ‘used in a broad sense to cover all types of action by United Nations organs’. The text of the Charter provides no specific answer to the question whether these ‘decisions’ must be final decisions of these organs on matters submitted to them, or whether the term ‘decision’ also encompasses procedural decisions preceding the adoption of final resolutions. 11

  Art 18(2) of the Charter provides that ‘important question’ shall ‘include’ the following questions, which clearly indicates the list is non-exhaustive ([2005] UN Juridical YB 458, at 459). The French text, however, suggests that the list in Art 18(2) is exhaustive (‘Sont considérées comme questions importantes …’) (General Assembly Official Records (GAOR) (VIII) 459th plenary meeting, p 314; and Wolfrum, ‘Article 18’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), 622, at 625). 12

  The Legal Counsel has clarified that three types of questions exist within the scope of ‘budgetary questions’: the budget itself, the apportionment of expenses, and questions of principle affecting decisions on the first and second points. Wolfrum, n 11, 322. 13

  GA Rules of Procedure, Rules 19 (adding items on the supplementary list and additional items to the agenda during a special session, adding additional items concerning the matters dealt with in GA Res 377 A (V) to the agenda during an emergency special session), 81 (reconsideration of proposals at the same session), and 84 (decisions on amendments to proposals relating to important questions, and on parts of such proposals put to the vote separately). 14

  In the period 1945–84, the Assembly only referred to the difference between ‘important’ and ‘other’ questions where there was a divergence of views as to the majority required, or when a two-thirds majority did not seem to be assured before the vote (UN RP Supp no 9 (1995–99) vol II, Art 18, pp 5–6, para 16). Since 1984, this issue has not been discussed. In 1984, the US raised the question of the mandatory application of Art 18(2) of the UN Charter (two-thirds majority) to draft resolutions on the situation in the Middle East, since they pertained to the maintenance of international peace and security. The representative of Democratic Yemen requested the President of the Assembly to ask the Legal Counsel to clarify whether the draft resolutions required a two-thirds majority, or whether it was From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

mandatory to consider the draft resolutions as ‘important’ under Art 18(2) of the Charter. The Legal Counsel observed that the practice of the Assembly under Art 18(2) was ‘varied’ and that many resolutions pertaining to the situation in the Middle East had received a twothirds majority, so the question of whether they were taken under Art 18(2) had not arisen. He pointed out that a draft resolution need not contain a recommendation for the Security Council to take measures under Chapter VII to fall under Art 18(2). He concluded that it would be appropriate for the draft resolutions on the situation in the Middle East to fall into the category of decisions mentioned in Art 18(2) and require a two-thirds majority for adoption. The US proposed a motion along these lines that was rejected by a recorded vote of 69:28, with 23 abstentions. The Assembly then adopted the draft resolutions by more than a two-thirds majority. UN RP Supp no 6 (1979–84) vol II, Art 18, pp 240–2, paras 20– 31. In the period 2000–9, the majority of decisions of the General Assembly were adopted without a vote, the balance mainly by a two-thirds majority and a simple majority serving as an exception: UN RP Supp no 10 (2000–09) vol II, Art 18, pp 2, 9, paras 2, 23. 15

  UN Charter, Art 18(3).

16

  The term ‘categories’ has created uncertainty, with the point being made by some member states that the Assembly could not decide whether a two-thirds majority was required on an individual draft resolution. The Assembly has the power to define the term; it need not have a broad scope, nor be permanent. Wolfrum, n 11, 323–4. 17

  UN Charter, Art 18(3). GA Rules of Procedure, Rule 93 expressly mentions the possibility of requiring a two-thirds majority for an election. When the Assembly created the Human Rights Council, it decided that the 47 Council members shall be elected directly and individually by secret ballot by the majority of the members of the General Assembly (GA Res 60/251 (2006), para 7; cf [2005] UN Juridical YB 459). An example of a question to be decided by a two-thirds majority under Art 18(3) was Apartheid (GAOR (39) 98th plenary meeting). Rather than using Art 18(3), the more usual practice is for the Assembly to declare that a question falls under one of the items listed in Art 18(2). 18

  Such a request must specify whether it is to be two-thirds of members ‘present and voting’ (in accordance with GA Rules of Procedure, Rule 85) or two-thirds of the membership (in accordance with GA Res 53/30 (1998)). A decision to adopt motions by a two-thirds majority shall be adopted by the majority of those ‘present and voting’: [2005] UN Juridical YB 458. 19

  UN RP Supp no 6 (1979–84) vol II, Art 18, p 241, para 29 (Opinion of the Legal Counsel).

20

  The amendment must then be ratified in accordance with their respective constitutional processes by two-thirds of UN members, including all the permanent members of the Security Council (UN Charter, Art 108). This special majority requirement applies only to the vote in the Assembly and not to the Main Committees, where a recommendation to the General Assembly is made by a majority of the members present and voting ([1971] UN Juridical YB 200 and GA Rules of Procedure, Rule 125). See also Art 109 on the General Conference for the purpose of reviewing the UN Charter. The proposal to call such a conference requires a decision by a majority vote of the members of the General Assembly and a vote of any seven members of the Security Council. 21

  GA Res 53/30 (1998). This refers to two-thirds of the membership, not the members ‘present and voting’. Two-thirds of 192 member states requires an affirmative vote of 128. The reasoning behind this rule is that consensus would not guarantee that the two-thirds majority is obtained and could allow the adoption of a resolution with less than this required majority. The requirement to vote in such a situation is a technical means to record

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the majority required, rather than ‘an attempt to force Members to make their positions explicit’ ([2005] UN Juridical YB 457–8). 22

  [2005] UN Juridical YB 458. Member states would also have to decide whether adoption without a vote in such circumstances is compatible with the UN Charter and GA Res 53/30 (1998). A vote by secret ballot would be a possibility. 23

  Art 10, Statute of the International Court of Justice 1946 (‘ICJ Statute’). This absolute majority is based on the total membership of the UN: [1986] UN Juridical YB 274. See para 10.59. 24

  GA Rules of Procedure, Rule 86.

25

  GA Rules of Procedure, Rule 87(1) provides that in a roll-call vote, representatives reply ‘yes’, ‘no’, or ‘abstention’. Examples of declarations of non-participation include most of the member states of the Antarctic Treaty when the Assembly voted upon its resolution concerning Antarctica (GAOR (40) 117th plenary meeting and (41) 96th plenary meeting). 26

  For example, the US decided not to participate in the voting on General Assembly resolutions on the International Criminal Court (ICC) (GA Res 57/23) (2002). The US position later changed. See ch 31, ‘Criminal Tribunals Established by, or in Relationship with, the UN’, section 3.3, ‘Relationship of the ICC with the United Nations’. 27

  [1986] UN Juridical YB 274–5. A member may request in an explanation of vote that its non-participation be noted in the official records (UN RP Supp no 3 (1959–66) vol I, Art 21, p 409, paras 26–8). 28

  See para 10.08. Since the majority is absolute or qualified based on a definite number of states, the abstentions, absences, or non-participation do not reduce the majority required: [1986] UN Juridical YB 274, 275. 29

  ibid. In general, Assembly resolutions and decisions are recommendatory in nature. Resolutions or decisions that produce binding effects include those relating to the adoption of the scale of assessments, the budget, and the internal administration and management of the organization. Such resolutions or decisions are usually adopted under Art 17 of the UN Charter. 30

  GA Rules of Procedure, Rule 67. The presiding officers have been urged to open meetings at the scheduled time (Annex IV, para 67; and Annex VI, para 7). Some Main Committees start their meetings without observing the quorum at all (Fitschen, ‘Article 21’ in Simma et al (eds), n 11, 688, at 707). 31

  GA Rules of Procedure, Rule 67.

32

  GA Rules of Procedure, Rule 108.

33

  GA Rules of Procedure, Rule 87. The roll-call shall be taken in the English alphabetical order of the names of members, beginning with the member whose name is drawn by lot by the President. The result of the voting is inserted in the record in the English alphabetical order of the names of the members. 34

  At its 22nd session, the General Assembly, by GA Res 2323 (XXII) (1967), decided to amend its rules to take into account the installation of mechanical means of voting. 35

  In the case of a recorded vote, the General Assembly shall, unless a representative requests otherwise, dispense with the procedure of calling out the names of the members: GA Rules of Procedure, Rule 87(b).

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36

  GA Rules of Procedure, Annex IV, para 84 (Conclusions of the Special Committee on the Rationalization of the Procedures and Organization of the General Assembly, approved in GA Res 2837 (XXVI) (1971). 37

  The last roll-call vote was on 9 December 1992. UN RP Supp no 10 (2000–09) vol II, Art 18, p 2, para 2. This vote was on the question of Antarctica GA Res 47/57 (1992). The States Parties to the Antarctic Treaty (and many other members) did not participate in the roll-call vote because they believed the issue should have been dealt only on a consensus basis (UN Doc A/47/PV.81, pp 62–5). Roll-call voting is still practiced in the Main Committees, especially when voting is conducted in conference rooms with mechanical means for voting (Fitschen, n 30, 412). 38

  [2003] UN Juridical YB 533. In the period 2000–9, the General Assembly adopted 77 per cent of its 3,212 resolutions without a vote, and 821 of the 830 decisions during the same period were adopted without a vote. UN RP Supp no 10 (2000–09) vol II, Art 18, pp 8–9, para 22. During the 19th session, decision-making by consensus was used to avoid applying Art 19 to several member states in arrears with their contributions to the regular budget. See also ch 14, ‘The Financing of the United Nations’, section 6.7, ‘Arrears’. The use of the consensus procedure originated in the Committees. It was first officially introduced in the Committee on the Peaceful Uses of Outer Space in 1961 (Fitschen, n 30, 413). Other examples of consensus being the preferred mode of decision-making include the UN Conference on the Law of the Sea (UNCLOS) (GAOR 28th Session, Supp no 30 (1973), 24) and the Fifth Committee. See also ch 14, ‘The Financing of the United Nations’, section 6.7, ‘Arrears’. 39

  [2005] UN Juridical YB 457.

40

  GA Rules of Procedure, Annex IV, para 104.

41

  See also Fitschen, n 30, 412. Fitschen observes that it had become apparent that resorting to a vote does not necessarily lead to the solution to world problems that require the commitment of all states. 42

  Wolfrum, n 11, 325.

43

  In the UN Repertory, decisions or resolutions adopted by consensus and those adopted ‘without a vote’ are considered as a whole as decisions or resolutions adopted ‘without a vote’. 44

  Fitschen, n 30, 413.

45

  See, eg, the use of the secret ballot in the Second Committee regarding the selection of the site for the UN Industrial Development Organization (1966): [2005] UN Juridical YB 458. 46

  It does not appear in the GA Rules of Procedure, but it may be considered analogous to the adjournment of the debate on the item under discussion (Rule 74). 47

  The first use of this method was in the 38th session, when Norway tabled a motion that no action be taken on an Iranian proposal that the Assembly not approve the credentials of Israel. The Legal Counsel affirmed the legality of the method in accordance with Rule 74 ([1983] UN Juridical YB 174. Fitschen, n 30, 414–15). 48

  GA Rules of Procedure, Rule 129.

49

  ibid. Permission to speak on the motion for division shall be given only to two speakers in favour and two speakers against. 50

  ibid.

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51

  [2003] UN Juridical YB 533. This is in keeping with the desire to achieve consensus wherever possible. The practice is for the Chairman or President to announce that ‘in the absence of any objection’, he/she may take it that the Committee or plenary wishes to adopt the proposal or amendment without a vote. Any delegation may object, or request a vote on the proposal as a whole. 52

  GA Rules of Procedure, Rule 129.

53

  GA Rules of Procedure, Rules 75 and 117 (Committees). The ‘item under discussion’ need not be an entire agenda item. It may be a sub-item, a proposal, a set of proposals, or an amendment to a proposal. When a motion for closure is made, the President may need to ascertain the scope of the motion. It should usually be assumed that the motion is ‘intended to have the broadest effect it can sensibly be given, ie, to close debate on as much of the agenda item as possible’ ([1983] UN Juridical YB 174, at 175. See also [1962] UN Juridical YB 246). 54

  GA Rules of Procedure, Rules 75 and 117 (Committees). The President may limit the time to be allowed to speakers under these rules. 55

  ibid.

56

  [1983] UN Juridical YB 174, 175. The motion for closure may expressly provide otherwise. 57

  GA Rules of Procedure, Rules 80 and 122 (Committees), 89 and 129 (Committees), 91 and 131 (Committees), 74 and 116 (Committees), 79 and 121 (Committees), 78 and 120 (Committees), 73 and 115 (Committees) and 88 and 128 (Committees). Normal procedural motions include the withdrawal of a proposal, the immediate reintroduction of a proposal, the division of a proposal, a motion that there be no vote on a proposal after another has been acted on, a motion to adjourn the debate. Other proposals relating to procedures not specified in the Rules of Procedure, such as the referral of an item to an ad hoc or standing body, should be considered substantive proposals and not be allowed after closure of the debate: [1983] UN Juridical YB 174, at 175. 58

  GA Rules of Procedure, Rule 73 and 115 (Committees). See also ECOSOC Rules of Procedure, Rule 45. The prohibitions on the making of statements or introducing new substantive proposals after the closure of the debate are usually not enforced as strictly when the debate closes in this informal manner: [1983] UN Juridical YB 174, at 175. 59

  GA Rules of Procedure, Rules 88 and 128 (Committees).

60

  GA Rules of Procedure, Annex IV, para 79.

61

  GA Rules of Procedure, Rules 71 and 113 (Committees).

62

  ibid.

63

  ibid.

64

  This is the period between the time the presiding officer actually initiates the voting by calling for the casting of votes on a particular question and the announcement of the results of that particular vote. Where there is a series of votes, the rule against interruptions is not intended to cover the entire period during which several votes are taken, including intervals between such votes, such as two ballots for the same post ([1983] UN Juridical YB 174, at 176). 65

  GA Rules of Procedure, Rules 79 and 121 (Committees). Rules 77 and 119 (Committees) define the procedural motions that take precedence: (i) to suspend the meeting; (ii) to adjourn the meeting; (iii) to adjourn the debate on the item under discussion; (iv) to close

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the debate on the item under discussion. These procedural motions are subject to points of order (Rule 71). 66

  GA Rules of Procedure, Rules 91 and 131 (Committees) provide that the Assembly or Committee shall vote in the order of submission, ‘unless it decides otherwise’. 67

  This is because there would be ‘no utility in establishing subsidiary organs or expert bodies to prepare recommendations if those recommendations were to rank only after the proposals of States’: [1976] UN Juridical YB 181. Nonetheless, there have been some instances where the Fifth Committee has accorded priority to proposals by member states even though they were submitted after proposals from the Committee on Contributions (UN Doc A/C.5/SR.41, para 7 and [1976] UN Juridical YB 183). 68

  GA Rules of Procedure, Rule 91 and 131 (Committees).

69

  GA Rules of Procedure, Rules 90 and 130 (Committees).

70

  ibid.

71

  GA Rules of Procedure, Rules 88 and 128 (for Committees). This Rule evidently does not apply when the vote is taken by secret ballot. After the President has announced the beginning of voting, no representative shall interrupt the voting, ‘except on a point of order in connection with the actual conduct of the voting’. The explanation is given from the delegation’s seat, not from the rostrum (GA Rules of Procedure, Annex V, para 11). 72

  It would be unusual for the President to limit explanations to only before a vote ([1983] UN Juridical YB 174, at 176). On the absolute nature of the right to explain a vote, see ECOSOC Rules of Procedure, Rule 62. If there is a series of votes, the President has the discretion to allow explanations between each vote (ibid). 73

  GA Rules of Procedure, Annex V, para 6, Decision 34/401 (1979) on the rationalization of the procedures and organization of the General Assembly. See also GA Rules of Procedure, Annex IV, Conclusions of the Special Committee on the Rationalization of the Procedures and Organization of the General Assembly, paras 74–6. This time limit is not always respected. 74

  GA Rules of Procedure, Rule 88.

75

  GA Rules of Procedure, Annex V, para 7, Decision 34/401 (1979) on the rationalization of the procedures and organization of the General Assembly. 76

  Ruling of the President at the 15th session (GA (XV/2), 993rd plenary meeting, para 133), UN RP Supp no 3 (1959–66) vol I, Art 21, p 409, para 25. A representative had asked for the vote of his delegation to be rectified after the names of the delegations had been called and before the announcement of the result of the vote. In another example, a request to change the result of a roll-call vote after the vote was deemed inadmissible: [1984] UN Juridical YB 159. 77

  In practice the locking of the machine is announced by the President or Chair to offer delegations a last chance to check their vote (Fitschen, n 30, 412). 78

  Such a footnote usually reads: ‘Subsequent to the vote, the representative of… announced that he had been unable to participate in the vote but that, if present, his delegation would have cast an [affirmative] [negative] vote’ ([1984] UN Juridical YB 159). 79

  If a sufficient number of members agree, a new vote is taken in which the member state concerned can then participate and the result of which supersedes the earlier vote ([1984] UN Juridical YB 159, at 160). 80

  GA Rules of Procedure, Rules 92 and 103 (Committees).

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81

  GA Rules of Procedure, Annex VI, para 16.

82

  See also ch 15, ‘The United Nations Secretariat and Secretary-General’, section 1.2, ‘Relationship between the Secretariat and the Secretary-General’. Art 6(2) of the League of Nations Covenant stated, ‘the Secretary-General shall be appointed by the Council with the approval of the majority of the Assembly’. The UN Charter reverses the procedure. Although the Charter version may appear to shift the power in favour of the General Assembly, the actual power lies with the Security Council, since it controls the choice of candidate presented to the Assembly. See also Fiedler, ‘Article 97’ in Simma et al (eds), n 11, 1025. 83

  GA Res 11/1 (1946).

84

  At the time of the appointment of the first Secretary-General, the General Assembly agreed to hold a secret ballot in a public meeting (General Assembly Official Records (1/1), 20th plenary meeting, 1 February 1946, 304). For Secretaries-General Lie, Hammarsjköld, and U Thant, the General Assembly conducted secret ballots. Since Secretary-General Waldheim, the appointment has been made by acclamation: Waldheim (GA Res 2903 (XXVI)), de Cuéllar (GA Res 36/137), Boutros-Ghali (GA Res 46/21), Annan (GA Res 51/200), and Ban (General Assembly Official Records, 61st session, 31st plenary meeting, 13 October 2006, UN Docs A/61/PV.31, 2; A/61/L.3). For the unusually transparent procedure for the election of António Guterres as Secretary-General in 2016, see ch 15, ‘The United Nations Secretariat and Secretary-General’, section 1.2, ‘Relationship between the Secretariat and the Secretary-General’. 85

  The election of the President of the Assembly is provided for in Art 21 of the UN Charter. From 2000–9, the President was elected by acclamation: UN RP (2000–09), vol II, Art 21, para 7; cf GA Rules of Procedure, Rule 92. 86

  This is in accordance with the amendment to Rule 30 of the GA Rules of Procedure and has been the practice since 2002 (UN RP Supp no 10 (2000–09) vol II, Art 21, p 4, para 8). 87

  GA Rules of Procedure, Annex I, para 39.

88

  Art 8, ICJ Statute. For other courts, such as the International Criminal Tribunal for the former Yugoslavia (ICTY), the Secretary-General passes the names of candidates to the Security Council, which establishes a list of candidates. The President of the Security Council forwards the list of candidates to the President of the General Assembly. From this list, the General Assembly elects the judges with ‘an absolute majority of the votes’. See ch 29, ‘The International Court of Justice’, section 2, ‘The Bench’. 89

  Art 10(1), ICJ Statute.

90

  Cf Schermers and Blokker, International Institutional Law: Unity within Diversity (4th rev edn, 2003), paras 818 and 821. See [1984] UN Juridical YB 173–6 (para 9 of the memorandum by the Secretary-General on the procedure to be followed in ICJ elections UN Doc A/39/354): ‘The consistent practice of the United Nations has been to interpret the words “absolute majority” as meaning a majority of all electors, whether or not they vote. The electors in the General Assembly are all the Member States, together with the three nonmember States mentioned in paragraph 5 above which are parties to the Statute of the Court. Accordingly, as at the date of the present memorandum, eighty-one (81) votes constitute an absolute majority in the Assembly.’ 91

  See ch 3, ‘The Security Council’, section 6, ‘Voting’.

92

  UN Charter, Art 27:

1.  Each member of the Security Council shall have one vote.

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2.  Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members. 3.  Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting. 93

  UN Charter, Art 109: 1.  A General Conference of the Members of the United Nations for the purpose of reviewing the present Charter may be held at a date and place to be fixed by a two-thirds vote of the members of the General Assembly and by a vote of any nine members of the Security Council. Each Member of the United Nations shall have one vote in the conference. 2.  Any alteration of the present Charter recommended by a two-thirds vote of the conference shall take effect when ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations including all the permanent members of the Security Council. 3.  If such a conference has not been held before the tenth annual session of the General Assembly following the coming into force of the present Charter, the proposal to call such a conference shall be placed on the agenda of that session of the General Assembly, and the conference shall be held if so decided by a majority vote of the members of the General Assembly and by a vote of any seven members of the Security Council.

Art 109(1) was amended to read ‘nine’ instead of ‘seven’ following the enlargement of the Security Council membership in 1965. Art 109(3) was not amended because it had become obsolete. 94

  Rule 40 provides that voting shall be in accordance with the relevant Articles of the Charter and the Statute of the ICJ. Rules 32–36 and 38 concern voting procedure. 95

  For the historical development of the voting system in the Council, see Zimmermann, ‘Article 27’ in Simma et al (eds), n 11, 875–83. 96

  Cf Art 18(2) and (3) of the UN Charter, defining ‘important questions’ for the purposes of voting in the General Assembly. ‘Procedure’ appears in several places in the Charter, including Art 36(1) and (2), but it refers to inter-state procedures rather than procedure of the Council. 97

  In 1947, the General Assembly asked its Interim Committee to report on the problem of voting in the Council (GA Res 117 (II) (1947)). The report was issued in UN Doc A/578 (1948) and resulted in GA Res 267 (III) (1949), recommending to the Council that the decisions in an annex to that resolution be deemed ‘procedural’. 98

  See, eg, the reports of the Open-Ended Working Group on the question of equitable representation on and increase in the membership of the Security Council and other matters related to the Security Council, which suggested issues that should be deemed ‘procedural’ (UN Doc A/54/47 (2000), Annex VIII; UN Doc A/55/47 (2001), Annex IV). By 2003, the Working Group reported that ‘[w]hat constitutes “procedural” matters, in terms of Article 27, paragraph 2, of the Charter, should be established by an updating of the annex to General Assembly resolution 267 (III) and should be applied by the Council’ (UN Doc A/58/47 (2003)).

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99

  Zimmermann, n 95, para 94. See also section 3.4, ‘Veto’.

100

  This is because the Council does not tend to indicate whether a matter is procedural or not, especially where the decision is adopted unanimously or by consensus, or all the permanent members vote in favour. The Repertoire of Practice of the Security Council (2008–09) does not record any instances of voting on procedural matters. 101

  For analysis of practice under Art 27(2), see Zimmermann, n 95, paras 101–31. Such ‘procedural matters’ include: decisions related to the agenda or conduct of business of the Council; invitations to non-members, Secretariat officials, representatives of UN organs and bodies, and other persons who can provide assistance to the Council to participate in proceedings; convocation of a special session or special emergency session of the General Assembly. 102

  ibid, paras 106–14. The non-procedural characterization applies to subsidiary organs that may, eg, render legally binding decisions (eg, sanctions committees, ad hoc criminal tribunals) or exercise Chapter VI or VII powers (eg, the Peacebuilding Commission, peacekeeping operations, territorial administrations). The procedural characterization applies to standing committees and working groups that do not possess the competence to render binding decisions (eg, the Committee of Experts, the Commission on the Admission of New Members, the Ad Hoc Working Group on Conflict Prevention). 103

  For supporting practice, see Zimmermann, n 95, paras 115–31. See further section 3.4, ‘Veto’. 104

  For example, a decision on inviting a non-member of the Council to participate under Art 31 of the UN Charter may involve consideration of substantive questions, but the decision itself is considered procedural. 105

  Zimmermann, n 95, paras 133–4.

106

  Statement by the Delegations of the Four Sponsoring Government on Voting Procedure in the Security Council, United Nations Conference on International Organization Documents, vol II, 711–14, II.2. Zimmermann, n 95, paras 137–41. See, eg, UNSC RP (1946–51), ch IV Voting, Art 27, p 161. 107

  Statement by the Delegations of the Four Sponsoring Government on Voting Procedure in the Security Council, United Nations Conference on International Organization Documents, vol II, 711–14, II.2. 108

  Sievers and Daws, The Procedure of the UN Security Council (4th edn, 2014), 320.

109

  The interpretation is by ‘presidential ruling’ under Rule 30 of the Provisional Rules of Procedure. 110

  Zimmermann, n 95, para 159. This is because permanent members and others informally agree on whether certain issues are procedural or not. 111

  Security Council Veto List, available at http://research.un.org/en/docs/sc/quick/.

112

  ibid. There is, of course, the possibility of a ‘veto’ by the elected 10 members (‘E10’) of the Security Council. If the P5 agree, they still require four additional votes from the E10, since resolutions need nine affirmative votes to pass. It is therefore theoretically possible that the E10 could block joint action by the P5 if they so choose, though this has yet to happen in practice (Bellamy and Dunne, ‘Elected Security Council Members: Power, Process, Purpose’, Ethics and International Affairs, 23 October 2012, available at http:// www.ethicsandinternationalaffairs.org/2012/elected-security-council-members-powerprocess-purpose/).

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113

  In San Francisco, participants submitted a memorandum containing 23 questions concerning the exercise of the veto (United Nations Conference on International Organization Documents, vol XI, 699–709, cited in Wilson, The United Nations and Collective Security (2014), 28). The four sponsors of the veto proposal issued a joint statement emphasizing the ‘primary responsibilities of the permanent members’, noting that ‘they could not be expected…to assume the obligation to act in so serious a matter as the maintenance of international peace and security in consequence of a decision in which they had not concurred’ (United Nations Conference on International Organization Documents, vol XI, 711–14, cited ibid). 114

  See, generally, Webb, ‘Deadlock or Restraint? The Security Council Veto and

the Use of Force in Syria’ (2014) 19 JCSL 3. 115

  Okhovat, ‘The United Nations Security Council: Its Veto Power and its Reform’, CPACS Working Paper No 15/1, December 2011, 12. 116

  It has, however, in respect of the situation in Syria, vetoed six resolutions since 2011. See, eg, UN Docs S/2011/612, 4 October 2011; S/2012/77, 4 February 2012; S/2012/538, 19 July 2012; S/2014/348, 22 May 2014; S/2016/846, 8 October 2016; and S/2016/1026, 5 December 2016. It has also vetoed a resolution in relation to the situation in the Ukraine (UN Doc S/2014/189, 15 March 2014). 117

  It has joined the Russian Federation in five of the six vetoes on draft resolutions on Syria (as of December 2016). 118

  The last time these permanent members used the veto, alongside the US, was to prevent Security Council condemnation of the US invasion of Panama (UN Doc S/21048, 22 December 1989). 119

  In February 2011, President Obama vetoed a draft resolution condemning Israeli settlements in the West Bank as illegal (UN Doc S/PV.6484 (2011)). In December 2016, the US abstained from a resolution on Israeli settlements (UN Doc S/2016/1026 (2016)). 120

  Records exist of threatened vetoes only if a draft resolution is circulated as a Council document and discussed by the Council. 121

  For example, France threatened to veto a resolution on expressly authorizing military force against Iraq that the US, the UK, and Spain had planned to present to the Council in early 2003 (Okhovat, n 115, 3). 122

  In 2013, Saudi Arabia declined its elected seat on the Council, stating that it would not sit on the Council ‘until the Council is reformed and enabled, effectively and practically, to carry out its duties and responsibilities in maintaining international peace and security’ (Statement of the Ministry of Foreign Affairs on Saudi Arabia’s apology for not accepting Security Council membership, Annex to the letter dated 12 November 2013 from the Permanent Representative of Saudi Arabia to the United Nations addressed to the Secretary-General, UN Doc A/68/599 (2013)). 123

  For example, in 2010, intergovernmental negotiations on ‘the question of equitable representation and increase in the membership of the Security Council and other matters related to the Security Council’ collected proposals from member states. Suggestions regarding the veto power included: setting aside a veto by a vote of the absolute majority of the General Assembly, or by the Council itself by a vote of two-thirds of its members (Philippines); and requiring two negative votes to prevent the adoption of a Council decision (Venezuela). Letter and text from the Chair of the Intergovernmental Negotiations on Security Council Reform and Annex, 10 May 2010, 6.

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124

  UN Doc A/56/565 (2004), para 256.

125

  Costa Rica, Jordan, Liechtenstein, Singapore, and Switzerland.

126

  These included: ‘Explaining the reasons when resorting to a veto or declaring its intention to do so, in particular its consistency with the Charter of the United Nations and international law. A copy of the explanation should be circulated as a Security Council document to all Members of the Organization; Refraining from using a veto to block Council action in situations involving serious allegations of genocide, crimes against humanity and grave breaches of international humanitarian law; Establishing a practice, in appropriate cases, of declaring, when casting a negative vote on a draft resolution before the Council that such a negative vote shall not constitute a veto in the sense of Article 27, para 3 of the Charter.’ The Small 5 reiterated these proposals in a draft resolution in 2012 (UN Doc A/66/L.42), but later withdrew the resolution under pressure (Statement of Switzerland on behalf of the Small Five in the General Assembly on 16 May 2012). Switzerland announced the official launch of the new group of 22 states called ACT (the Accountability, Coherence, and Transparency Group) on 2 May 2013 at the UN Headquarters in New York. 127

  In November 2012, during a meeting on working methods in the Security Council, seven states (France, Liechtenstein, Singapore, Switzerland, Malaysia, Slovenia, and Spain) remarked on the need for the five permanent members of the Security Council to refrain from the use of veto in situations of genocide, crimes against humanity, and war crimes. 128

  The meeting in the Security Council to consider the note by the President of the Security Council (S/2010/507) and the letter dated 19 November 2012 from the Permanent Representatives of India and Portugal to the United Nations (S/2012/853). France made similar remarks in the open debate convened by Guatemala on 17 October 2012 (S/PV. 6849). In 2013, the French Minister for Foreign Affairs, Laurent Fabius, explained: ‘In concrete terms, if the Security Council were required to make a decision with regard to a mass crime, the permanent members would agree to suspend their right to veto. The criteria for implementation would be simple: at the request of at least 50 member states, the United Nations [S]ecretary [G]eneral would be called upon to determine the nature of the crime. Once he had delivered his opinion, the code of conduct would immediately apply. To be realistically applicable, this code would exclude cases where the vital national interests of a permanent member of the Council were at stake’ (Fabius, ‘A Call for SelfRestraint at the UN’, New York Times (4 October 2013)). The French proposal was expressly cited by France, Rwanda, Jordan, Luxembourg, and Lithuania during the May 2014 debate in the Council on the proposed referral of the situation in Syria to the ICC (S/ PV.7180 (22 May 2014)). In September 2015, the French President announced that France would not use the veto in cases of mass atrocities (Address by President François Hollande during the General Debate, President of the French Republic, 28 September 2015). During the 70th session of the General Assembly, France, Mexico, and civil society partners organized a meeting on the French–Mexican initiative on framing the use of veto in cases of mass atrocities. As of 21 October 2015, the initiative was supported by 80 countries. 129

  Krisch, ‘Informal Reform in the Security Council’ in United Nations Reform Through Practice: Report of the International Law Association Study Group on United Nations Reform (ed Wilde, 2011), 42, at 46. The Small 5 suggested that the written explanation should be circulated as a Security Council document to all member states (UN Doc A/66/L. 42 (2012)). 130

  See para 10.56.

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131

  Cf Arts 18(2) and 67(2), which refer to members ‘present and voting’, and thus abstentions are not counted as either affirmative or negative votes. 132

  Zimmermann, n 95, para 169.

133

  ibid, para 171.

134

  The Council has held sessions where seats have been vacant, such as 14 July–2 September 1990, when Rwanda was unrepresented and resolutions were adopted in its absence. 135

  Zimmermann, n 95, paras 182–90.

136

  ‘By abstaining, a member does not signify its objection to the approval of what is being proposed; in order to prevent the adoption of a resolution requiring unanimity of the permanent members, a permanent member has only to cast a negative vote’ (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) ICJ Rep 1971, p 16, para 22). 137

  This practice is less common than abstention. It has been used most often by China (Bailey and Daws, The Procedure of the UN Security Council (3rd edn, 1998), 258–9). See also France’s non-participation in the vote on draft SC Res S/1999/1215 (1999) (later SC Res 1280). 138

  Gross, ‘Voting in the Security Council: Abstention from Voting and Absence from Meetings’ (1951) 60(2) Yale Law Journal 209, 237ff. Zimmermann suggests that an involuntary absence by a permanent member (eg, delay, prevention from attending) should prevent the Council from making decisions under Art 27(3) (Zimmerman, n 95, para 200). 139

  For example, a party to a dispute is obliged to abstain from recommendations to refer a legal dispute to the ICJ under Art 36(3). 140

  In practice, the proviso is not relevant to Art 38, because any action by the Council requires the consent of all the parties to a given dispute. 141

  For example, whether a draft decision is compatible with Art 2(7) of the UN Charter (Zimmermann, n 95, para 209). 142

  See ch 28, ‘Peaceful Settlement of Disputes’, section 2.2.2, ‘Referral of disputes and situations to the Security Council’. Zimmermann argues that dispute should be given a narrow interpretation in Art27(3) (Zimmerman, n 95, para 229). 143

  There is the risk that a member of the Council may attempt to portray other member(s) as parties to a dispute to prevent them from exercising their voting rights on an issue. The somewhat nebulous definition of ‘dispute’ feeds into this risk. See Obligations concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v United Kingdom) (Preliminary Objections), 5 October 2016. 144

  Cf the Rules of Procedure of the General Assembly, which use the term ‘explanations of vote’ (Rule 88). 145

  Sievers and Daws, n 108, 357. The prior agreement arises from consultations of the whole or among the members’ political coordinators. 146

  For example, non-Council member states (who speak after Council members have spoken) and the Secretary-General (eg, S/PV.5511 (2006)). 147

  Sievers and Daws, n 108, 358. A ‘presidential text’ is co-sponsored by all 15 members of the Council. Statements are discouraged because they undermine the appearance of consensus.

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148

  For example, S/PV.4344 (2001) (Oil for Food Programme—statements by the UK, US, and Tunisia). 149

  S/PV.3351 (statement by the US).

150

  Sievers and Daws, n 108, 359. See, eg, statements of the representatives of Russian and China following their veto of draft resolution S/2016/1026 (S/PV.7825, 7–8, 13). 151

  Sievers and Daws, n 108, 359.

152

  The resolution may be adopted (‘There were 14 votes in favour and one abstaining. The draft resolution has been adopted as resolution 2244 (2015)’, eg, S/PV.7541); vetoed (‘There were 11 votes in favour, 1 vote against and 3 abstentions. The draft resolution has not been adopted, owing to the negative vote of a permanent member of the Council’, eg, S/PV.7498); not adopted (‘There were 8 votes in favour, 2 votes against and 5 abstentions. The draft resolution has not been adopted, having failed to obtain the required number of votes’, eg, S/PV.7354); noted as a procedural matter (‘There were 10 votes in favour, 4 votes against and 1 abstention. The provisional agenda has been adopted’, eg, S/PV.5526). 153

  This is similar to the practice in the General Assembly with respect to Art 18 of the UN Charter. 154

  A permanent member may expressly dissociate itself from a decision adopted by consensus without blocking the consensus. See, eg, the statement of China in S/PV.1764, 2 (meeting of 28 February 1974) regarding a resolution on the Iraq/Iran boundary dispute: ‘The Chinese delegation hopes that Iran and Iraq will arrive at a fair and reasonable settlement of their boundary dispute through negotiations in accordance with the five principles of peaceful coexistence. Therefore, the Chinese delegation does not favour United Nations involvement in any form in a boundary dispute. In view of this position, the Chinese delegation dissociates itself from the above consensus of the Security Council.’ 155

  For example, questions relating to the agenda, suspensions of meetings, invitations to participate, referral of matters to subsidiary organs, composition of subsidiary organs, date of an election to fill an ICJ vacancy, recommendation for the appointment of the SecretaryGeneral, and decisions taking the form of Presidential Statements on behalf of the Council and decisions recorded in letters or notes by the President (Zimmermann, n 95, para 165). 156

  Art 8, ICJ Statute.

157

  Art 10(1), ICJ Statute.

158

  See ch 29, ‘The International Court of Justice’.

159

  See para 10.30.

160

  UN Charter, Art 67(1). See ch 5, ‘The Economic and Social Council’, section 2.5, ‘Voting’. 161

  Arts 18(1) (General Assembly), 27(1) (Security Council), and 89(1) (Trusteeship Council) of the UN Charter. The principle of ‘one Member, one vote’ reflects the principle of the sovereign equality of all UN member states enshrined in Art 2(1) of the Charter. 162

  The term commences on 1 January and ends on 31 December (GA Rules of Procedure, Rule 139). Any UN member state that is not an ECOSOC member may, upon the invitation of ECOSOC, participate in the deliberations of ECOSOC ‘without vote’ (UN Charter, Art 69 and ECOSOC Rules of Procedure, UN Doc. E/5715/Rev.2 (1992), Rule 72(3)). 163

  There is also no weighted voting, unlike in the World Bank, the International Monetary Fund (IMF), the International Fund for Agricultural Development (IFAD), and regional development banks (Schermers and Blokker, n 90, 538–42). This may be one of the main reasons why the Bretton Woods institutions and not ECOSOC have become the UN focal

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point in the field of economic cooperation (Chaitidou, ‘Article 67’ in Simma et al (eds), n 11, 1728, at 1729–30). 164

  ECOSOC Rules of Procedure, Section XI and Rule 58 (identical to Art 67(1) of the UN Charter). Chaitidou, n 163, 1730. 165

  ECOSOC Rules of Procedure, Rule 27(1). An example of a variation in the rules is the vote of the President. The President of ECOSOC has no vote in ECOSOC, and may delegate his/her vote to another member of the delegation (ECOSOC Rules of Procedure, Rule 23). However, when the President was acting as Chairman of a small subsidiary body (the now defunct Ad Hoc Committee on Operation and Organization of the Council and its Commissions), he had the right to vote in the case of a tie (ECOSOC Res 295 B (XI)). Art 67 of the UN Charter does not apply to decision-making by functional commissions established under Art 68 (see section 4.4, ‘Decision-making by commissions’). 166

  UN Charter, Art 67(2), duplicated in ECOSOC Rules of Procedure, Rule 60(1).

167

  See section 2, ‘Nature and scope’.

168

  ECOSOC Rules of Procedure, Rule 60(2).

169

  ibid. When ECOSOC adopted the Rules of Procedure, various views on the significance of abstentions were expressed in the Committee on Procedure. One view was that ‘representatives who abstained showed that they disinterested themselves in a question’; others believed that ‘abstaining representatives implicitly accepted the decision’, while some thought that an ‘abstention indicated an attitude of absolute neutrality’ (UN RP (1945–54), vol III, Art 67, p 465, para 23, E/AC.28/SR.17, 3 and 4). Members cannot cast votes in absentia (E/AC.2VSR.138, 14 and UN RP Supp no 2 (1954–55) vol II, Art 67, pp 117–18, para 10). This is different from the approach taken in the Security Council and General Assembly. 170

  ECOSOC Rules of Procedure, Rule 41. Since ECOSOC has 54 members, the quorum for meetings is 18, and for decision-making it is 28. As a result, depending on the number of Members present and voting, ECOSOC occasionally adopts decisions by a majority of fewer than 28 affirmative votes: see, eg, UN RP Supp no 9 (1995–99) vol IV, Art 67, p 2, para 3 (one resolution so adopted in the reporting period); UN RP Supp no 8 (1989–94) vol IV, p 2, para 4 (11 such resolutions adopted in the reporting period). ECOSOC rejected a proposal of the Secretary-General to introduce a qualified majority (two-thirds) requirement for reconsidering at the same session a proposal that was already adopted or rejected, as in Rule 81 of the Rules of Procedure of the General Assembly (UN RP (1945–54) vol III, Art 67, p 464, paras 17–18). 171

  ECOSOC Rules of Procedure, Rule 71.

172

  ECOSOC Rules of Procedure, Rules 69–70.

173

  ECOSOC Rules of Procedure, Rule 61(1). Roll-call is taken in the English alphabetical order of the names of members, beginning with the member whose name is drawn by lot by the President. As the same of each member is called, the representative shall reply ‘yes’, ‘no’, or ‘abstention’. 174

  From 1954–69, 91 per cent of resolutions were adopted by show of hands and only 3 per cent without a vote (UN RP Supp No 1–4 (1954–69), vol 2 and 3, Art 67). 175

  In 1995–9, no resolution was adopted in plenary meetings by a show of hands. Roll-call votes were taken on 11 resolutions and on one separate paragraph of a resolution: UN RP Supp no 9 (1995–99) vol IV, Art 67, p 2, para 4.

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176

  Roll-calls and recorded votes are inserted in the record of ECOSOC (ECOSOC Rules of Procedure, Rule 61(3)). 177

  ECOSOC Rules of Procedure, Rule 61(2). Unless a representative requests otherwise, in a recorded vote ECOSOC dispenses with the procedure of calling out members’ names. 178

  In 1995–9, recorded votes were taken on seven resolutions and two separate paragraphs of one resolution. No non-recorded votes were taken. UN RP Supp no 9 (1995– 99) vol IV, Art 67, p 2, para 4. 179

  In 1995–9, 283 of 301 resolutions, or 94 per cent of resolutions, were adopted without a vote (tacit consent). UN RP Supp no 9 (1995–99) vol IV, Art 67, p 2, para 4. These resolutions are also considered to be adopted unanimously. 180

  Art 67(2) of the UN Charter refers only to voting in ECOSOC. The legal basis for decisions without vote is ECOSOC’s power under Art 72(1) of the Charter to adopt its own Rules of Procedure. 181

  ECOSOC Rules of Procedure, Rule 59.

182

  Chaitidou, n 163, 1732–3. Observer states have no right to request a vote.

183

  Procedural and administrative matters include invitations extended under Art 69 of the Charter to UN member states to participate in ECOSOC deliberations, the establishment of sessional bodies, working parties and drafting committees, the programme of conferences, and the financial implications of ECOSOC decisions (UN RP (1945–54), vol III, Art 67, p 467, para 34). In its 1993 substantive session, ECOSOC decided to begin the practice of approving agreed conclusions at its coordination segment (E S C decision 1993/205 of 12 February 1993, E/ 1993/SR.3, UN RP Supp no 8 (1989–94) vol IV, Art 67, p 3, para 6). 184

  ECOSOC Rules of Procedure, Rules 3 and 4(b). Decisions by concurrence of the majority involve the President of ECOSOC communicating to all members, through the Secretary-General, the request and any observations that the Secretary-General may present. The request is granted if the majority of members concur within eight days of the communication. An alternative method for calling special sessions is where the President, with the concurrence of the Vice-Presidents and, as appropriate, in consultation with ECOSOC members, calls a special session (Rule 4(2)). 185

  ECOSOC Rules of Procedure, Rule 68. See also Rules 69–70 on the conduct of elections. 186

  The Council elected its officers at its organizational sessions in 1985, 1986, and 1987 by acclamation. However, at the organizational session in 1988, the President of the Council was elected by secret ballot and four Vice-Presidents by acclamation (UN RP Supp no 7 (1985–88) vol IV, Art 67, p 3, para 5). 187

  Art 67 of the UN Charter does not apply to the ‘commissions in economic and social fields and for the promotion of human rights, and such other commissions as may be required for the performance of its functions’ established by ECOSOC under Art 68. A legal opinion requested from the Secretary-General stated that Art 67 governed ECOSOC itself. Its commissions were governed by Art 68, which did not stipulate the form their voting procedure should take. ECOSOC could therefore adopt for its commissions such voting procedure as it saw fit (UN RP (1945–54) vol III, Art 67, p 468, para 40; E/AC.28/SR39, 3 and E/AC.28/L.13, 2).

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The functional commissions are: Statistical Commission, Commission on Population and Development, Commission for Social Development, Commission on the Status of Women, Commission on Narcotic Drugs, Commission on Crime Prevention and Criminal Justice, Commission on Science and Technology for Development, Commission on Sustainable Development, and the United Nations Forum on Forests. 188

  See the Rules of Procedure of the Functional Commissions of the ECOSOC (Rules 56– 65 (voting), 66–67 (elections), and 57 and 66 (decisions without a vote)). As the legal opinion of the Secretary-General observed, it would be inadvisable for the functional commissions to have voting rules more stringent than those applying to ECOSOC (UN RP (1945–54) vol III, Art 67, p 469, para 40). 189

  The rule on the principle of majority for functional commissions (Rules of Procedure of Functional Commissions, Rule 58) is in principle the same as that in ECOSOC (ECOSOC Rules of Procedure 60 and Art 67(2) of the Charter), but there is an exception for nongovernmental organizations (NGOs) proposing items for the agenda. An item shall be included in the agenda of the functional commission if it is adopted by a two-thirds majority of the members present and voting (Rule 5(4)(ii)). In the functional commissions, a majority of the representatives of members of the commission shall constitute a quorum under Rules of Procedure of Functional Commissions, Rule 40; cf ECOSOC Rules of Procedure, Rule 41. 190

  See, eg, Rules of Procedure of the Economic and Social Commission for Asia and the Pacific, E/ESCAP/CST/INF/4 (1998). The rules of procedure also apply to the subsidiary organs of the regional commissions, unless an organ adopts its own rules. The regional commissions are: Economic Commission for Africa (ECA); Economic and Social Commission for Asia and the Pacific (ESCAP); Economic Commission for Europe (ECE); Economic Commission for Latin America and the Caribbean (ECLAC); Economic and Social Commission for Western Asia (ESCWA).

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Part 2 The United Nations: What it is, 11 The Legal Personality of the United Nations Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): International organizations — Attribution — UN Charter — Subjects of international law

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(p. 383) 11  The Legal Personality of the United Nations 1.  Meaning of legal personality and basis for its possession by the United Nations 11.01 2.  Consequences of legal personality 11.13 3.  Domestic law 11.21 4.  Scope of legal personality 11.32 5.  Independent competence of subsidiary organs to rely on the UN’s legal personality in international law 11.45 Akande, ‘International Organizations’ in International Law (ed Evans, 2006), 280–6; Alvarez, International Organizations as Law-Makers (2005), 129–39; Amerasinghe, ‘International Legal Personality Revisited’ (1995) 47 ÖzöR 123; Amerasinghe, Principles of the Institutional Law of International Organizations (2nd edn, 2005), ch 3; Anzilotti, ‘Gli organi communi nelle Societa di Stati’ (1914) 8 Rivista di diritto internazionale 156; Barberis, ‘Nouvelle questions concernant la personalité juridique internationale’ (1983) 179 RCADI 145; Bederman, ‘The Soul of International Organizations: Legal Personality and the Lighthouse at Cape Spartel’ (1996) 36 Virginia JIL 351; Bekker, The Legal Position of Intergovernmental Organizations—A Functional Necessity Analysis of their Legal Status and Immunities (1994) 37–85; Bettati, Le droit des organisations internationales (1987), 20; Bettati, ‘Création et personnalité juridique des organisations internationales’ in A Handbook on International Organizations (2nd edn, ed Dupuy, 1998), 33; Bindschedler, ‘Die Anerkennung imp Volkerrecht’ (1961–2) 9 Archiv des Volkerrechts 387; Bowett, The Law of International Institutions (1963), 273–81; Broches, ‘International Legal Aspects of the World Bank’ (1959) 98(III) RCADI 323; Bowett, The Law of International Institutions (4th edn, 1982), 337; Feldman, ‘International Personality’ (1985-II) 191 RCADI 359; Carroz and Probst, Personalité juridique internationale et capacité de conclure des traites de L’ONU et des institutions specialisées (1953); Chesterman, Franck, and Malone, Law and Practice of the United Nations: Documents and Commentary (2008), 84–99; Collier, ‘The Status of an International Corporation’ in Multum non Multa: Fetschrift fur Kurt Lipstein (eds Feuerstein and Parry, 1980), 21; Dominicé, ‘Observations sur la personnalité juridique de droit interne des organisations internationales’ in Liber Amicorum Professor Ignaz Seidl-Hohenveldern in Honour of his 80th birthday (eds Hafner et al, 1998); Eagleton, ‘International Organization and the Law of Responsibility’ (1950) 76 RCADI 319 (on the UN), at 335–45; Ginther, Die völkerrechtliche Verantwortlichkeit internationaler Organisationen gegenuber Drittstaaten (1969); Higgins, Problems and Process: The International Law and How We Use It (1994, reprinted in 2004), 46–7, (on the UN) 47; Jenks, ‘The Legal Personality of International Organizations’ (1945) 22 BYIL 267; Jennings and Watts, Oppenheim’s (p. 384) International Law (vol I, 9th edn, 1992), pt 1, 18; Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems (1951), 336 and (on the UN in particular) ch 13; Kirgis, International Organizations in their Legal Setting (2nd edn, 1993), 19; Klabbers, An Introduction to International Institutional Law (2002), 49–60; Simma et al (eds), The Charter of the United Nations. A Commentary (3rd edn, 2012); Llanos-Mansilla, ‘Las organizaciones internationales como sujetos de Derecho internacional’ (1987) 8 Anuario Hispano-Luso-Americano de Derecho Internacionale 97; Morawiecki, ‘Legal Regime of the International Organisations’ (1986) 15 Polish YIL 71; Morgenstern, Legal Problems of International Organizations (1986), 24; Osakwe, ‘Contemporary Soviet Doctrine on the Juridical Nature of Universal International Organizations’ (1971) 65 AJIL 502; Pallieri, Diritto internazionale publico (1961), 178 et seq; Quadri, ‘Cours général de droit international public’ (1964) 113 RCADI 423; Rama-Montaldo, ‘International Legal Personality and Implied Powers of International Organizations’ (1970) 44 BYIL 111;

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Reinisch, International Organisations before National Courts (2000), 37–70, 175–7; Reuter, The Law of International Institutions (trans Chapman, 1958), 214 et seq; Reutersward, ‘The Legal Nature of International Organizations’ (1980) 49 Nordisk Tidsskrift for International Ret 14; Rouyer-Hameray, Les Competences implicites des organisations internationales (1962), 68 et seq; Sands and Klein, Bowett’s Law of International Institutions (6th edn, 2009), ch 15; Sarooshi, International Organizations and their Exercise of Sovereign Powers (2005); Schermers, ‘International Organizations’ in International Law, Achievements and Prospects (ed Bedjaoui, 1991), 72 et seq; Schermers and Blokker, International Institutional Law: Unity within Diversity (4th rev edn, 2003), paras 1562–82; Schlüter, Die innerstaatliche Rechtsstellung des internationalen Organisationen unter besonderer Berucksichtigung des Rechtslage in der Bundesrepublik Deutschland (Max-Planck-Institut fur auslandisches offentliches Recht und Volkerrecht No 57, 1972); Schreuer, ‘Internationale Organisationen’ in Österreichisches Handbuch des Völkerrechts (2nd edn, eds Neuhold, Hummer, and Schreuer, 1991), 157; Schwarzenberger, International Law (vol 1, 1957), 128 et seq; SeidlHohenveldern, ‘The Legal Personality of International and Supranational Organisations’ (1961) 21 Revue Egyptienne de droit international 35; Seidl-Hohenveldern, Das Recht der Internationalen Organisationen, einschliesslich der Supranationalen Gemeinschaften (1979); Sereni, Diritto internazionale (vol II, 1960), 801 et seq; Seyersted, ‘International Personality of Intergovernmental Organizations: Do their Capacities Really Depend upon their Constitutions?’ (1964) 4 Indian Journal of International Law 1; Seyersted, ‘Is the International Personality of Intergovernmental Organizations Valid vis-àvis Non-Members?’ (1964) 4 Indian Journal of International Law 234; Seyersted, ‘Objective International Personality of Intergovernmental Organizations: Do their Capacities Really Depend upon the Conventions Establishing Them?’ (1964) 34 Nordisk Tidsskrift for International Ret 3; Seyersted, ‘The Legal Nature of International Organizations’ (1982) 51 Nordisk Tidsskrift for International Ret 203; Siotti-Pinto, ‘Les sujets du droit international autres que les Etats’ (1932-III) 41 RCADI 251; Skubiszewski, ‘Le Conseil d’entraide economique et ses actes’ (1966) 12 AFDI 544, at 556–60; Tunkin, ‘The Legal Nature of the United Nations’ (1966-III) 119 RCADI 20; United Nations, Legislative Texts and Treaty Provisions concerning the Legal Status, Privileges and Immunities of International Organizations (vol I, 1959), ST/LEG/SER.B/10, United Nations publications, Sales No 60.V.2; vol II (1961), ST/LEG/SER.B/11, United Nations publications, Sales No 61.V.3); Weissberg, The International Status of the United Nations (1961); Wellens, Remedies against International Organizations (2002); White, The Law of International Organizations (2nd edn, 2005), ch 2; Whiteman, Digest of International Law (vol 1, 1963), 48; Wolfrum et al (eds), United Nations, Law, Policies and Practice (1995); Yasseen, ‘Création et personnalité juridique des organisations internationales’ in Manuel sur les organisations internationales (ed Dupuy, 1988), 33.

(p. 385) 1.  Meaning of legal personality and basis for its possession by the United Nations 1.1  Creation by states 11.01  The United Nations (UN) was created by its founding member states when they adopted the UN Charter.1 In consequence, the legal authority for its existence, status, and possession of legal personality is derived from the role of states as law-makers in the international system.2

1.2  Status as an international organization—distinct from the member states

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11.02  The UN is a public international organization. It was created by states, and it also functions in part through decisions made by states in the political organs and subsidiary organs. Nonetheless, at least as regards certain matters, it has a distinct will (volonté distincte), separate from the will of the entirety of the states that set it up.3 By this is meant an ability for the organization to act without necessarily having the agreement of its member states. It is not to suggest, however, that if no member states agree, the SecretaryGeneral could invoke separate legal capacity to act without their agreement. The SecretaryGeneral is often thought of as the embodiment of the organization, but his/her ability to act without the consent of the membership is somewhat constrained.4 The separate will is indicated in the way the organization acts independently from its members, as opposed to merely constituting a joint enterprise between them.5 Principal indications of this are (i) the manner in which (p. 386) decisions are made in the political organs and subsidiary organs when agreement of all member states is not required, and (ii) the existence of certain organs that function entirely separate from the member states, such as the Secretariat.

1.2.1  Manner of decision-making in political organs 11.03  In the political organs and subsidiary organs where decisions are made by member states, such decisions require not consensus but, rather, merely agreement between a subset of the membership. Decisions of the Security Council, the Economic and Social Council (ECOSOC), and the Trusteeship Council are necessarily, because of the limited composition of these organs, made without requiring the agreement of the majority of the UN membership.6 Even within their limited membership, such decisions do not require consensus, nor do decisions in the plenary General Assembly.7 Thus decisions adopted on the basis of votes by member states are routinely made without agreement to them by some, and sometimes even most, of the membership in each individual instance. 11.04  General agreement to the arrangement of decision-making that does not require the support of all member states was forthcoming by all members through their original acceptance of the UN Charter. All decisions of the political organs are decisions of the organization as a whole, and, provided they are validly made, member states have to respect their legal effect even if they did not participate in them or abstained or voted against them, and more broadly even if they make political objections to them.8 11.05  States that vote in favour of decisions in the political organs are acting in a dual capacity—dedoublement fonctionnel—both in their individual capacities and also, because of the collective significance of their acts as a decision of the UN, as agents for the international community as a whole. Members of each political organ participate as states, but the consequent decisions are of the organ as a whole. Some of these decisions may involve direct legal consequences for member states, for example decisions of the General Assembly on the apportionment of the organization’s expenses, and decisions of the Security Council adopted under Chapter VII of the Charter.9 More broadly, decisions often have operative effect within the organization, (p. 387) for example the decision of a principal organ to create a subsidiary organ, even if they are not targeted at particular states, and all members are bound to accept the decisions and their consequences.10 11.06  For example, in 2008 the General Assembly requested an Advisory Opinion from the International Court of Justice (ICJ) on whether the ‘unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo’ was ‘in accordance with international law’.11 Of the then 192 UN member states, only 77 voted in favour of the request, with six voting against, 74 abstaining, and 28 states being absent.12 Although whether the Assembly was acting within its powers in making this request, and whether the terms of the request fell within the Court’s advisory jurisdiction, were disputed by certain states, the fact that the request itself commanded the affirmative support of less than half of the UN membership was not itself relevant to the question of whether or not the decision

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was valid, the voting tally having constituted two-thirds of the UN members regarded as being ‘present and voting’ (abstentions not being included in this test).13

1.2.2  Organs functioning separately from member states 11.07  The other principal organs of the UN—the Secretariat and the ICJ—are more operationally distinct from member states.14 The Secretariat is made up of independent (p. 388) officials who act as staff of the organization and not of member states. Article 100 of the UN Charter states that: 1.  In the performance of their duties the Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization. They shall refrain from any action which might reflect on their position as international officials responsible only to the Organization. 2.  Each Member of the United Nations undertakes to respect the exclusively international character of the responsibilities of the Secretary-General and the staff and not to seek to influence them in the discharge of their responsibilities. 15

11.08  Under Article 2 of the Statute of the ICJ, members of the Court are ‘independent’.16 This independence operates with respect to not only the states of nationality of the judges, but also member states generally.17 In contrast to the political organs, then, in the Secretariat and the ICJ there is no direct role performed by states acting in a dual capacity.

1.3  Basis for legal personality 11.09  As established in the Reparation Advisory Opinion of the ICJ of 1949, the UN possesses international legal personality: it is a direct participant in the international legal system in being capable, in its own right, of enjoying rights and bearing obligations, of having conduct attributed to it, and of suing and being sued by states and other international organizations.18 11.10  Although the constitutions of some international organizations expressly provide for the possession of international legal personality, the UN Charter is silent on the issue.19 This omission was a deliberate decision of the drafters at San Francisco.20 As reported by the US delegation, the ‘Committee which discussed this matter was anxious to avoid any implication that the United Nations will be in any sense a (p. 389) “superstate”’.21 This was neutral as to the question of the possession of legal personality, however.22 The intention was that the issue of personality would ‘be determined implicitly from the provisions of the Charter as a whole’.23 Whereas express provision is one way in which legal personality can be conferred, it is not a prerequisite for such conferral.24 11.11  According to the ICJ in the Reparation Advisory Opinion, the UN possesses legal personality because this is necessarily implied by virtue of the functions that have been given to the organization.25 The basis of such implication was the existence of functions and rights which can only be explained on the basis of the possession of a large measure of international legal personality and the capacity to operate upon an international plane…. It must be acknowledged that its members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged.26

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11.12  The functions which were said to necessarily imply legal personality are set out in the provisions of the UN Charter that concern the organization itself rather than the behaviour of its member states exclusively (eg the prohibition in Article 2(4) (p. 390) concerning the threat or use of force),27 as well as those provisions in the Charter that have significance in domestic jurisdictions, for example the enjoyment of legal personality by the UN in the domestic law of member states, the conferral of which is obligatory under Article 104.28

2.  Consequences of legal personality 2.1  Legal separateness 11.13  Without legal personality the UN would be an unincorporated association: a collection of states that is, legally, nothing more than the sum of these states.29 The only issues of legal rights/powers, obligations, and responsibility would concern the member states individually and collectively, and not the organization in its own right.30 As an international organization, the UN would still be distinct from member states; possession of legal personality gives legal significance to this political matter—what is politically distinct is also legally distinct, captured and reflected in international law.31

2.2  Benefits 11.14  The benefits to the UN of possessing legal personality are bound up in the logic of the foundation of this personality: legal personality gives the organization the capacity it needs effectively to discharge the functions it has been given in the Charter. Part of this benefit is derived from the way that the personality is attached to the UN as a distinct actor: the functions of the UN are vested in the UN in its own right, and the vesting of these functions in this actor is a crucial aspect of the benefit.32 11.15  This is illustrated by the consequence of the findings of the Reparation Advisory Opinion. The possession of legal personality paved the way for the finding that the (p. 391) UN possesses a power in its own right to bring a claim for reparations.33 This means that in circumstances where a UN official is harmed in the course of his/her duties, the organization does not have to rely on the willingness of its member states to decide to bring a claim collectively themselves on the basis of their own personalities, which would be necessary if the organization lacked distinct legal personality.34 11.16  The mere possession of personality in international law does not in and of itself render the UN subject to the same substantive rights and obligations as the other main legal persons in the international legal system—states.35 As the ICJ stated in the Reparation Advisory Opinion, the UN’s possessing legal personality is not the same thing as saying it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State. Still less is it the same thing as saying that it is ‘a super-state’, whatever that expression may mean…. What it does mean is that it is a subject of international law and capable of possessing international rights and duties.36 11.17  Thus, the UN has legal capacity on the international level, vis-à-vis other international legal persons, such as states and other international organizations with legal personality.37

2.3  ‘Limited’ or ‘functional’ personality?

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11.18  In the Reparation Advisory Opinion, the Court stated that the UN was in possession of a ‘large measure’ of personality.38 This somewhat curious phrase is best understood as a statement concerning the substantive capacities of the organization, which are limited when compared to those of states and vary in degree considerably when compared with other international organizations, as opposed to international legal personality itself, which is not something that exists in degrees.39 Similarly, the term ‘functional personality’ that is sometimes used in this context reflects the way that the ‘powers which fill, or give substance to, the organization’s personality are limited and determined by the latter’s purposes and functions’.40

(p. 392) 2.4  Position in relation to states and other international legal persons 11.19  The UN’s legal personality is ‘objective’, that is, opposable not only to its member states, but also to non-member states and other international legal persons such as international organizations, which are therefore bound to treat it as a distinct actor in its own right and not as a collection of the legal personalities of its member states.41 The ability of the organization to compel states, and even possibly non-member states and international organizations, is derived from its powers rather than its possession of legal personality.42 Beyond obligations for states arising directly out of (p. 393) membership, states, other international legal persons, and private entities are not obliged to interact with the UN; when they choose to, however—for example, when entering into agreements—their engagement is on the basis of its existence as a distinct international legal person.43

2.5  Relationship to powers 11.20  Powers such as a treaty-making capacity do not flow from legal personality itself; rather, legal personality establishes that those powers that exist expressly or by necessary implication are vested in the UN as a distinct actor. The UN’s treaty-making power is, because of the possession of legal personality, a power of the organization in its own right, and treaties entered into by the organization are subject to the rules of international law.44

3.  Domestic law 11.21  The UN’s legal personality on the international plane is a matter of international law, by reference to what is specified in or implied by the UN Charter as regards the functions of the organization. The conferral of legal personality in domestic law is rendered obligatory for member states by express provisions of the UN Charter, and for contracting states by such provisions in the UN Convention on Privileges and Immunities; but the actual possession of municipal legal personality needs to be established according to the rules of the domestic legal system.45

(p. 394) 3.1  Position in international law—member states and parties to the Privileges and Immunities Convention 11.22  Two distinct treaties—the UN Charter and the 1946 UN Convention on Privileges and Immunities—contain obligations concerned with the conferral of legal personality in domestic law. Article 104 of the UN Charter states that the UN ‘shall 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’.46 This creates an international law obligation on the part of member states to provide the UN with legal personality in domestic law as necessary for the organization to function within the legal system of the country concerned.47

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11.23  The 1946 UN Convention on Privileges and Immunities, in addition to its treatment of the subject matter indicated in its title, also stipulates in Article 1 that ‘The United Nations shall possess juridical personality.’48 This provision refers to personality in domestic law.49

3.2  Position in international law—states and non-state territorial entities not parties to the Charter and/or 1946 Convention 11.24  Although the UN’s international legal personality is regarded as opposable to international legal persons generally (whether or not members of the organization), it is doubtful that the obligations in Article 104 of the UN Charter and Article I of the 1946 Convention are similarly opposable to non-parties to the Charter and the Convention respectively.50 However, nothing prevents non-contracting states and non-state territorial entities from conferring or agreeing to the existence of domestic legal personality, and this can be done as a matter of international law on the basis of a special agreement, as happened with Switzerland when it was a non-member.51 (p. 395) 11.25  Alternatively, the need for legal personality in the domestic plane can be implied in the functions granted to peace operations and other UN field missions by the Security Council. When the operation or mission is operating in a state or part of a state’s territory, the conferral of these functions can operate as an independent (or even exclusive) international legal basis for that state to confer the necessary legal personality as a matter of domestic law.52 11.26  In the unusual situation when the UN acts in territory that does not form part of the sovereign territory of any state, the international legal basis for its enjoyment of municipal legal personality can be derived by implication from the authority given to the mission by the Security Council.53 11.27  The practice of the United Nation Relief and Works Agency (UNRWA) in Gaza suggests that when the operation or mission is operating in non-state territory where a foreign state is engaged in military operations and/or conducting an occupation, the mission may enter into an agreement with that foreign state whereby the state permits the mission to carry out its international mandate (including powers that presuppose the enjoyment of municipal legal personality) and agrees that the relations (p. 396) between the two will be governed by the 1946 Convention (including the provision on municipal legal personality).54

3.3  Position in domestic law 11.28  The implementation of the international legal obligation to confer domestic legal personality has depended on the approach taken within each domestic legal system.55 Failure to recognize personality domestically where an obligation exists would mean breaching international law, and lack of conformity with the international obligation caused by deficiencies in municipal law is irrelevant to the question of whether or not the international obligation has been complied with.56 How the conferral of legal personality domestically has happened in each legal system has depended on the particular manner in which international treaty obligations are brought into national law as a matter of each system.57 (p. 397) 11.29  In some national legal systems, where certain treaty obligations have automatic effect in municipal law, the provisions in the UN Charter and the 1946 Convention on domestic legal personality are automatically received.58 In legal systems where treaty obligations are not automatically effective in municipal law, some form of implementing legislative act is needed.59

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11.30  In situations where the UN has administered territory, the municipal implementation of the international law arrangement for the enjoyment of municipal legal personality has been effected by the organization itself, pursuant to its administrative and legislative authority.60

3.4  Consequences of possession of legal personality in domestic law 11.31  As with international legal personality, the possession of legal personality in domestic legal orders enables the UN to discharge its functions when such functions require action in the municipal legal system.61 The UN can do so on the basis that it is acting (p. 398) separately from other member states, who will usually themselves act as legal persons in each municipal legal system, and from the state whose legal system is at issue.62 Municipal legal personality is the gateway to the UN’s enjoying rights and obligations in domestic law, again in order for it to fulfil its purposes. As with international law, these rights and obligations have a distinct legal derivation from the UN’s legal personality, but are linked to it in that it—that is, the organization’s legal personality— establishes that they are vested in the organization as a distinct legal person.63

4.  Scope of legal personality 4.1  General presumption 11.32  With the roles performed by the UN expanding into ever-widening arenas of subject matter and types of activity, various entities—including subsidiary organs, commissions, and funds—have been created through the organization on the basis of heterogeneous legal instruments. The general presumption is that from the perspective of states, all manifestations of the UN form part of the corporate identity of the organization and thereby engage its legal personality.64

4.2  Distinction between subsidiary organs and other bodies, specialized agencies, joint bodies, and treaty bodies 11.33  Certain UN bodies operate in practice quite separately from the rest of the organization in terms of their functions and location.65 However, this does not in and of itself indicate the existence of international legal personality separate from the UN. A distinction operates between four different categories of entity: 1.  principal organs and subsidiary organs and other bodies, which form part of the legal personality of the UN; 2.  specialized agencies, which are part of the UN family but possess separate legal personality as international organizations; 3.  bodies that are jointly created by UN organs, on the one hand, and one or more separate international organizations, including specialized agencies, on the other hand; 4.  separate bodies, including ‘treaty bodies’: entities created by states through treaties, which, like specialized agencies, are part of the UN family and may have (p. 399) important links to—and even hold their meetings at—the UN, but which possess separate legal personality. 66 11.34  Each of these types of entity can enjoy certain external legal powers, for example to enter into agreements with other international legal persons. However, this does not by itself necessarily imply that the entity in question exercises these powers in the capacity of a distinct international legal person. Whereas organizations enjoying independent legal personality necessarily possess certain elemental legal powers of this kind, whether a body possessing such powers also enjoys independent legal personality, or simply acts on the

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basis of the legal personality of its ‘parent’ entity, depends in each case upon the relevant terms of its constituent instrument.67

4.3  Subsidiary organs 11.35  Principal organs can establish subsidiary organs when necessary for the performance of their functions.68 The category of being a subsidiary organ does not itself imply a particular degree of autonomy vis-à-vis the principal organ—each arrangement is different.69 In general, however, principal organs enjoy with respect to their subsidiary organs the power to determine and change structure, composition, nature and scope of functions and capacities, and degree of autonomy.70 Ultimately a principal organ can dissolve a subsidiary organ whenever the task of the latter has been fulfilled.71 Subsidiary organs are integral parts of the UN and, like principal organs, do not possess legal personality of their own.72 They routinely perform legal acts and incur legal obligations (p. 400) either in the name of their parent body or in their own names, but on behalf of such parent body.73 As a matter of law this is all performed in right of the UN as a whole, and not on the basis of the possession of separate legal personality from the organization.74 Subsidiary organs created to operate in particular states, for example criminal tribunals, may be granted legal personality by the host state in their own right within the municipal legal order of the host state.75 Pursuant to this, the subsidiary organ may operate within that legal order as an entity separate from the organization as a whole, but this does not alter the position that under international law it is not a separate legal person.

4.4  ‘Independent’ organs, including funds and programmes 11.36  The term ‘independent organ’ is sometimes used to refer to UN bodies such as the United Nations Development Programme (UNDP); the United Nations Children’s Fund (UNICEF); the United Nations High Commissioner for Refugees (UNHCR); the United Nations Institute for Training and Research (UNITAR); the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA); the United Nations Conference on Trade and Development (UNCTAD); the United Nations Capital Development Fund (UNCDF); the International Narcotics Control Board; the United Nations Environment Programme (UNEP); and the United Nations Fund for Population Activities (UNFPA). These bodies enjoy a higher degree of autonomy compared with most subsidiary organs, but, unlike the specialized agencies, have no separate legal personality from the organization as a whole.76 11.37  These bodies have been given functions in the economic and social sectors, performing tasks in the areas of trade, health, child welfare, the alleviation of poverty, illiteracy, and disease that often involve establishing arrangements internationally and within the municipal legal orders of states with a range of public and private actors.77 (p. 401) To the extent that these tasks entail activities that cannot be performed without the exercise of certain legal capacities, such bodies are recognized as endowed with the authority to exercise such capacities.78 However, such authority does not amount to separate international legal personality, and the bodies are still a part of the UN as a whole.79 Accordingly, when they contract or institute legal actions municipally in their own name, domestic courts treat such actions as based on the competence of the UN as a whole to perform such actions.80

4.5  Specialized agencies 11.38  The specialized agencies81 are international organizations with separate legal personality from the UN.82 Their relationship with the UN is based on consent, freedom (p. 402) of contracting, and mutual rights and duties.83 The nature of the legal relationship between any given specialized agency and the UN is determined by the relationship agreement between the two.84 Specialized agencies became part of the UN family after the agreement of ECOSOC.85 Specialized agencies agreements with the UN address issues such From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

as coordination, assistance to the UN, the exchange of information, and budgetary matters.86 11.39  The United Nations Industrial Development Organization (UNIDO) was originally created in 1965 as a subsidiary organ.87 In 1985, it was restructured as an independent international organization and became a UN specialized agency.88 As the old UNIDO was not considered as continuing in the legal personality of the new UNIDO, all agreements with respect to the old body, to which the UN was a party as its parent body, had to be renewed to apply to the new organization.89 11.40  Apart from relations with the UN, specialized agencies maintain links between themselves and with states through agreements.90 They tend to follow the views of (p. 403) the UN on political and legal91 issues, even though they do not recognize its competence to decide on their behalf.92 Sometimes the UN may create new arrangements that provide for a role performed by specialized agencies and/or their representatives.93 As with the UN, member states of specialized agencies have agreed through both a general treaty—the 1946 Convention on the Privileges and Immunities of the Specialized Agencies—and the provisions of the constitutions of the agencies, to confer legal personality within municipal law.94 (p. 404) 11.41  Specialized agencies can themselves create subsidiary entities that form part of the legal personality of the agency and which, like subsidiary organs of the UN, may be granted legal personality in municipal law in their own right, even if they form part of the legal personality of their parent agency as a matter of international law.95

4.6  Joint bodies 11.42  The UN has created joint bodies with other international organizations on the basis that the entities in question do not enjoy separate legal personality but operate as a joint enterprise between the UN and the other organization or organizations involved. Examples would be the Global Environment Facility (GEF)96 and the World Food Programme (WFP).97 The UN has also sometimes created joint bodies with individual states to operate as distinct international legal persons, such as the (p. 405) Cairo Demographic Centre and the International Centre for Training and Research in Population and Development in Louvain.98

4.7  Separate bodies including UN ‘treaty bodies’ 11.43  Other bodies have been created on the basis of treaties between states, and have important connections with the UN, but are not regarded as possessing the legal personality of the organization, nor are they specialized agencies. Their relationships with the UN are heterogeneous, and are determined variously by their constituent instruments, agreements with the organization, and other special measures.99 Examples of such bodies are the World Trade Organization (WTO), the International Atomic Energy Agency (IAEA), the Secretariat of the United Nations Framework Convention on Climate Change (UNFCCC), the International Criminal Court (ICC), the International Seabed Authority (ISA), the International Tribunal for the Law of the Sea (ITLOS), the Organization for the Prohibition of Chemical Weapons (OPCW), the International Organization for Migration (IOM), the Preparatory Commission for the Comprehensive Nuclear-Test-Ban-Treaty Organization, and the various bodies that have been created under human rights treaties to monitor the implementation of these treaties.100

(p. 406) 4.8  Opposability to non-members

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11.44  Whereas the legal personality of the UN is objective—opposable to non-member states and other international organizations—the position is not necessarily the same as far as other UN bodies that do not form part of the UN’s legal personality are concerned: specialized agencies, joint bodies, and separate bodies, including treaty bodies. In so far as these entities possess legal personality, it is opposable to their member states (specialized agencies), their constituent organizations and the members of those organizations (joint bodies), and the states that created them (separate bodies including treaty bodies). Beyond this, other states and international organizations may also be bound to treat these entities as distinct legal persons if they agree to do so in special agreements, or by implication arising out of their dealings (eg by entering into agreements) with the entities in question.101

5.  Independent competence of subsidiary organs to rely on the UN’s legal personality in international law and such personality granted in municipal law 5.1  Generally 11.45  It is sometimes unclear and/or disputed whether, to what extent, and on what basis particular subsidiary organs enjoy the legal ability to act externally—to enter into relations with states or other international organizations—or to contract and perform any other legal activity at the national level, thereby relying on the legal personality of the organization. These issues are a matter for internal regulation, and are determined by the rules of the organization, established practice, and by inference from express provisions in the act of establishment of the subsidiary organ or from the character of the functions entrusted to it.102 Although the approaches taken in each case are highly individualistic and often without reference to any broader framework, a degree of commonality can be identified across individual cases so as to identify a number of general approaches that are being applied.

5.2  Lack of competence 11.46  Sometimes a subsidiary organ may not enjoy the legal competence to perform a particular external act, in which case the act in question must be performed by (p. 407) the parent principal organ or another competent principal organ—usually the Secretariat—on its behalf.103 11.47  The Economic Commission for Europe (ECE) was created by ECOSOC in 1947 to aid the economic reconstruction of European countries and strengthen their economic relations.104 Its terms of reference state that it acts within the framework of the UN and is subject to the general supervision of ECOSOC.105 It reports to ECOSOC and submits proposals to it that may have important effects on the global economy.106 Its composition is determined by ECOSOC, its administrative budget is financed by the UN, and its staff, who form part of the UN Secretariat, are appointed by the Secretary-General.107 It is authorized to establish its own subsidiary organs upon the approval of ECOSOC.108 Certain legal aspects of the external relations of such bodies, however, must be conducted by the UN Secretariat rather than the body or the ECE.109 11.48  In 1988, the Nobel Peace Prize was awarded to UN Peacekeeping Forces (subsidiary organs of the Security Council); the Secretary-General received the Prize on their behalf.110 Nobel Laureates are given the right to nominate candidates for future Prizes. The UN OLA concluded that the Secretary-General, who is ordinarily responsible for the organization, conduct, and direction of such Forces, would be the appropriate channel through which to

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submit such a proposal, rather than the head of any existing individual Peacekeeping Operation.111

(p. 408) 5.3  Competence to establish working relationships externally 11.49  The United Nations Commission on International Trade Law (UNCITRAL) enjoys the competence to establish working relationships with intergovernmental organizations.112 The United Nations Conference on Trade and Development (UNCTAD) is similarly competent to establish links with intergovernmental bodies whose activities are relevant to its functions.113

5.4  Competence to act externally and in municipal legal orders engaging the legal personality of the organization 11.50  In some cases, a subsidiary organ may enjoy the legal competence to act externally, including in municipal legal orders, thereby engaging the legal personality of the UN as a whole. Before this is possible, however, specific authorization from the ‘parent’ organ may be required.114 11.51  The mandate of the aforementioned ECE was extended to enable the Commission to cooperate with the UNDP and other organizations in the UN system, and to function as an ‘executing agency’ in respect to specific projects operating on the basis of this cooperation.115 The OLA subsequently clarified that for a subsidiary organ to perform such a role, a decision by the principal organ that had created it is required.116 It was also held that authority to act in this manner does not by itself extend to a mandate to act as an ‘executing agency’ for projects with organizations outside the UN system.117 11.52  As for treaty-making power, the general rule is that subsidiary organs can conclude agreements directly if they have been given this competence by their parent principal organ; otherwise, the Secretary-General or his/her representative can enter into agreements on their behalf.118 One main area where agreements are commonly made is in setting out the conditions according to which subsidiary organs will work with states to perform specific tasks and projects, for example providing technical assistance, in pursuance of their general mandates.119 Sometimes, the (p. 409) UN has called upon member states to enter into agreements with particular subsidiary organs.120 11.53  It is not possible to give a categorical answer to the question of the precise circumstances in which authorization from a principal organ is required before an international agreement may be concluded by the UN, or whether agreements must receive the approval of such an organ before entering into force.121 The General Assembly has adopted a number of resolutions specifically approving the terms of agreements between the UN and certain states relating to privileges and immunities.122 However, in the case of ‘standard’ agreements concerning technical assistance, a general authorization to make such agreements, as opposed to specific approval in each case, has often been relied on.123 In some cases, agreements are regarded as having been validly entered into despite lack of authority to conclude agreements having been vested in the subsidiary organ involved, on the grounds that the agreements in question were concluded by the UN, the subsidiary organ having acted qua the UN.124 (p. 410) 11.54  Proposals in 1991 for UNDP and a state to create a new international organization led the OLA to issue an opinion setting out the general position on such matters.125 The new organization was to be endowed with an independent international legal personality and powers necessary to carry out its objectives, including the competence to enter into contracts or agreements with states and international public and private organizations.126 The OLA determined that a subsidiary organ does not possess the legal capacity to establish a new international organization with separate international legal personality, whether alone or with another state, unless the UN is specifically mandated to From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

do so by states and a competent organ has authorized the relevant subsidiary organ to exercise that competence.127 11.55  A standard agreement for the establishment of UN offices in member states usually confers domestic legal personality and provides for the municipal representation of various subsidiary organs, such as UNHCR, UNEP, UNFPA, and the WFP.128 In other cases, specific agreements providing domestic legal personality for particular subsidiary organs are entered into by the subsidiary organs directly, on the basis of a power to enter into such agreements vested in them.129 A variant on this is that specific agreements concerned with the municipal legal personality of particular subsidiary organs are entered into by the UN on behalf of the subsidiary organ concerned.130 The conferral of municipal legal personality enables a related but distinct power to enter into commercial contracts with private entities to be exercised, (p. 411) provided the competence to do this has itself been vested in the subsidiary organ involved.131 11.56  Host state agreements and other arrangements sometimes include specific and detailed provisions stipulating which official of the subsidiary organ is competent to act on behalf of the organ in the municipal legal order. The WFP, UNDP, UNICEF, UNRWA, and UNCTAD operate representatives and offices in member states.132 In the case of the UNDP, for example, the authority to establish field offices typically resides in the Resident Representative, and this official is vested with the competence to conclude contractual arrangements for the acquisition of real property on behalf of the UNDP.133 When agreements are negotiated and concluded by the Resident Representative of a subsidiary organ with the government of a state, the executive head of the subsidiary organ usually issues a letter stating that the Representative has been authorized to enter into this agreement on her/his behalf.134 This letter may be addressed to the Resident Representative, or to the government concerned.135

5.5  Prohibited external actions 11.57  Certain external actions by subsidiary organs have been deemed to be prohibited because of their negative impact, whether actual or potential, on important cognate matters of UN law and policy. For example, it was advised by the OLA that UNICEF cannot be a shareholder of a private company in a member state, and its representative cannot serve on the board of directors of such a company.136 Such activity was deemed to be incompatible with the character and status of the UN, potentially exposing UNICEF and its representatives to the national law of the state in question, and contradicting UNICEF representatives’ status as international civil servants.137 11.58  In another situation similarly concerned with the potentially negative consequences of a particular action, the OLA advised that the UNHCR could not enter into a financial trusteeship in Mexico—a commercial transaction regulated through private (p. 412) law, through which a party (in this case, it would have been the UNHCR) deposits funds to be held for use exclusively in relation to certain objectives.138 The OLA considered that this type of action should not be permissible without prior authorization from the General Assembly.139 The concern was with the risk that local courts might misconstrue the participation of the UNHCR as founder of the trusteeship as a waiver of the privileges and immunities that the UNHCR enjoys, exposing the UN to legal actions brought against the trusteeship.140

Footnotes: 1

  See UN Charter, preamble, Chapter XIX.

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2

  The significance of this for the possession of legal personality in particular is discussed further in section 2.4, ‘Position in relation to states and other international legal persons’. 3

  On the international law definition of international organizations, including the UN within this definition, see, eg, Reuter, The Law of International Institutions (trans Chapman, 1958), 214–18; Seyersted, ‘Objective International Personality of Intergovernmental Organizations: Do their Capacities Really Depend upon the Conventions Establishing Them?’ (1964) 34 Nordisk Tidsskrift for International Ret 3; Seyersted, ‘International Personality of Intergovernmental Organizations: Do their Capacities Really Depend upon their Constitutions?’ (1964) 4 Indian Journal of International Law 1; Wolfrum et al (eds), United Nations, Law, Policies and Practice (1995); Dupuy (ed), A Handbook on International Organizations (2nd edn, 1998); Klabbers, An Introduction to International Institutional Law (2002), 7–13; Schermers and Blokker, International Institutional Law: Unity within Diversity (4th rev edn, 2003), paras 29–46; Amerasinghe, Principles of the Institutional Law of International Organizations (2nd edn, 2005); White, The Law of International Organizations (2nd edn, 2005), ch 1; Akande, ‘International Organizations’ in International Law (ed Evans, 2006), 280–6; Chesterman, Franck, and Malone, Law and Practice of the United Nations: Documents and Commentary (2008). 84–99; Sands and Klein, Bowett’s Law of International Institutions (6th edn, 2009), 15–16. On the UN as an ‘international organization’ in particular, see also UN Charter, preamble. 4

  See ch 15, ‘The United Nations Secretariat and Secretary-General’, section 3, ‘SecretaryGeneral’. 5

  On this requirement, see, eg, Gaja, First Report on the responsibility of international organizations, UN Doc A/CN.4/532 (2003), para 10. See also Amerasinghe, n 3, 82–3; Brownlie, Principles of Public International Law (6th edn, 2003), 649; White, n 3, 30. 6

  See ch 10, ‘Voting’.

7

  See further ch 3, ‘The Security Council’; ch 5, ‘The Economic and Social Council’; and ch 4, ‘The Trusteeship Council’. Although decisions in the Security Council are not effective if one of the five permanent members chooses to vote against (the ‘veto’). See ch 10, ‘Voting’, section 3.4, ‘Veto’. 8

  See ch 9, ‘Powers’, section 7, ‘Consequences of ultra vires acts’. For Nigel White, ‘A member state in the minority in…the UN General Assembly, or not represented in…the UN Security Council…cannot object to [the legal effect of] resolutions which are contrary to its interests.’ White, n 3, 89. This general stipulation is made explicit with respect to decisions of the Security Council. Under Art 25 of the UN Charter: ‘The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.’ 9

  See further ch 14, ‘The Financing of the United Nations’, section 1.5, ‘Approval and appropriation: Fifth Committee’. Although the permanent members of the Security Council cannot be subject to binding obligations by the Council acting under Chapter VII without their ‘agreement’ (affirmative vote, or abstention or absence), binding decisions of the General Assembly concerning budgetary matters do not necessarily require this or any other form of assent from them if the necessary level of support is forthcoming from other states. See ch 2, ‘General Assembly’. 10

  See, eg, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (Advisory Opinion) ICJ Rep 1971, p 16, para 105; Higgins, ‘Legal Consequences for Member States of the Non-Fulfilment by International Organizations of their Obligations towards Third

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Parties—Provisional Report’ (1995) 66 Ann de l’Inst 373; and Higgins, Themes and Theories (2009), pt 7, ch 7, 834 at 844. 11

  GA Res 63/3 (2008), Request for an advisory opinion of the International Court of Justice on whether the unilateral declaration of independence of Kosovo is in accordance with international law (GA Res 63/3, 8 October 2008). See ch 29, ‘The International Court of Justice’, particularly section 3.4.2 on the Kosovo Advisory Opinion of the ICJ. 12

  On the voting record, see UN General Assembly Official Records (GAOR), 63rd session, 22nd meeting, UN Doc A/63/PV.22, 8 October 2008, pp 10–11, and for the details of absent states, see http://www.un.org/News/Press/docs/2008/ga10764.doc.htm. On the number of member states at the time, see https://www.un.org/en/sections/member-states/growthunited-nations-membership-1945-present/index.html. There was a dispute relating to Liberia’s attempt to vote against the resolution, which was not recorded. See the UN GAOR, 63rd session, 22nd meeting, 8 October 2008, UN Doc A/63/PV.22, p 11. Had the vote been recorded, it would not have altered the passage of the resolution (see n 13). 13

  According to the General Assembly Rules of Procedure, the phrase ‘present and voting’ means ‘members casting an affirmative or negative vote. Members which abstain from voting are considered as not voting’, even through present. General Assembly, Rules of Procedure, UN Doc A/520/Rev.15, GA Res 48/264 (1994), Rule 86. See also ch 2, ‘General Assembly’. Thus 83 members were present and voting for the purposes of the rule. The General Assembly has never determined whether an Advisory Opinion request constitutes an ‘important question’ requiring a two-thirds majority of members present and voting, or is an ‘other question’, requiring a simple majority of members present and voting (see UN Charter, Art 18(2) and (3)), and in practice all Advisory Opinion requests by the General Assembly, like the request with respect to Kosovo, have met the higher two-thirds threshold. See Oellers-Frahm, ‘Article 96’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), vol II, 1975, at 1980–1. 14

  On the notion of distinct organs being a criterion for legal personality, see, eg, White, n 3, 30 et seq. 15

  UN Charter, Art 100. See further ch 15, ‘The United Nations Secretariat and SecretaryGeneral’. 16

  Art 2, ICJ Statute. See also ch 29, ‘The International Court of Justice’, section 5, ‘ICJ financing and the UN’. 17

  See further ch 29, ‘The International Court of Justice’, section 2, ‘The Bench’.

18

  Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) ICJ Rep 1949, p 174. See the bibliography set out at the start of this chapter for commentary on the enjoyment of international legal personality by international organizations, including the UN. On the background to the Reparation case, see, eg, Martin, A Death in Jerusalem: The Assassination by Jewish Extremists of the First Arab/Israeli Peacemaker (1994). See ch 12, ‘The United Nations and International Law’, section 4, ‘The application of international law to the UN in particular treaties’, and ch 9, section 5.2, ‘Power to bring international claims’. 19

  On the express provision of international legal personality, with examples, see Schermers and Blokker, n 3, para 1564. One example outside the UN system would be the European Union (EU), which, under Art 47 of the Treaty of Lisbon, was expressly granted legal personality. See [2010] OJ C83/40, Art 47. For examples of organizations within the UN family that have been given legal personality in their constitutions, see paras 11.39 and 11.43.

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20

  See Jenks, ‘The Legal Personality of International Organizations’ (1945) 22 BYIL 267, at 269. 21

  Department of State publication 349, Conference Series 71 cited ibid, 269–70. On the UN’s possession of legal personality not suggesting ‘statehood’, and this personality’s being of a ‘limited’ character when compared to that of states, see section 2.3, ‘“Limited” or “functional” personality?’. 22

  See Schermers and Blokker, n 3, para 1565; Amerasinghe, n 3, 78; and White, n 3, 33.

23

  United Nations Conference on International Organization, (1945), XIII UNCIO, at 710, cited in Jenks, n 20, 269–70. 24

  White, n 3, 32–3.

25

  Reparation Advisory Opinion, n 18, p 174. Some view legal personality as inherent in being an international organization, viz distinct from the member states, without the need to establish express or implied conferral. See Seyersted, ‘Objective International Personality of Intergovernmental Organizations’, n 3; Seyersted, ‘International Personality of Intergovernmental Organizations’, n 3. See also the discussion in Schermers and Blokker, n 3, para 1565; and Amerasinghe, n 3, 10–11. The more widely held view is that legal personality, if not expressly conferred, must be implicit in the functions given to the organization in order to exist. See, eg, Pallieri, Diritto internazionale publico (1961), 178 et seq; Rouyer-Hameray, Les Competences implicites des organisations internationales (1962), 68 et seq. For discussion of this view, see Amerasinghe, n 3, 79; Schermers and Blokker, n 3, paras 1565 et seq; White, n 3, 35 et seq. It has been suggested that the possession of legal personality establishes an organization as a distinct entity. Sands and Klein, n 3, 478 (discussion of criteria for international organization status). It has been argued that the better view is that separate legal personality presupposes, rather than establishes, a distinct will. For some, the fact that the UN was created by states is an additional requirement for the possession of legal personality, on the grounds that only those possessing international legal personality themselves can create other international legal persons, and, more broadly, the legal personality of international organizations is rooted in the ‘sovereignty’ of their members. See, eg, Amerasinghe, n 3, 88, fn 56; A-G v Nissan [1960] 1 All ER 649. Further additional criteria discussed are the lack of external control, being lawfully constituted, and having lawful objects and permanence. See Amerasinghe, n 3, 79 and 82–3; Brownlie, n 5, 649; Reuter, n 3, 214 et seq; Sereni, Diritto internazionale (vol II, 1960), 801 et seq; RamaMontaldo, ‘International Legal Personality and Implied Powers of International Organizations’ (1970) 44 BYIL 111, at 126, 144; White, n 3, 30; Seyersted, ‘International Personality of Intergovernmental Organizations’, n 3, 53. 26

  Reparation Advisory Opinion, n 18, p 174, at 179. The Court remarked that ‘[t]he Organization was intended to exercise and enjoy, and is in fact exercising and enjoying’ functions that necessitate international legal personality (ibid, emphasis added). 27

  The Court’s recitation of the UN’s purposes (Reparation Advisory Opinion, n 18, at 179) is but one of the factors it relies on in concluding that the UN has legal personality. Most of the elements to which the Court refers presuppose that rights and duties under international law run between member states and the organization. 28

  See Amerasinghe, n 3, 83, fn 42 and accompanying text. See ch 9, ‘Powers’, section 6.1, ‘International law basis for municipal law capacities’, on Art 104.

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29

  See discussion of the International Tin Council in ch 13, ‘Responsibility of the United Nations’. To be precise, legal separateness is the essence of legal personality rather than its consequence. 30

  See the discussion in White, n 3, 31. There has been controversy, however, as to whether it follows from the possession of legal personality by the UN that it alone, and not it and also some or all of its member states, is always liable for particular defaults and unlawful acts or omissions. See ch 13, ‘Responsiblity of the United Nations’, section 3, ‘Allocating responsibility between the UN and member states’. 31

  For a discussion of the concept of being ‘legally distinct’, see Sands and Klein, n 3, 478. For those commentators who regard legal personality as implicit in a distinct will, the mere possession of the latter would always involve the former. See para 11.02. 32

  Amerasinghe, n 3, 68; White, n 3, 31.

33

  On the power to bring a claim (assuming there is a cause of action), see ch 9, ‘Powers’.

34

  Reparation Advisory Opinion, n 18, p 174, at 180. For Amerasinghe, the possession of legal personality ‘facilitates action’ (Amerasinghe, n 3, 69). 35

  See ch 12, ‘The United Nations and International Law’, section 4, ‘The application of international law to the UN in particular treaties’. 36

  Reparation Advisory Opinion, n 18, p 174, at 179. See also Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) ICJ Rep 1980, p 73, at 89. For Amerasinghe, this assertion in the Reparations case is ‘based on the assumption that legal persons, in the international legal system, are not the same’ (Amerasinghe, n 3, 92). 37

  To use the Reparation example again, such capacity enabled the UN to bring an ‘international’ claim—against a state, Israel. Reparations Advisory Opinion, n 18, p 174, at 185. On the notion that international legal personality is concerned with being able to act on the international plane, see the discussion in White, n 3, 34. 38

  Reparations Advisory Opinion, n 18, p 174, at 179.

39

  See the discussion in Schermers and Blokker, n 3, para 1570, fn 30; White, n 3, 31–2, 40, 44. See also ch 9, ‘Powers’. 40

  Schermers and Blokker, n 3, para 1571. See the sources cited ibid, n 31. See also ch 9, ‘Powers’. 41

  Some argue that the enjoyment of legal personality needs to be recognized by those against whom it is opposable, whether through membership or in the way in which they relate to it (eg by entering into agreements, or by granting privileges and immunities). See Schwarzenberger, International Law (vol 1, 1957), 128 et seq; Wengler, Actes officiels du Congres international d’études sur la Communauté Européene du Charbon et de l’Acier (1958), iii, 10–13, 318–19; Bindschedler, ‘Die Anerkennung imp Volkerrecht’ (1961–2) 9 Archiv des Volkerrechts 387; Weissberg, The International Status of the United Nations (1961), 26; Seidl-Hohenveldern, ‘Die völkerrechtliche Haftung für Handlungen internationaler Organisationen im Verhältnis zu Nichtmitgliedstaaten’ (1961) 11 ÖZöR 497; Bindschedler, ‘La délimitation des compétences des Nations Unies’ (1963-I) 108 RCADI 402; the sources cited in Seyersted, ‘Is the International Personality of Intergovernmental Organizations Valid vis-à-vis Non-Members?’ (1964) 4 Indian Journal of International Law 234, n 250; Seidl-Hohenveldern, ‘Recentsbeziehungen zwischen Internationalen Organisationen und den einselnenstaaten’ (1953-4) 4 Archiv des Volkerrechts 33; Mosler, ‘Reflexions sur la personnalité juridique en droit international public’, Mélanges offerts à Henri Rolin (1964); Shihata, ‘Role of Law in Economic Development—The Legal Problems of International Public Ventures’ (1969) 25 Revue Egyptienne de droit international 124;

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Verhoeven, La reconnaissance internationale dans la pratique contemporaine (1975), 211; Seidl-Hohenveldern, Corporations in and under International Law (1987), 87. Others argue that this ignores the ‘objective legal reality of international legal personality’ (Higgins, Problems and Process: The International Law and How We Use It (1994 reprinted in 2004), 48). See also Seyersted, above, 240; Amerasinghe, n 3, 87. Some who adopt the former view accept that the UN is an exception to it, and in relation to which personality is therefore objective. See, eg, Seidl-Hohenveldern, ‘Die völkerrechtliche Haftung für Handlungen internationaler Organisationen im Verhältnis zu Nichtmitgliedstaaten’, above, 497–507; Seidl-Hohenveldern, ‘Book Review’ (1998) 36 Archiv des Volkerrechts 93; Sands and Klein, n 3, 479–10; and the discussion in Amerasinghe, n 3, 89. In the Reparation Advisory Opinion, which concerned the opposability of the UN’s legal personality to a then non-member state, Israel, the ICJ appeared to give weight to the fact that UN members made up the majority of the world’s states, stating that ‘fifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing international personality, and not merely personality recognized by them alone’ (Reparation Advisory Opinion, n 18, p 174, at 185). For commentary, see, eg, Amerasinghe, n 3, 84, 86– 92. It is sometimes suggested that this rationale determines that the UN’s objective legal personality is only possible because it is an ‘open’ organization, ie that its membership is open to all states, and not ‘closed’ to a certain sub-set of states. See, eg, Schermers and Blokker, n 3, paras 1567 and 1568. See also ch 8, ‘Membership’, section 2, ‘Admission to membership’. For further commentary on the opposability of legal personality to nonmember states, see Dupuy, ‘Le droit des relations entre les organisations internationales’ (1960-II) 100 RCADI 556; Pescatore, ‘Les relations extérieures des Communautés européennes (Contribution à la doctrine de la personnalité des organisations internationales’ (1961-II) 103 RCADI 70; Carroz and Probst, Personnalité juridique internationale et capacité de conclure des traités de l’ONU et des institutions spécialisées (1953), 54; Higgins, ‘Legal Consequences for Member States’, n 10; and Higgins, Themes and Theories, n 10, 853–5. 42

  See also ch 9, ‘Powers’. One express power concerned with non-member states is the competence in Art 2(6), through which the UN ‘shall ensure that states which are not Members of the United Nations act in accordance with’ the Principles set out in Article 2 (which include the prohibition on the threat and use of force in Article 2(4)) ‘so far as may be necessary for the maintenance of international peace and security’. 43

  See ch 9, ‘Powers’, section 6.2, ‘Competence to contract’.

44

  See also ch 9, ‘Powers’, section 6.2, ‘Competence to contract’ and ch 12, section 4, ‘The application of international law to the UN in particular treaties’. 45

  On the domestic legal personality of international organizations generally, including of the UN, see Jenks, n 20, 267–75; Seyersted, ‘Applicable Law in Relations between Intergovernmental Organizations and Private Parties’ (1967-III) 122 RCADI 433; Mann, ‘International Corporations and National Law’ (1967) 42 BYIL 153; Bridge, ‘The United Nations and English Law’ (1969) 18 ICLQ 694; Mann, ‘International Organizations as National Corporations’ (1991) 107 LQR 357–62; Marston, ‘The Origin of the Personality of International Organisations in United Kingdom Law’ (1991) 40 ICLQ 403; Schlüter, Die innerstaatliche Rechtsstellung des internationalen Organisationen unter besonderer Berücksichtigung des Rechtslage in der Bundesrepublik Deutschland (Max-Planck-Institut für auslandisches öffentliches Recht und Völkerrecht No 57, 1972); Cheyne, ‘The State of International Organisations in English Law’ (1991) 40 ICLQ 981; Hill, ‘International Corporations in English Courts’ (1992) 12 OJLS 135; Nakamura, ‘The Status, Privileges and Immunities of International Organizations in Japan—An Overview’ (1992) 35 The Japanese From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Annual of International Law 116; Marston, ‘The Personality of International Organisations in English Law’ (1997) 2 Hofstra Law & Policy Symposium 75; Dominicé, ‘Observations sur la personnalité juridique de droit interne des organisations internationales’ in Liber Amicorum Professor Ignaz Seidl-Hohenveldern in Honour of his 80th birthday (eds Hafner et al, 1998); Schermers and Blokker, n 3, paras 1591–613; Amerasinghe, n 3, 69–77; Sands and Klein, n 3, 480–3. On the UN in particular see, eg, A-G v Nissan [1960] 1 All ER 649. 46

  UN Charter, Art 104. For commentary, see Ziegler, ‘Article 104’ in Simma et al (eds), n 13, vol II, 2138. 47

  The ICJ observed, in the Reparation Advisory Opinion, n 18, p 174, at 185, that in its opinion the then 50 States, ‘representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone, together with capacity to bring international claims’. See also Jenks, n 20, 269 et seq; Amerasinghe, n 3, 70, 76. Ziegler, n 46, 2138. 48

  1946 United Nations Convention on Privileges and Immunities, 1 UNTS 15, Art 1.

49

  See Ziegler, n 46, 2138, 2142–3.

50

  Amerasinghe, n 3, 76. The reason is that there is no general legal connection between non-parties and the organization (but for a special connection, see n 51), and no rule of customary international law requiring recognition of personality in domestic law. Others take the view that there is no obligation to confer legal personality (Reinisch, International Organisations before National Courts (2000), 41, 45–6; Sands and Klein, n 3, 482–3; Ziegler, n 46, 2138, 2150–1). 51

  On the use of special agreements for such purposes in relation to international organizations generally, see Amerasinghe, n 3, 70. For the Switzerland agreement and the legal status of the UN and other international organizations in that country, see Interim Arrangement on Privileges and Immunities of the United Nations concluded between the Secretary-General of the United Nations and the Swiss Federal Council, 11 June/1 July 1946, 1 UNTS 163 (ibid). Switzerland acceded to the General Convention on 25 September 2012. On the legal status of international organizations generally in Switzerland, see, eg, D Hug, Die Rechtsstellung der in der Schweiz niedergelassenen internationalen Organisationen (1984). The organization’s Standard Basic Assistance Agreements make the 1946 Convention applicable, even if the state concerned is not a party to it. Host states of the organization’s peace operations also typically agree to make the 1946 Convention applicable in respect of the peace operation concerned, whether or not they are party to it. Cf paras 3 and 4 of the organization’s Model Status of Forces Agreement and Status of Mission Agreement (SOFA/ SOMA). 52

  In the unusual situation where the organization asserts plenary administrative authority in part of a state, it may be that the international legal mandate for this is regarded as implying the possession of legal personality in the legal order of the territory concerned, since such personality is necessary in order for the administrative mandate to be performed. When the Security Council, acting under Chapter VII of the UN Charter, authorized the deployment in Kosovo of an ‘international civil presence’ that would ‘provide an interim administration’, including ‘performing basic civilian administrative functions’, the arrangement implied the possession by what was the United Nations Interim Administration in Kosovo (UNMIK) of legal personality in Kosovo. See SC Res 1244 (1999),

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paras 5, 10, 11(b). The Federal Republic of Yugoslavia (as it was then) was, and Serbia is, party to the 1946 Convention. 53

  For example, when the Security Council, acting under Chapter VII of the UN Charter, created the United Nations Transitional Administration in East Timor (UNTAET), it endowed the mission with ‘overall responsibility for the administration of East Timor…[and the power to] exercise all legislative and executive authority, including the administration of justice’ (SC Res 1272 (1999), para 1). With no state enjoying sovereignty over East Timor or control after Indonesia’s withdrawal, and the people of East Timor themselves not having provided agreement to this arrangement, the authority for the arrangement under international law was derived from the powers of the Security Council exclusively. Thus, the organization created the international legal basis for its own enjoyment of municipal legal personality. On the legal status of East Timor during this period, see Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (2008), ch 5, section 5.7 and sources cited therein. Where there is a state that has de facto control over the territory, Art 104 of the UN Charter and Art I of the 1946 Convention make such an argument based on implication unnecessary. See, eg, the Status of Forces Agreement of MINURSO. 54

  According to the UN Repertory: ‘In November 1956, during the first days of resumed operation in the Gaza Strip by…UNRWA, a provisional agreement setting forth the framework within which UNRWA would continue its operations was reached between UNRWA and Israeli authorities. This agreement…provided that the [1946] General Convention would govern the relations between UNRWA and the Government of Israel’ (UN RP Supp no 2 (1955–59) vol III, Arts 104–105, p 245, para 13). When Israel became the occupying authority in Gaza, displacing the authority of Egypt, it entered into agreements with UNRWA concerned with the continuation of the Agency’s mandate in the territory. See, eg, Exchange of letters constituting a Provisional Agreement between The United Nations Relief and Works Agency for Palestine Refugees in the Near East and Israel concerning assistance to Palestine refugees, Jerusalem, 14 June 1967, contained in 620 UNTS 183 and [1968] UN Juridical YB 47, in particular the following undertakings by Israel: [W]e are prepared to agree… (f)  …to maintain the previously existing financial arrangements with the governmental authorities then responsible for the areas in question, concerning— (i)  exemptions from Customs duties, taxes and charges on importation of supplies, goods and equipment; (ii)  provision free of charge of warehousing, labour for offloading and handling, and transport by rail or road in the areas under our control; (iii)  such other costs to the Agency as were previously met by the governmental authorities concerned. (g)  To recognize that the Convention on the Privileges and Immunities of the United Nations of 13 February 1946, to which Israel is a party, shall govern the relations between the Government and UNRWA in all that concerns UNRWA’s functions.

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UNRWA accepted this arrangement, which assumes the administrative role of Israel in Gaza, without prejudice to the questions of Israel’s entitlement to perform this role and the status of Gaza: ‘Naturally, this cooperation implies no commitment or position by UNRWA with regard to the status of any of the areas in question or of any instrument relating to them, but is concerned solely with the continuation of its humanitarian task’ ([1968] UN Juridical YB, at 48). 55

  Amerasinghe, n 3, 70; Higgins, Problems and Process, n 41, 48; Sands and Klein, n 3, 481. 56

  Amerasinghe, n 3, 76.

57

  For general treatment of the relevance of the ‘monist’/‘dualist’ distinction in this context, see Sands and Klein, n 3, 481. In practice, only the treaty basis, and not also the customary international law basis for legal personality, may be regarded as relevant for domestic law purposes, in which case the key issue is how international treaty obligations in particular are received into domestic law. Thus, in systems, eg, in common law jurisdictions, where custom is automatically part of domestic law but treaty law requires some form of domestic law enabling mechanism, it is sometimes only the latter issue that is determinative of the existence of domestic legal personality. An example would be the UK, where the UN’s legal personality in domestic law has been treated exclusively as a matter of the reception of the UK’s treaty obligations into municipal law via an Order in Council. See n 63. 58

  There is great controversy as to which countries this applies. See Amerasinghe, n 3, 70 (suggesting the US, Germany, and Austria), 71 (suggesting the US); Ziegler, n 46, 2138, 2142–3. 59

  This is the case in many common law countries. See generally Amerasinghe, n 3, 70. These jurisdictions have typically given the UN the legal capacity of a ‘body corporate’. In Australia, this is provided for in the International Organizations (Privileges and Immunities) Regulations 1986; in Canada, it is the Privileges and Immunities (United Nations) Act 1947; in the US, it is the International Organizations Immunities Act, 22 USC § 288 (1952). See Legislative Texts and Treaty Provisions concerning the Legal Status, Privileges and Immunities of International Organizations, vol I (ST/Leg/Ser. B/10 & 11) (1959 & 1961), pp 4 (Australia), 11 (Canada), 129 (US). In the case of the UK, municipal legal personality was effected through an Order in Council, the Diplomatic Privileges (United Nations and International Court of Justice) Order in Council 1947, SR & O 1947/1772, made under the Diplomatic Privileges (Extension) Act 1946. The Order states that the United Nations ‘shall have the legal capacity of a body corporate’ (Art 2). See also the International Organisations (Immunities and Privileges) Act 1950 and the International Organisations Act 1968. On this arrangement generally, and the meaning of ‘body corporate’ in English law in particular, see Bridge, n 45. See also Legislative Texts and Treaty Provisions concerning the Legal Status, Privileges and Immunities of International Organizations, above, p 15. In the House of Lords decision in the Tin Council cases, it was held that where no such Order in Council made under the 1946 Act existed but another Statutory Order had been made, the Tin Council was regarded as a legal person in English law not on the basis of international law but as an entity ‘created’ by the Order. See JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry, Maclaine Watson v Department of Trade and Industry, Maclaine Watson v International Tin Council [1989] 3 WLR 969 (HL), [1989] 2 AC 418, per Lord Oliver at 510. However, in Arab Monetary Fund v Hashim and Other (No 3) [1990] 2 WLR 729 at 732, it was held that in such circumstances legal personality in English law could subsist on the alternative basis of conflicts of law, if the organization in question had legal personality recognized in the law of another national jurisdiction. For a discussion of the potential for a common law basis for the possession of legal personality municipally based

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on the position in international law, see, eg, the discussion in Marston, ‘The Origin of the Personality of International Organisations in United Kingdom Law’, n 45. 60

  In Kosovo and East Timor, eg, the enjoyment of municipal legal personality was implicit in the broad competences UNMIK and UNTAET asserted for themselves, covering ‘all legislative and executive authority…including the administration of the judiciary’. See UNMIK Regulation 1999/1, UNMIK/REG/1999/1, 25 July 1999, Section 1.1; UNTAET Regulation 199/1, UNTAET/REG/1999/1, 27 November 1999, Section 1.1. 61

  For these functions, see also ch 9, ‘Powers’.

62

  On this generally (not the point about the state at issue), see Sands and Klein, n 3, 482.

63

  See ch 9, ‘Powers’, section 6, ‘Substantive content of powers—in domestic law’.

64

  See ch 13, Responsibility of the United Nations’, section 3, ‘Allocating responsibility between the UN and member states’. 65

  For example, the ICJ has its seat in The Hague, away from the UN Headquarters in New York where the General Assembly, the Security Council, ECOSOC, and the Trusteeship Council meet and where the Secretariat is partly based, and the United Nations Office in Geneva, where the Secretariat is also partially based (this point discussed in Amerasinghe, n 3, 72). See also ch 29, ‘The International Court of Justice’. 66

  There is also a small number of international entities created by agreement between the UN and a state, such as the Special Court for Sierra Leone and the Special Tribunal for Lebanon. See ch 31, ‘Criminal Tribunals Established by, or in Relationship with, the UN’ section 4, ‘The Special Court for Sierra Leone’ and section 6, ‘The Special Tribunal for Lebanon’. See generally Ahluwalia, The Legal Status, Privileges and Immunities of the Specialized Agencies of the United Nations and Certain Other International Organizations (1964); Schermers and Blokker, n 3, para 1571 and sources cited therein; White, n 3, 34–5. 67

  Relations between states and international organizations, Un Doc A/CN.4/L.383 and Add.1–3, YBILC, 1985, II(1), p 152. 68

  UN Charter, Arts 7(2), 22, 29, 68. The legal capacity to establish subsidiary organs is conferred upon three of the principal organs of the UN: the General Assembly, the Security Council, and ECOSOC, under the specific authorization in Arts 22, 29, and 68 of the UN Charter respectively. For commentary, see [1991] UN Juridical YB, at 297. However, Paulus and Lippold observe that Art 7(2) of the UN Charter provides a general authorization for the creation of subsidiary organs. Paulus and Lippold, ‘Article 7’ in Simma et al (eds), n 13, vol I, 387, at 400–2. See ch 6, ‘Subsidiary Organs’, section 4.2, ‘Limitations on the powers of subsidiary organs’. 69

  Relations between states and international organizations, n 67, at 152; Paulus and Lippold, n 68, 392–3. 70

  [2000] UN Juridical YB, at 357. These general powers, when present, are therefore indicia of the status of the entity made subject to them as a subsidiary organ. For example, the UN Office of Legal Affairs (OLA) concluded that the Committee on Crime Prevention and Control is a subsidiary organ of ECOSOC, since the latter determined its size, appointed its members, and instructed the Committee to report to certain subsidiary organs of ECOSOC. See [1971] UN Juridical YB 206. 71

  For an affirmation of this principle through the example of the power of the General Assembly, as parent organ, to dissolve the Joint Inspection Unit (created by the Assembly in Res 31/192 (1976), see [2000] UN Juridical YB 355. 72

  UN RP Supp no 1 (1954–55) vol I, Art 7, p 100; [2000] UN Juridical YB 356.

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73

  [1994] UN Juridical YB 478–80.

74

  See Paulus and Lippold, n 68, 410.

75

  For example, the Agreements between the UN and The Netherlands and Tanzania with respect to, respectively, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) provide that ‘The Tribunal shall possess in the host country full juridical personality.’ Agreement between the United Nations and the Government of the Netherlands concerning the headquarters of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, signed at New York on 29 July 1994, 1972 UNTS 351 and [1994] UN Juridical YB 12, Art III.1; Agreement between the United Nations and the Government of the United Republic of Tanzania concerning the headquarters of the International Criminal Tribunal for Rwanda. Signed at New York on 31 August 1995, 1887 UNTS 63 and [1995] UN Juridical YB 71, Art III.1. See ch 9, ‘Powers’, section 1, ‘Meaning and relationship to legal personality’. 76

  [2000] UN Juridical YB, at 357. The term is a gesture towards the view taken by some states that wished to create independent international organizations, even if the view of other states, which wished the bodies to remain part of the UN, ultimately prevailed. See Proceedings of the UN Conference on Trade and Development (Geneva), 23 March–16 June 1964 (UN Doc E/Conf. 46/141), vol I, at 233–4; Szasz, ‘The Complexification of the United Nations System’ (1999) 3 MPUNYB 1; Schermers and Blokker, n 3, para 1695. On the specialized agencies, see section 4.5, ‘Specialized agencies’. 77

  [1994] UN Juridical YB, at 479.

78

  ibid. See ch 9, ‘Powers’, section 2.1, ‘Different types of powers’.

79

  [1994] UN Juridical YB, at 470.

80

  The position is the same as a matter of actions on the international plane. According to the Secretariat: ‘For example, UNDP, while enjoying the capacity to enter into international agreements in its own name and the competence to perform other legal acts, is not considered to possess a juridical personality separate and distinct from the United Nations. International agreements entered into by UNDP are registered ex officio by the Secretariat under article 4 of the Regulations concerning the registration and publication of treaties and international agreements. Similarly, UNDP is entitled to the privileges and immunities of the United Nations by virtue of its status as a subsidiary body of the Organization, and this entitlement, therefore, subsists with respect to all Governments, whether or not they have entered into a basic agreement with UNDP stipulating that the Convention on the Privileges and Immunities of the United Nations shall apply to UNDP’ (Relations between states and international organizations (second part of the topic), The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, YBILC, 1985, II(1)/Add.1, p 152). For further examples, see the finding in Giurgis v UNRWA, that UNRWA as an organ of the UN is entitled to the immunities and privileges granted to the UN as a whole (Awad Iskandar Guirgis v UNRWA Representative (Cairo Court of First Instance, Dept 23—Labour Tribunal), Case No 258 of 1958,1961), cited in Ziegler, n 46, 2148 at n 68); and the agreement between the UN and Thailand concerning the Economic Commission for Asia and the Far East (ECAFE), which provides that ‘the United Nations acting through the ECAFE’ shall have the capacities set out in the agreement (Agreement between the United Nations and the Government of Thailand relating to the headquarters of the Economic Commission for Asia and the Far East in Thailand, 6 February 1957, 1957 UNTS 35, Art II). See also [1994] UN Juridical YB 514; Ziegler, n 46, 2148–9.

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81

  The United Nations Educational, Scientific and Cultural Organization (UNESCO), World Health Organization (WHO), International Labour Organisation (ILO), International Monetary Fund (IMF), International Refugee Organization (IRO, no longer in existence, replaced by UNHCR, a subsidiary organ), World Meteorological Organization (WMO), International Finance Corporation (IFC, part of the World Bank Group), International Maritime Organization (IMO, earlier the Inter-Governmental Maritime Consultative Organization (IMCO)), International Development Association (IDA, part of the World Bank Group), World International Property Organization (WIPO), International Fund for Agricultural Development (IFAD), United Nations Industrial Development Organization (UNIDO, specialized agency since 1985, see para 11.39), United Nations Relief and Rehabilitation Administration (UNRRA, created in 1943 before the UN itself, and ended its operations in 1949), International Bank for Reconstruction and Development (IBRD—the World Bank), Universal Postal Union (UPU), International Telecommunications Union (ITU), Food and Agricultural Organization (FAO), International Civil Aviation Organization (ICAO), World Tourism Organization (UNWTO). 82

  See UN Charter, Arts 57 and 63. For commentary on the specialized agencies generally, including their legal status and the provisions of UN Charter, Arts 57 and 63, see, eg, Meng, ‘Article 57’ in Simma et al (eds), n 13, vol II, 1611, at 1626–7; Meng, ‘Article 63’ in Simma et al (eds), n 13, vol II, 1697; Convention on the Privileges and Immunities on the Specialized Agencies of 21 November 1947, Art II; Practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat (UN Doc A/CN.4/L.118 and Add.1 and 2), YBILC, 1967, II, at p 299 and UN Doc A/CN.4/L.383 and Add. 1–3, YBILC, 1985, II, pt 1, Add.1, p 145; Ahluwalia, n 66; Schermers and Blokker, n 3, para 1594. 83

  Schermers and Blokker, n 3, para 1594.

84

  Meng, ‘Article 57’, n 82, 1625–7.

85

  See Schermers and Blokker, n 3, para 1694.

86

  On such agreements generally, see ibid, para 1696; Meng, ‘Article 57’, n 82, 1625–7.

87

  See ch 18, ‘Improving Economic Wellbeing’, section 6, ‘The United Nations Industrial Development Organization’. UNIDO was established by the General Assembly in order to intensify and concentrate efforts in the field of industrial development (GA Res 2089 (XX) (1965), preamble, para I). The Resolution decided to establish ‘within the UN an autonomous organization for the promotion of industrial development’ (Art 1). Its administrative and research activities were financed from the UN regular budget, and its operational activities financed from voluntary contributions (Art 2). It had its own secretariat headed by an Executive Director, appointed by the Secretary General and confirmed by the General Assembly (Art 5). An ad hoc committee of member states and specialized agencies prepared its operating procedures and administrative arrangements (Art 6). The General Assembly established an Industrial Development Board to be the ‘principal organ’ of UNIDO (Art 3). The members of the Board were elected by the General Assembly (GA Res 2152 (XXI) (1966), Art 3) and the Board reported annually to the General Assembly through ECOSOC (Art 7(h)). The Board could establish such subsidiary organs as might be necessary for its functions (Art 14). In its relationships with other organs and agencies within the UN system, the Board had to act in conformity with the responsibilities of ECOSOC (Art 28). The Executive Director was a member of the Inter-Agency Consultative Board of UNDP (Art 31), and UNIDO exercised its functions in close coordination with the Secretary General, the specialized agencies, and relevant

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intergovernmental organizations and international non-governmental organizations (NGOs) (Arts 32, 33, 34, 35, 36). 88

  Agreement between the United Nations and UNIDO annexed to GA Res 40/180 (1985), Art I; see in particular Art 21(1) of the Constitution therein. 89

  Ziegler, n 46, 2146–7.

90

  For examples of agreements between specialized agencies, see Agreement between World Intellectual Property Organization and World Trade Organization, 22 December 1995, [1995] UN Juridical YB 356; FAO–ILO–OECD–UNEP–UNIDO–WHO: ‘Memorandum of Understanding concerning Establishment of the Inter-Organization Programme for the Sound Management of Chemicals, 1899 UNTS 95; Agreement between the International Fund for Agricultural Development and International Labour Organisation, 6 December 1978, 1120 UNTS 426; Inter-Organization Agreement concerning transfer, secondment or loan of staff among the organizations applying the United Nations common system of salaries and allowances, 17 March 1972, 1416 UNTS 295; Agreement for the establishment of the Joint Vienna Institute between the Bank for International Settlements, the International Bank for Reconstruction and Development, the International Monetary Fund and the Organisation for Economic Cooperation and Development 2029 UNTS 391.’ See also Inter-agency agreements and agreements between specialized agencies and other inter-governmental organizations, UN Doc ST/SG/3 (1953). For an example of an agreement with a state, see Revised Standard Agreement on Technical Assistance between Qatar and the UN and Specialized Agencies, 29 September 1972, 1972 UNTS 243. On agreements generally, see also Schermers and Blokker, n 3, para 1697. 91

  Through the network of legal advisers, they tend to be guided by the positions that the UN OLA takes on legal questions. 92

  Schermers and Blokker, n 3, para 1581. See also ibid, para 1878, on the question of the specialized agencies’ being entitled to act inconsistently with General Assembly recommendations. Under a common provision in the relationship agreements between the UN and the World Bank and the IMF, each institution ‘is, and is required to function as, an independent international organization’, because of ‘the nature of its international responsibilities and the terms of its Articles of Agreement’ (Agreement Between the United Nations and the International Bank for Reconstruction and Development, Art I, 16 UNTS 341, and Agreement between the United Nations and the International Monetary Fund, Art I, 16 UNTS 325). Both agreements were approved by the General Assembly in Res 214 (II) on 15 November 1947. See also Schermers and Blokker, n 3, para 1694. An example of an important divergence between UN policy, on the one hand, and World Bank and IMF policy, on the other, would be the issue of membership. For the criteria for admission of ‘states’ as UN members, see ch 8, ‘Membership’, section 2, ‘Admission to membership’. Under Art II, Sec 2, of the IMF Articles of Agreement, membership is open to ‘countries’. See https://www.imf.org/external/pubs/ft/aa/pdf/aa.pdf. According to the World Bank Articles of Agreement, Art II, Sec 1, membership is open to entities who are ‘members’ of the IMF and, as with the IMF, Bank members are referred to as ‘countries’ rather than ‘states’. See http://siteresources.worldbank.org/EXTARCHIVES/Resources/ IBRD_Articles_of_Agreement.pdf. Kosovo has been admitted as a member of the Bank and the Fund despite not being admitted as a member of the UN. For the Fund, see http:// www.imf.org/external/np/sec/memdir/members.htm#3. Specialized agencies typically agree to render assistance to the Security Council as the Security Council may request, including in carrying out decisions of the Council on the maintenance of international peace and security. See Art 48(2) of the UN Charter.

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93

  In the Dayton Peace Agreements, Annex 4, which was welcomed and supported by the UN Security Council in a provision of Res 1031 adopted under Chapter VII of the UN Charter, the IMF was given the role of appointing the Chair of the Central Bank Governing Board in the country. See General Framework Agreement for Peace in Bosnia and Herzegovina, 14 December 1995, agreed to by Bosnia Herzegovina, Croatia, and Federal Republic of Yugoslavia, (1996) 35 ILM 89, Constitution of Bosnia and Herzegovina, Annex 4 (with Annexes I and II) to the General Framework Agreement for Peace in Bosnia and Herzegovina, 14 December 1995, approved by Bosnia and Herzegovina, Republika Srpska and Federation of Bosnia and Herzegovina (1996) 35 ILM 117, Art VII; SC Res 1031 (1995), Art 1. 94

  Art II of the Convention on the Privileges and Immunities of the Specialized Agencies, 33 UNTS 261, states that ‘The specialized agencies shall possess juridical personality.’ The Convention on International Civil Aviation that serves as the ICAO’s constitution states: ‘The Organization shall enjoy in the territory of each contracting State such legal capacity as may be necessary for the performance of its functions. Full juridical personality shall be granted wherever compatible with the constitution and laws of the State concerned’ (The Convention on International Civil Aviation, 15 UNTS 296, Art 47). The Constitution of the ILO states that ‘the International Labour Organization shall possess full juridical personality’. See ILO Constitution 1919 (as amended), Art 39, available at http:// www.ilo.org/dyn/normlex/en/f?p=1000:62:0::No:62:P62_LISt_eNtrIe_ID:2453907:No. The Articles of Agreement of the World Bank and the IMF provide that the Bank and the Fund shall ‘possess full juridical personality’ in the territories of each member. See IBRD Articles of Agreement (as amended effective 16 February 1989), Art VII, Section 2, available at http://siteresources.worldbank.org/EXTABOUTUS/Resources/ibrd-articlesofagreement.pdf, and IMF Articles of Agreements (as amended effective April 2016), Art IX, Section 2, available at https://www.imf.org/external/pubs/ft/aa/pdf/aa.pdf. 95

  For example, the International Agency for Research on Cancer, which forms part of the WHO, was given municipal legal personality by France in the host agreement between France and the WHO. See Headquarters agreement between France and the World Health Organization on the privileges and immunities of the International Agency for Research on Cancer, signed at Paris on 14 March 1967, Art 1, 743 UNTS 61. 96

  The GEF was created in 1984 by the UN and the World Bank (a specialized agency) as a joint body to act through the UNDP and UNEP (UN subsidiary organs). [1994] UN Juridical YB, at 472, s 17, at 473, s 22. The GEF has been given considerable autonomy in the conduct of its activities, including the authority to negotiate agreements with other international entities for the purposes of its objectives (ibid, at 472–3). However, the GEF does not itself have the authority to enter into these agreements once negotiations are complete (ibid). Any agreement negotiated by the GEF must be approved by the World Bank before it can enter into force (ibid, at 472, s 17, at 473, s 22). 97

  The WFP was established by concurrent resolutions of the General Assembly and the Conference of the Food and Agriculture Organization as a joint body of the UN and the FAO, a specialized agency (GA Res 1714 (XVI) (1961), pt I, Art 1, and FAO Conference Res 1/61 of 24 November 1961). It was originally created for only three years as an experimental programme (GA Res 1714 (XVI) (1961), preamble, para 3). In 1965 the General Assembly decided to extend the WFP on a continuing basis, ‘for as long as multilateral food aid is found feasible and desirable’ (GA Res 2095 (XX) (1965), Art 1). The WFP is responsible for facilitating the best possible use of food surpluses for the economic and social development of developing countries (GA Res 1714 (XVI) (1961), preamble, para 2). It is guided by an Inter-Governmental Committee whose members are elected by ECOSOC and the FAO, and administrated by a joint administrative unit (ibid, Arts 1, 3, and 5). It reports both to the UN Secretary-General and the Director-General of the FAO (ibid, pt I, Art 13). The UN OLA examined the international and municipal powers of the WFP, but concluded that the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

possession of these powers did not necessarily mean that the WFP has an independent legal personality, and an evaluation of its constituent instruments revealed it to be not a distinct legal person but a joint body of its two ‘parent’ entities. See Relations between States and international organizations, n 67, p 152. 98

  On the Cairo Demographic Centre, see the Agreement between the United Nations and the Government of Egypt Relating to the Continuation and Further Extension of the Interregional Centre for Demographic Research and Training, established at Cairo, 22 December 1987, 1488 UNTS 111. Under Art 1, para 5 of the Agreement: ‘The Centre shall have a juridical personality independent of that of the parties, and shall not be considered as forming part of either the United Nations or the Government.’ On the Louvain Centre, see Memorandum of Understanding between the United Nations and the Government of Belgium Relating to the Establishment of an International Centre for Training and Research in Population and Development in Association with the United Nations at the Catholic University of Louvain, Louvain-la-Neuve, signed at Brussels and New York on 19 September and 10 October 1986, respectively, 1437 UNTS 245. Under Art 13 of the Agreement: ‘The Centre shall have a juridical personality independent of that of the funding parties and shall not be considered as forming either part of the United Nations or the Government.’ 99

  See Meng, ‘Article 57’, n 82, 1625–7.

100

  On the WTO, see Agreement Establishing the World Trade Organization (signed in Marrakesh, 1994), available at http://www.wto.org/english/docs_e/legal_e/04-wto.pdf. On the IAEA, see Statute of the IAEA, approved on 23 October 1956, available at http:// www.iaea.org/About/statute.html. On the ICC, see ch 31, ‘Criminal Tribunals Established by, or in Relationship with, the UN’, section 3, ‘The International Criminal Court’. On the UNFCCC, see http://unfccc.int/essential_background/items/2877.php. On the International Seabed Authority, see the 1982 United Nations Convention on the Law of the Sea (UNCLOS), 1836 UNTS 3, and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea (UNCLOS), UNTS (1994) 42. Under Art 176 of UNCLOS, the Authority ‘shall have international legal personality’. Under Art 3 of the Protocol on The Privileges and Immunities of the International Seabed Authority (1998) 2214 UNTS 133, the Authority is to possess legal personality in the municipal law of parties to the Protocol. While the legal status of the ITLOS is not mentioned in the UNCLOS, nor in its Statute, under Art 2 of the Agreement on the Privileges and Immunities of the International Tribunal for the Law of Sea (1997) 2167 UNTS 271, the Tribunal ‘shall possess juridical personality’; see also the reference to the Tribunal’s ‘autonomous international judicial body’ in Art 1 of the 1997 Agreement on Cooperation and Relationship between the United Nations and the International Tribunal for the Law of the Sea (GA Res 52/251 (1998); 2000 UNTS 467). On the OPCW, under Art 1 of the 2000 Agreement concerning the Relationship between the United Nations and the Organization for the Prohibition of Chemical Weapons, 2160 UNTS 208 (GA Res 55/283 (2001)) the UN recognizes that the OPCW shall function ‘as an independent, autonomous international organization’. On the human rights treaty bodies, see ch 22, ‘Promotion and Protection of Human Rights’, section 5, ‘Human rights treaties and treaty bodies’. 101

  On this point in relation to international organizations generally, see Higgins, ‘Legal Consequences for Member States’, n 10; and Higgins, Themes and Theories, n 10, 853–4. 102

  The Practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat (UN Doc A/CN.4/L.118 and Add.1 and 2), YBILC, 1967, II, p 221; Paulus

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and Lippold, n 68, 410–11. The capacity of the UN as whole to contract is considered in ch 9, section 6.2, ‘Competence to contract’. 103

  For example, the UN OLA concluded that the World Disarmament Campaign Fund was not a legal entity enjoying the capacity to accept bequests from individuals. As the UN itself was recognized as capable of receiving bequests, such bequests were made on the basis of the Secretary General as beneficiary. [1983] UN Juridical YB, at 210–11. This issue was whether the Fund could receive an estate under the will of a citizen of the US. The General Assembly launched the World Disarmament Campaign in 1982 to increase public awareness of disarmament issues, welcoming voluntary contributions by member states to carry out the objectives of the Campaign (GA Res 37/100 (H), (1982), preamble, para 7). See also GA Res 47/53 D, (1992). 104

  Art 1(a) of the terms of reference annexed to ECOSOC Res 36(IV) (1947) (E/402). The ECE is one of five regional commissions of ECOSOC (see at http://www.un.org/en/ecosoc/ about/subsidiary.shtml). 105

  Art 1(a) of the terms of reference annexed to ECOSOC Res 36(IV) (1947) (E/402).

106

  Terms of reference annexed to ECOSOC Res 36(IV) (1947) (E/402), Arts 4 and 6.

107

  Terms of reference annexed to ECOSOC Res 36(IV) (1947) (E/402), Arts 7, 15, 16.

108

  Terms of reference annexed to ECOSOC Res 36(IV) (1947) (E/402), Art 5.

109

  For example, in the case of the ECE’s Working Party on Steel and Committee on Human Settlements, when the personnel of these bodies conducted visits to member states, the grant of privileges and immunities to them in these states was arranged through letters from the Director-General of the UN Office in Geneva. See Exchange of letters constituting an agreement between the UN and the Government of the Czech Republic regarding the study tour of the Working Party on Steel, subsidiary body of the ECE, to be held in the Czech Republic, [1993] UN Juridical YB 59–61; Exchange of letters constituting an agreement between the UN and the Government of the Netherlands on the arrangements for the study tour of the Committee on Human Settlements, principal subsidiary body of the ECE, to be held in The Netherlands, [1993] UN Juridical YB 81–2. 110

  [1990] UN Juridical YB, at 267, 269.

111

  [1990] UN Juridical YB 1990, at 269–70. However, and in the light of the fact that other UN bodies and personnel who were recipients of the Prize had not made such nominations, it was decided that it would not be desirable to do so in this case ([1990] UN Juridical YB, at 270, ss 6 and 7). 112

  UNICTRAL was created by the General Assembly in 1966, and is responsible for the modernization and harmonization of the law of international trade. See GA Res 2205 (XXI) (1966), pt II, Art 12. 113

  GA Res 1995 (XIX) (1964), pt II, Art 19. See also [1990] UN Juridical YB 273.

114

  [1994] UN Juridical YB, at 478–80.

115

  GA Res 33/202 (1979).

116

  [1988] UN Juridical YB, at 310.

117

  [1993] UN Juridical YB, at 421.

118

  The Practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, n 102, p 221.

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119

  For example, Art XVIII of the Agreement between the UN and Georgia, Agreement between the UN and the Russian Federation, and Agreement between the UN and Eritrea: [1993] UN Juridical YB, at 10, 63, 86 respectively. 120

  For example, when the General Assembly created the Office of The United Nations High Commissioner for Refugees (UNHCR) in 1950, and called upon member states to enter into special agreements with the agency to improve the situation of refugees. GA Res 428 (1950), Art 2(b); see also annexed Statute. The UNHCR acts under the authority of the General Assembly (Statute, Art 1) and reports annually to the General Assembly through ECOSOC (Statute, Art 11). The High Commissioner is elected by the General Assembly on the nomination of the Secretary-General, and the terms of the appointment are proposed by the Secretary-General and approved by the General Assembly (Statute, Art 13). UNHCR administration is subject to the financial regulations of the Secretary-General and its transactions are subject to audit by the UN Board of Auditors (Statute Arts 21 and 22). See ch 22, ‘Promotion and Protection of Human Rights’, section 4, ‘Office of the United Nations High Commissioner for Human Rights’. 121

  The Practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, n 102, p 221. For the example of a subsidiary organ, UNDP, enjoying the competence to enter into international agreements in its own name, see Relations between States and international organizations, n 67, p 152. The UNDP’s international agreements are, in law, agreements between the UN, acting through UNDP, and the treaty partners concerned. 122

  The Practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, n 102, p 221. See also ch 16, ‘United Nations Privileges and Immunities’. 123

  The Practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, n 102, p 221. 124

  For example, the United Nations Volunteers was established in 1970 by the General Assembly (GA Res 2659 (XXV) (1970), Art 1). It is responsible for recruitment and training of volunteers participating in UN development programmes, and sending these volunteers to countries when requested by governments (GA Res 2659 (1970), preamble). The Administrator of the UNDP serves also as the UN Volunteers Administrator (Art 3(a)). The UN Secretary-General and the Administrator report to the General Assembly through ECOSOC (Art 5). An example of an agreement with a state in the absence of dedicated authority provided to UN Volunteers for this would be the Agreement between the UN and the Government of the Germany concerning the headquarters of the UN Volunteers Programme, done at New York on November 1995, [1996] UN Juridical YB, at 52–64. Art 3 of this agreement determined that the UN, acting through the UN Volunteers, a subsidiary organ of the UN, shall possess in the host country full juridical personality and the capacity to contract, to acquire, and dispose of movable and immovable property, and to institute legal proceedings ([1996] UN Juridical YB 54). 125

  [1991] UN Juridical YB 296–301. The state involved is not named. The Opinion also discussed the powers of subsidiary organs more generally, and, specifically, their powers to create their own subsidiary organs. See ch 6, ‘United Nations Privileges and Immunities’, section 4.2, ‘Limitations on the powers of subsidiary organs’. UNDP was established by the General Assembly as a merger of two other organs of the Assembly: the Expended Programme for Technical Assistance and the Special Fund (GA Res 2029 (1965), Art 1; see also GA Res 304 (1949) and GA Res 1240 (1958)). It is responsible for working with governments in developing countries and assisting them in finding solutions to global and national development challenges (GA Res 2029 (1965), preamble, para 5). ECOSOC elects From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

the members of its Governing Council and the latter submits annual reports and recommendations to ECOSOC (Arts 4 and 5). The Secretary-General is a member in its Inter-Agency Consultative Board (Art 6). On the legal status of UNDP as a subsidiary organ and not a separate international legal person, see [1990] UN Juridical YB 259; Relations between states and international organizations, n 67, p 152. 126

  UNJYB 1991, at 296–7.

127

  [1991] UN Juridical YB, at 298–300. See also [1994] UN Juridical YB 473. The reason for this is that a subsidiary organ has only those powers contained in its constituent document; and even if these allow for the creation of further subsidiary organs (which the UNDP was permitted to do, if necessary, to perform development activities), such organs cannot possess distinct international legal personality since they are bodies of subsidiary organs, which themselves do not possess such personality, instead forming part of the legal personality of the UN as a whole. See para 11.36. 128

  See Art I(c) and Art III of the Agreement between the UN and Georgia, Agreement between the UN and the Russian Federation, and Agreement between the UN and Eritrea ([1993] UN Juridical YB, at 10, 63, and 86 respectively). There is no such provision in the Standard Basic Assistance Agreements of the UNDP, or the Basic Cooperation Agreements of UNICEF. 129

  UNDP has the authority to conclude agreements with states for the establishment of country offices ([1991] UN Juridical YB, at 300). UNHCR similarly enters into agreements that provide for the enjoyment of municipal legal personality, eg the agreements with Kuwait ([1996] UN Juridical YB, at 104) and Venezuela ([1993] UN Juridical YB, at 132). 130

  For example, the UN Volunteers. See n 124.

131

  For example, the practice of UNICEF and UNRWA. See Practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, n 102, 1967, II, p 207. See also Schermers and Blokker, n 3, paras 1591, 1771. For this power, see generally section 2.5, ‘Relationship to powers’. 132

  The Practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, n 102, p 222. See also Relations between States and international organizations (second part of the topic). The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, n 80, p 152. 133

  [1990] UN Juridical YB, at 276–7.

134

  The Practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat, n 102, p 222. 135

  ibid.

136

  [1990] UN Juridical YB, at 256.

137

  ibid; see also [1988] UN Juridical YB, at 312.

138

  [2000] UN Juridical YB, at 352.

139

  ibid, at 354.

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140

  ibid, at 353–4. It would seem that the reason for requiring General Assembly authorization is that a request for this would alert the OLA to a potential risk relating to privileges and immunities, enabling it to assess this risk before authority is forthcoming.

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Part 2 The United Nations: What it is, 12 The United Nations and International Law Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): UN Charter — Customary international law — Codification — State practice

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(p. 413) 12  The United Nations and International Law 1.  Introduction 12.01 2.  The development of international law by the UN 12.02 3.  The interpretation of international law by the UN 12.10 4.  The application of international law to the UN in particular treaties 12.14 5.  The obligation of the UN to comply with international law 12.16 6.  The effect of the UN Charter on international law: Article 103 12.30 Akande, ‘The International Court of Justice and the Security Council: Is there Room for Judicial Control of Decisions of the Political Organs of the United Nations?’ (1997) 46(2) ICLQ 30; den Dekker, ‘Absolute Validity, Absolute Immunity: Is there Something Wrong with Article 103 of the UN Charter?’ in What’s Wrong with International Law (eds Ryngaert, Molenaar, and Nouwen, 2016); Higgins, ‘The United Nations at 70 Years: The Impact upon International Law’ (2016) 65 ICLQ 1; Hossain, ‘The Concept of Jus Cogens and the Obligation under the UN Charter’ (2005) 3 Santa Clara JIL 1; International Law Commission Study Group, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc A/CN.4/L.682 (2006); Kadelbach, ‘Interpretation of the Charter’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012); Kolb, L’article 103 de la Charte des Nations Unies (2014); Leiæ and Paulus, ‘Article 103’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012); Liivoja, ‘The Scope of the Supremacy Clause of the United Nations Charter’ (2008) 57 ICLQ 583; Sciso, ‘Fundamental Rights and Article 103 of the UN Charter before the Court of First Instance of the European Communities’ (2005) 15 Ital YIL 135; Zacklin, The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies (2005).

(p. 414) 1.  Introduction 12.01  The UN is a subject of international law.1 It develops international law and is, to a certain extent, subject to international law obligations. The UN Charter is interpreted in the light of international law. Under Article 103 of the Charter, the UN can, through the Security Council, create obligations for member states that prevail over international law obligations.

2.  The development of international law by the UN 12.02  Although the UN Charter did not envisage that the organization would be engaged in direct law-making,2 it is now well accepted that the political organs of the UN do make international law.3 The political bodies of the UN are a relevant forum in which to find various sources of law, including treaties and customary international law. The UN is a forum for state practice by its members, and UN organs contribute to the development and clarification of law.4 12.03  The UN has convened and facilitated conferences directed to resolving international law problems through treaty-making.5 This approach has been less common in (p. 415) recent years. Law-making resolutions of the General Assembly have attempted to fulfil the same function.6 The International Court of Justice (ICJ) has explained that a General Assembly resolution may, exceptionally, have normative value. This is determined by looking at its content and the conditions of its adoption, and whether an opinio juris exists.7 A series

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of resolutions may demonstrate the gradual evolution of the opinio juris required for a new rule of customary international law.8 12.04  The Security Council has also played a role in the law of treaties by encouraging their negotiation,9 endorsing them, finding them obsolete,10 and enforcing and interpreting their provisions.11 The Council may render the obligations in a treaty binding on non-states parties and other entities that are otherwise not bound by its provisions.12 Security Council action brought the provisions of the Agreement on the establishment of the Special Tribunal for Lebanon into effect, even though it had not entered into force for the Government of Lebanon under the terms of the Agreement.13 12.05  The development of international law at the UN has at times involved tensions between member states, reflecting divergent regional interests.14 (p. 416) 12.06  The UN’s practice with regard to the admission and non-admission of states and the participation of other entities in the work of the organization,15 has influenced the international law on statehood and recognition.16 12.07  Despite the limited reference to human rights in its Charter,17 the UN has played an important role in developing human rights, in terms both of substance18 and the structures for monitoring and enforcing rights. This development has taken place, inter alia, through the human rights treaty bodies and special procedures,19 the Office of the High Commissioner for Human Rights,20 the Human Rights Council,21 the General Assembly,22 and the Security Council.23 (p. 417) 12.08  One of the major contributions of the UN to the development of international law is the concept of peacekeeping,24 and the evolution of that concept through ‘robust peacekeeping’, ‘partnership peacekeeping’ that engages regional organizations, and ‘multidimensional peacekeeping’.25 As of December 2016, there have been 71 peacekeeping operations since 1948, despite there being no mention of peacekeeping in the UN Charter. 12.09  Some international law initiatives have not been as successful as others. The concept of the Responsibility to Protect (R2P) resulted from an initiative of a Canadian commission,26 but was only included in the UN’s World Summit Outcome Document in 2005 in modified form. It has had mixed results in practice27 and its status is uncertain.28

3.  The interpretation of international law by the UN 12.10  The rules of treaty interpretation as reflected in the Vienna Convention on the Law of Treaties (VCLT) apply to the UN Charter.29 According to Article 31(3)(c) of the VCLT, (p. 418) ‘[a]ny relevant rules of international law applicable in the relations between the parties’ may be taken into account. As far as the UN is concerned, the Charter prevails over other treaty obligations as between the parties due to Article 103.30 However, the priority of the UN Charter in case of conflict between different treaty obligations does not exclude the possibility that other treaties are relevant to the meaning of a term of the Charter.31 On the other hand, the Charter already influences the answer to the question whether or not a conflict between treaties exists; those treaty provisions have to be read in light of the Charter.32 Similar considerations apply regarding customary law.33 Any treaty, including the Charter, is thus to be interpreted and applied ‘within the framework of the entire legal system prevailing at the time of its interpretation’.34 12.11  Proposals to reserve the authority to interpret the Charter to the ICJ or the General Assembly were not successful.35 Each principal organ establishes its own jurisdiction and exercises its own interpretative power in relation to the Charter.36 The ICJ, as the principal judicial organ, interprets the UN Charter through advisory and contentious proceedings.37

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12.12  The General Assembly, as plenary organ, has influenced the interpretation of the UN Charter38 in institutional matters,39 in international law concepts,40 and as regards (p. 419) peace and security.41 The Security Council has the more specific mandate of maintaining peace and security, but it has engaged in influential interpretation of the Charter. It has interpreted and modified Charter provisions on membership42 and voting.43 A ‘threat to the peace’ under Article 39 has evolved to include humanitarian crises, and ‘armed attack’ in Article 51 has been applied to terrorism.44 Military measures that have been taken under Chapter VII differ from what was originally conceived of in Articles 42, 43, and 47 of the UN Charter.45 It has established criminal tribunals and compensation commissions,46 and become engaged in territorial administration.47 12.13  The Secretariat, especially the UN Legal Counsel, is engaged in Charter interpretation on a daily basis.48 The Secretary-General plays a role in interpreting the Charter, and different holders of this office have focused on particular topics.49 Member states, supranational organizations, and their courts are also interpreters of the UN Charter.50

4.  The application of international law to the UN in particular treaties 12.14  The UN can enter into treaties and be held liable for violations of treaties to which it is a party.51 The capacity of the UN to enter into treaties has been confirmed by (p. 420) the ICJ.52 In practice, many treaties do not allow international organizations to become parties, even if all the states that are party to the treaties are also members of the organization.53 For example, no human rights treaty provides for the possibility of the UN being a party.54 Nonetheless, the UN is a party to 650 treaties listed in the United Nations Treaty Series (UNTS) database.55 12.15  The existence of a legal obligation on the UN based on a treaty is a separate issue from a policy position that the UN should subscribe to the same standards it urges states to apply.56 Although the UN may not be a party to a treaty, the treaty may expressly provide for action by, for example, the Security Council.57

5.  The obligation of the UN to comply with international law 12.16  Each organ of the UN is bound by law. The Charter is a legal framework that defines their powers and functions.58 (p. 421) 12.17  The Security Council in particular has the potential to come into conflict with international law obligations, including human rights, in performing its role.59 Its powers are broad but not unlimited.60 12.18  Article 24(2) of the UN Charter provides that ‘the Security Council shall act in accordance with the Purposes and Principles of the United Nations’. These are set out in Articles 1 and 2 of the Charter. They include the purpose ‘to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace’; the principle of non-intervention, except that it ‘shall not prejudice the application of enforcement measures under Chapter VII’;61 and international cooperation in promoting and encouraging respect for human rights and fundamental freedoms.62 Some interpret Article 1(1) of the Charter as meaning that the Council is always bound to act in accordance with justice and international law; for others, the obligation is limited to the adjustment or settlement of disputes or situations (action under Chapter VI rather than Chapter VII),63 but this is not the better view.64

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12.19  With regard to the last purpose and principle, the question is which human rights obligations bind the Council? One view is that the Council, and the UN more generally, is bound by those rights that are proclaimed in instruments adopted within the organization.65 Another view is that the Council is bound by ‘fundamental (p. 422) principles of human rights’.66 At a minimum, the Security Council may not violate jus cogens norms.67 12.20  There is a presumption that the Security Council does not intend to impose any obligation on member states to breach fundamental principles of human rights.68 A member state has some latitude in implementing a Security Council resolution so as to respect human rights.69 12.21  As to the legal effects of a decision of the Council that goes beyond its powers, there is debate as to whether ultra vires decisions are void or voidable.70 (p. 423) 12.22  Article 25 of the UN Charter provides that member states must ‘carry out the decisions of the Security Council in accordance with the present Charter’. There are at least two interpretations. First, members must carry out only the Council decisions made in accordance with the Charter (including the obligation to promote universal respect for and observance of human rights).71 Second, members must only carry out any decision of the Council in such a way that the Charter’s purposes and principles are served.72 Under either view, the Security Council has Charter-based obligations to respect and observe human rights under Articles 1(3), 24(2), and 55(c), and member states have an obligation to do the same under Article 56.73

5.1  Peacekeepers and international humanitarian law 12.23  As the UN’s engagement in peacekeeping has intensified over the decades, questions have arisen as to whether UN peacekeeping forces should be subject to the rules of international humanitarian law (IHL). It is now well accepted that IHL applies to UN peacekeeping operations74 whenever the conditions for its application are met.75 The nature of those conditions and the scope of application76 remain somewhat controversial. 12.24  The UN is not party to the Geneva Conventions and their Additional Protocols.77 In order for customary rules of IHL to apply, a UN peacekeeping force must be (p. 424) considered a ‘party to an armed conflict’, which requires engaging in a sufficiently intense level of hostilities against another organized armed force.78 The notion of a ‘party to a conflict’ raises tensions with the idea of the impartiality or neutrality of UN peacekeeping operations. Troop-contributing countries are concerned that the application of IHL will make their personnel lawful targets in the armed conflict. 12.25  The UN has developed its own approach to the application of IHL through internal documents. In 1963, the Secretary-General issued regulations for the United Nations Forces in the Congo (ONUC), providing that the forces should ‘observe the principles and spirit of the general international conventions applicable to the conduct of military personnel’.79 In 1999, the Secretary-General issued an internal Bulletin on ‘Observance by United Nations Forces of International Humanitarian Law’.80 It sets out minimum ‘fundamental principles and rules of international humanitarian law applicable to United Nations forces conducting operations under United Nations command and control’,81 but falls short of voluntarily undertaking concrete human rights and humanitarian law commitments.82 12.26  The UN typically includes a commitment to conduct its operations ‘with full respect for the principles and rules of the international conventions applicable to the conduct of military personnel’ in its status of forces agreements (SOFAs).83 These agreements (p. 425) include a corresponding undertaking by the host state to treat peacekeepers ‘with full respect for the principles and rules of the international conventions applicable to the conduct of military personnel’. They usually require the host state to ensure that the provisions of the Convention on the Safety of United Nations and Associated Personnel apply to the peacekeeping operation.84 However, the Safety Convention, by its own terms, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

does not apply to peacekeeping operations under Chapter VII in which any of the personnel ‘are engaged as combatants against organized armed forces and to which the law of international armed conflict applies’.85 12.27  The UN is not a party to the Statute of the ICC, but that Statute provides that attacks on peacekeepers are war crimes, whether in the context of a conflict of an international or a non-international character, ‘as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict’.86

5.2  Territorial administration and human rights law 12.28  The extent to which the UN is bound by human rights obligations is particularly relevant when it is engaged in international administration of territory.87 The UN is, in essence, acting in the place of a state.88 The UN is not a party to human rights treaties,89 but human rights law is deemed to be applicable on the territory it is administering through regulations passed by the Special Representatives of the Secretary-General (SRSG).90 That law is applicable law in the territory and binds the territorial (p. 426) administration. The Security Council resolution establishing the territorial administration may also refer to respect for human rights in the implementation of its mandate.91 12.29  Implementation of human rights is supervised by both existing and new mechanisms. It was in the context of the UNMIK that the UN first submitted to a human rights supervisory mechanism, the Human Rights Committee.92 In 2006, the Human Rights Advisory Panel (HRAP) was created by UNMIK Regulation 2006/12 to examine claims from individuals and groups regarding alleged violations of human rights by UNMIK.93 Its establishment was unprecedented in the context of UN missions.94 The Panel had jurisdiction to hear a wide range of complaints of human rights violations allegedly attributable to UNMIK under all the international instruments applicable in Kosovo.95 It concluded operations in 2016.96 Unfortunately, UNMIK failed to take any meaningful action in relation to the Panel’s recommendations.97

(p. 427) 6.  The effect of the UN Charter on international law: Article 103 12.30  Article 103 of the UN Charter provides: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. 12.31  The scope of Article 103 is unclear and a topic of debate.98 The minimum that can be agreed is that it extends to obligations that: are concerned with fulfilling UN Charter principles, including those listed in Articles 1 and 2; result from a binding decision of the Security Council under Article 25 (and Article 48); arise ‘under any other international agreement’.99 There is emerging consensus that the priority that Article 103 gives to the UN Charter over ‘international agreements’ is also applicable to rules of customary international law.100 It is widely agreed that there are no exceptions to the obligations under treaty and customary law over which Charter obligations prevail, other than jus cogens norms.101 12.32  The consequences of an act that is incompatible with Article 103 are also contested in the literature.102 One view is that Article 103 invalidates the conflicting agreement.103 Another view differentiates between conflicts of norms with primary Charter law and secondary Charter law, and conflicts with treaties between UN member states and between members and non-members.104 The dominant view is that Article 103 (p. 428) only

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suspends or sets aside the incompatible norm (or the specific provision thereof) to the extent of the conflict.105 12.33  A series of cases in the European courts106 has considered the potential human rights violations caused by Security Council sanctions,107 and in that context has addressed the legal effects of Article 103 of the UN Charter. The ECtHR also has to choose the interpretation of the resolution that is most in harmony with human rights obligations, and which avoids any conflict of obligations arising from Article 103.108 ‘It is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law.’109 Judicial review of the lawfulness of a measure in the light of fundamental freedoms is not excluded by the fact that a measure is intended to give effect to a Security Council Chapter VII Resolution.110

Footnotes: 1

  See ch 9, ‘Powers’, ch 11, ‘The Legal Personality of the United Nations’, and ch 13, ‘Responsibility of the United Nations’. The International Court of Justice (ICJ) has held that ‘[i]nternational organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties’: Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion), ICJ Rep 1980, p 73, para 37. See also Reparation for Injuries suffered in the Service of the United Nations (Advisory Opinion), ICJ Rep 1949, p 174; Amerasinghe, Principles of the Institutional Law of International Organizations (2005), 386. 2

  Art 13(1)(a) of the UN Charter provides that the General Assembly shall initiate studies and make recommendations for the purposes of ‘promoting international cooperation in the political field and encouraging the progressive development of international law and its codification’. The General Assembly established the International Law Commission, which has the object of the ‘promotion of the progressive development of international law and its codification’. See also ch 25, ‘Promotion of International Law’, section 2, ‘The International Law Commission’. 3

  Higgins, Development of International Law through Political Organs of the United Nations (1963). 4

  ‘To this extent, the UN political organs provide sources formelles—the evidences of a recognized source of law in the form of state practice showing the existence of a custom. All of the UN decisions and resolutions, in various ways, contribute to the gradual development of international law and provide some probative evidence as to opinio juris’: Higgins, ‘The United Nations and Law-making: The Political Organs’ (1970) 64 ASIL Proceedings 37–48. 5

  For example, the UN was the forum for the drafting of the Convention on the Prevention and Punishment of the Crime of Genocide (ECOSOC Ad Hoc Committee and the Sixth Committee). Other treaties negotiated under UN auspices have aimed to fill gaps in the law, eg, International Convention against the Taking of Hostages, 17 December 1979 (entered into force on 3 June 1983), 1316 UNTS 205; Convention for the Suppression of Unlawful Seizure of Aircraft, 16 December 1970 (entered into force on 14 October 1971), 860 UNTS 105; International Convention for the Suppression of Terrorist Bombings, 15 December 1997 (entered into force on 23 May 2001), 2149 UNTS 256; International Convention for the Suppression of the Financing of Terrorism, 9 December 1999 (entered into force on 10

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April 2002), 2178 UNTS 229; International Convention for the Suppression of Acts of Nuclear Terrorism, 13 April 2005 (entered into force on 7 July 2007), GA Res 59/290 (2005). 6

  General Assembly resolutions are not normally binding (save on budgetary matters). See further ch 2, ‘General Assembly’. 7

  Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) ICJ Rep 1996, p 226, para 70. 8

  ibid.

9

  SC Res 635 (1989), urging the International Civil Aviation Organization (ICAO) to devise an international regime for the marking of plastic or sheet explosives for the purposes of detection, following the Lockerbie incident. 10

  It has played such a role from the beginning of the UN, eg, Egypt’s request in 1947 that the Security Council find the 1936 Anglo-Egyptian Treaty obsolete, and the similar request by Tunisia in 1958 regarding the 1955 Franco-Tunisian Conventions. See Higgins, n 3, 344– 5. 11

  Talmon, ‘Security Council Treaty Action’ (2009) 62 Revue Hellenique de Droit International 65; Papastavridis, ‘Security Council Resolutions and the Law of Treaties: Lessons of Iraq’ (2005) 18 Public Law Applications 405. 12

  See, eg, SC Res 1929 (2010), para 5, calling upon Iran to act strictly in accordance with the provisions of the Additional Protocol to its Safeguards Agreement, which it had signed but not ratified; SC Res 1593 (2005) providing that the Government of Sudan (a non-state party to the Statute of the International Criminal Court (ICC)) ‘shall cooperate fully with and provide any necessary assistance to the Court and Prosecutor’; SC Res 1718 (2006) demanding that North Korea retract its announcement of withdrawal from the NonProliferation Treaty and ‘return to the treaty’ and ‘act strictly in accordance with the obligations under the Treaty on the Non-Proliferation of Nuclear Weapons and the terms and conditions of its International Atomic Energy Agency (IAEA) Safeguards Agreement’; SC Res 1373 (2001) requiring all states to comply with the International Convention for the Suppression of Terrorist Financing of 1999, which at the time had not entered into force. While the Council can clearly impose obligations on states, it is an open question whether it can impose a treaty as such. See Wood, ‘The Law of Treaties and the UN Security Council: Some Reflections’ in The Law of Treaties beyond the Vienna Convention (ed Cannizarro, 2011), 244, at 249–52. 13

  SC Res 1757 (2007) deciding that the provisions of the annexed document (the Agreement) shall enter into force on 10 June 2007. See Michel, ‘Establishment of the Special Tribunal for Lebanon’ in The Special Tribunal for Lebanon: Law and Practice (eds Alamuddin, Jurdl, and Tolbert, 2014). 14

  See, eg, the debates surrounding GA Res 1803 (1962), the Declaration on

Permanent Sovereignty over Natural Resources. This Resolution declared inviolable the right to permanent sovereignty over natural resources and the right to nationalize or expropriate on the grounds of ‘public utility, security or the national interest’ (para 13). It required the payment of ‘appropriate compensation’ (para 14). The concept of permanent sovereignty was reaffirmed in the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). However, later GA Res 3201 (1974) and GA Res 3281 (1974) have not achieved the same consensus in state practice and opinio juris. See also the role of the developing countries in initiating the negotiations for the UN Convention on the Law of the Sea, and influencing the

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process to ensure that their special interests and needs were addressed. Anand, Legal Regime of the Sea-Bed and the Developing Countries (1976), 182. 15

  See ch 8, ‘Membership’.

16

  For example, the UN has allowed certain participation by ‘permanent observers’. These may be non-member states of the UN that are members of one or more specialized agencies (eg, the Holy See), intergovernmental organizations (eg, the European Union (EU)), or other entities relevant to the work of the UN (eg, the International Committee of the Red Cross (ICRC)). The practice around granting Palestine status as a non-member observer state (GA Res 67/19 (2012)) has had repercussions for other bodies, such as the ICC. On 2 January 2015, Palestine deposited its instrument of accession to the ICC Statute with the UN Secretary-General. The Secretary-General, in discharging his functions as a depositary of a convention with an ‘all States’ clause, followed the practice of the General Assembly in implementing such a clause, and accepted Palestine’s accession to the ICC Statute. Palestine became the 123rd State Party to the ICC Statute. Depositary Notification of Accession to the Rome Statute of the International Criminal Court by the State of Palestine 6 January 2015, CN13.2015.Treaties-XVIII.10. 17

  Art 1(3) refers to respect for human rights and fundamental freedoms; Art 55 refers to promoting ‘universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’. 18

  Different parts of the UN played vital roles in developing the legal concept of selfdetermination. The concept is found in Art 1 of the ICCPR and the ICESCR (1966). The ICJ articulated that it was a right of all colonial peoples in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) ICJ Rep 1971, p 16 and Western Sahara (Advisory Opinion) ICJ Rep 1975, p 226. The Human Rights Committee has consistently told states that the right to self-determination requires that a free choice as regards the government and form thereof be afforded to peoples on a continuing basis. 19

  See ch 22, ‘Promotion and Protection of Human Rights’, particularly section 5, ‘Human rights treaties and treaty bodies’. 20

  See ch 22, ‘Promotion and Protection of Human Rights’, particularly section 4, ‘Office of the United Nations High Commissioner for Human Rights’. 21

  See ch 22, ‘Promotion and Protection of Human Rights’, particularly section 3, ‘The Human Rights Council’. 22

  The Third Committee (Social, Humanitarian, and Cultural) covers human rights issues, such as questions relating to the advancement of women, the protection of children, indigenous issues, the treatment of refugees, the promotion of fundamental freedoms through the elimination of racism and racial discrimination, and the right to selfdetermination. See further ch 22, ‘Promotion and Protection of Human Rights’, particularly section 2.2, ‘General Assembly’. 23

  See, eg, resolutions calling for the application of human rights in armed conflict (SC Res 1483 (2003)), condemning the use of child soldiers (SC Res 1612 (2005)), urging the prevention of sexual violence in armed conflict and in post-conflict environments (SC Res 2106 (2013)). The Council has also ordered military intervention in response to mass human rights violations, see SC Res 1975 (2011) reaffirming that the UN Operation in Cote D’Ivoire could use ‘all necessary means’ to protect civilians under imminent threat of physical violence. See ch 22, ‘Promotion and Protection of Human Rights’, particularly section 2.3, ‘The Security Council’.

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24

  The deployment of UN forces on a voluntary basis, operating on the territory of a state generally with its consent. See Higgins, ‘The UN at 70 Years: The Impact upon International Law’ (2016) 65 ICLQ 1, 11–13; and ch 13, ‘Responsibility of the United Nations’, particularly section 9, ‘Responsibility of the UN in peacekeeping operations’. 25

  See ch 13, ‘Responsbility of the United Nations’, particularly section 9, ‘Responsibility of the UN in peacekeeping operations’. ‘Multidimensional peacekeeping’ aims to facilitate the political process on the ground; protect civilians; assist in the disarmament, demobilization, and reintegration of former combatants; support the organization and conduct of elections; protect and promote human rights; and assist in restoring the rule of law. 26

  International Commission on Intervention and State Sovereignty (ed), The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (2001). 27

  The Security Council’ s action with regard to Libya in 2011 has highlighted the controversy over R2P and perhaps made states more cautious about its invocation: SC Res 1973 (2011). See Higgins, n 24, 18; and Berman and Michaelsen, ‘Intervention in Libya: Another Nail in the Coffin for the Responsibility-to-Protect?’ (2012) 14 International Community Law Review 337. 28

  Secretary-General Ban Ki-moon has confirmed that R2P does not impose an obligation on the Security Council to act. The doctrine and the Charter give the Council ‘a wide degree of latitude to determine the most appropriate course of action’ (which could include inaction due to use of the veto). Responsibility to protect: timely and decisive response, Report of the Secretary-General, UN Doc A/66/874, S/2012/578 (2012), para 54. 29

  The rules in Arts 31–32 of the VCLT reflect customary international law. See, eg, Kasikili/ Sedudu Island (Botswana and Namibia), ICJ Rep 1999, p 1045, para 18. Art 5 of the VCLT confirms that it applies to the constituent instruments of international organizations. The topic of interpretation of the UN Charter and other constituent instruments has been under consideration by the Seventh Commission of the Institut de droit international (Rapporteur: Mahnoush H Arsanjani) since 2003, under the title ‘Are there limits to dynamic interpretation of the constitutions and statutes of international organizations by the internal organs of such organizations, having special reference to the UN system?’. 30

  See section 6, ‘The effect of the UN Charter on international law: Article 10/3’.

31

  Kadelbach, ‘Interpretation of the Charter’ in The Charter of the United Nations: A Commentary (vol I, 3rd edn, eds Simma et al, 2012), 78. 32

  ibid.

33

  Part of the UN Charter reflects customary international law. Military and Paramilitary Activities in and against Nicaragua ICJ Rep 1986, p 14, paras 172–213. 34

  Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) ICJ Rep 1971, p 16, para 53. 35

  Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) ICJ Rep 1962, p 151, at 168; Sohn, ‘The UN System as Authoritative Interpreter of its Law’ in United Nations Legal Order (vol 1, eds Schachter and Joyner, 1995), 169, at 171–4. 36

  Kadelbach, n 31, 90. The practice of organs indicates their understanding of the Charter.

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37

  See ch 29, ‘The International Court of Justice’. Even though Advisory Opinions are technically not binding, the organs that request them tend to accept the Opinions and act accordingly: Amerasinghe, n 1, 27. Many contentious disputes have concerned UN Charter interpretation, including cases on the use of force and self-defence (Oil Platforms (Islamic Republic of Iran v United States of America) ICJ Rep 2003, p 161; Legality of the Use of Force cases ICP Rep 2004, p 279; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) ICJ Rep 2005, p 168; Military and Paramilitary Activities in and against Nicaragua, p 14) and the right to self-determination (East Timor (Portugal v Australia) ICJ Rep 1995, p 90, para 29). 38

  Even though its resolutions are non-binding (except in budgetary matters), they may modify the UN Charter, depending on the subject matter, wording, voting results and circumstances, and connection to the terms of the Charter: Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) ICJ Rep 1971, p 16, para 104; Military and Paramilitary Activities in and against Nicaragua, p 14, paras 188, 195. 39

  For example, departing from the terms of the Charter with respect to the number of representatives of each member in the General Assembly (Art 9(2)), the participation of observers (on which the Charter is silent), the replacement of formal vote by consensus (Art 18), and in creating subsidiary bodies in its own right (Art 22) and together with other organs. Kadelbach, n 31, 92. 40

  See the shaping of customary international law in the Friendly Relations Declaration (GA Res 2625 (XXV) (1970)); the Definition of Aggression (GA Res 3314 (XXIX) (1974)); the condemnation of apartheid (GA Res 1761 (XVII) (1962)). On self-determination, see Zacklin, The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies (2005), 188–95. 41

  Uniting for Peace, GA Res 377 (V) (1950). See Certain Expenses of the United Nations (Advisory Opinion) ICJ Rep 1962, p 151, at 163–5. 42

  For example, in assuming that under Art 23(1), the Republic of China since 1971 means the People’s Republic of China, and that the Union of Soviet Socialist Republics means the Russian Federation since 1991. Kadelbach, n 31, 93. 43

  See ch 10, ‘Voting’. See the interpretation of ‘procedural’ in Art 27(2) and ‘concurring’ in Art 27(3). 44

  See ch 3, ‘The Security Council’. SC Res 1368 (2001) and 1373 (2001).

45

  See ch 13, ‘Responsibility of the United Nations’, particularly section 9, ‘Responsibility of the UN in peacekeeping operations’. 46

  See ch 31, ‘Criminal Tribunals Established by, or in Relationship with, the UN’, section 1, ‘International Criminal Tribunal for the Former Yugoslavia’ and section 2, ‘International Criminal Tribunal for Rwanda’. See also ch 30, ‘United Nations Compensation Commission’. 47

  See section 5.2, ‘Territorial administration and human rights law’, and ch 28, ‘Peaceful Settlement of Disputes’, particularly section 2.2.5, ‘Mission for referendum and territorial administration’. 48

  Selected opinions are published in the UN Juridical Yearbook. On the role and influence of the legal opinions of the Secretariat, see Schachter, ‘The Development of International Law through the Legal Opinions of the United Nations Secretariat’ (1948) 25 BYIL 91, at 101.

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49

  Boutros Boutros-Ghali emphasized cooperation between the UN and regional organizations and UN support for democracy. Kofi Annan urged the General Assembly and Security Council to protect and promote human rights. Ban Ki-moon has placed a priority on the climate change pact and the Sustainable Development agenda. 50

  See para 12.33. Such interpretations have been important in cases regarding review of targeted sanctions imposed by Security Council resolutions. 51

  This customary notion is reflected in the essence of the Vienna Convention on the Law of Treaties between States and International Organizations and between International Organizations 1986, not yet in force. 52

  Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) ICJ Rep 1962, p 151, at 168. See Brolmann, ‘International Organizations and Treaties: Contractual Freedom and Institutional Constraints’ in Research Handbook on the Law of International Organizations (eds Klabbers and Wallenclahl, 2011). 53

  Exceptions include the European Convention on Human Rights (ECHR, which allows the EU to accede to it in Art 59(2)), the Convention on the Rights of Persons with Disabilities (which allows regional integration organizations to be parties, Art 44), and the Convention on Action against Trafficking in Human Beings (which allows the European Community, now the EU, to be a party, Art 42(1)). 54

  Quenivet, ‘Binding the United Nations to Human Rights Norms by way of the Law of Treaties’ (2011) 42 George Washington International Law Review 587, at 592. The UN cannot prima face be directly bound by human rights treaties: Megret and Hoffmann, ‘The UN as a Human Rights Violator? Some Reflections on the United Nations’ Changing Human Rights Responsibilities’ (2003) 25 HRQ 314, at 316. 55

  See at http://treaties.un.org/. These range from the VCLT to Exchange of notes between the Government of the United Kingdom of Great Britain and Northern Ireland and the United Nations Interim Administration Mission in Kosovo (UNMIK) concerning the transfer of Mr Luan Goçi to the jurisdiction of the United Kingdom of Great Britain and Northern Ireland. Not all treaties concluded by international organizations (IOs) are registered in the UNTS database. The obligation to register treaties with the Secretariat in Article 102(1) of the Charter does not apply to international organizations, but only to ‘any Member of the United Nations’. See also UN Doc A/Res/97(I) (1946) and UN Doc A/Res/52/153 (1997). 56

  Arbour, Address at the Opening of the Judicial Year 2008 of the European Court of Human Rights, 25 January 2008 (saying it is ‘a matter of sound policy’ that the UN ‘should ensure its own operations and processes subscribe to the same standards of rights protection which are applicable to individual states’). 57

  Art 16, ICC Statute.

58

  Wood, ‘The UN Security Council and International Law’, Second Hersch Lauterpacht Memorial Lecture, University of Cambridge, 8 November 2006, para 3. 59

  See, eg, the Council’s work on counter-terrorism, imposing targeted sanctions, and authorizing the use of force. 60

  The powers of the Council in the field of peace and security are ‘open textured and discretionary’, but that does not mean they are unlimited; Wood, n 58, para 6, citing Lamb, ‘Legal Limits to UN Security Council Powers’ in The Reality of International Law: Essays in Honour of Ian Brownlie (1999), 361. 61

  UN Charter, Art 2(7). This could in theory impose limits on the Security Council, except where it is taking enforcement action under Chapter VII, but the reserved domain of Art

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2(7) has shrunk with the expansion of international law, so that in practice this is not a genuine limitation. Nolte, ‘Article 2(7)’ in Simma et al (eds), n 31, 148, paras 75–80. 62

  UN Charter, Arts 1(3) and 55(c). Akande, ‘The Security Council and Human Rights: What is the role of Article 103 of the Charter?’ EJIL:Talk!, 30 March 2009; Akande, ‘The International Court of Justice and the Security Council: Is there Room for Judicial Control of Decisions of the Political Organs of the United Nations?’ (1997) 46(2) ICLQ 309. 63

  See Akande, ‘The International Court of Justice and the Security Council’, n 62, 317–20 (discussing the different interpretations given in the case law and academic commentary). 64

  The ICJ said in 1948, in Conditions of Admission of a State to Membership in the United Nations (Article 4 of Charter) (Advisory Opinion) ICJ Rep 1948, p 57, at 64: ‘The political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers and criteria for its judgment. To ascertain whether an organ has freedom of choice for its decisions, reference must be made to the terms of the constitution.’ See also the International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber in Tadić, ‘neither the text not the spirit of the Charter conceives of the Security Council as legibus solutus (unbound by law)’: Prosecutor v Tadić, Case No IT-94-1-AR72, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para 28. This is different from the question of whether the actions of organs are subject to judicial review. 65

  Those instruments are to be regarded as an elaboration of the rights provided for in the UN Charter. This would not mean the Council is or should be bound by them when acting under Chapter VII. ‘The ICCPR (and other treaties) provide for derogations in time of public emergency which threaten States. An analogous position must apply to the Council. If States can derogate from their obligations in order to safeguard domestic peace and security, the Council ought to be able to derogate in order to safeguard international peace and security. By definition every Chapter VII resolution implicates international peace and security. Thus, when one thinks about human rights norms that bind the Council when acting under Chapter VII one ought to think about non-derogable rights. One also ought to think about how derogable rights are to be interpreted when derogations have been made’: Akande, ‘The Security Council and Human Rights’, n 62. 66

  European Court of Human Rights (ECtHR) in Al-Jedda v UK App no 27021/08 (ECHR, 7 July 2011), at para 10: ‘[T]here must be a presumption that the Security Council does not intend to impose any obligation on any Member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a Security Council Resolution, the Court must therefore choose the interpretation which is most in harmony with the requirement of the (European) Convention and which avoids any conflict of obligations.’ That view gives rise to the question of what is a fundamental principle of human rights. 67

  See the Separate Opinion of Judge ad hoc Lauterpacht in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Further Requests for the Indication of Provisional Measures) ICJ Rep 1993, p 325, para 100: ‘The relief which Article 103 of the Charter may give the Security Council in case of conflict between one of its decisions and an operative treaty obligation cannot—as a matter of simple hierarchy of norms—extend to a conflict between a Security Council resolution and jus cogens. Indeed, one only has to state the opposite proposition thus—that a Security Council resolution may even require participation in genocide—for its unacceptability to be apparent.’ See also the Court of First Instance in Kadi: ‘[I]nternational law…permits the inference that there exists one limit to the principle that resolutions of the Security Council have binding effect: namely, that they must observe the fundamental peremptory provisions of jus cogens. If they fail to do so, however improbable that may be, they would bind neither the Member States nor the United Nations, nor, in consequence, of the Community.’ Case T-315/01 Yassin Abdullah From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Kadi v Council of the EU and Commission of the European Communities (CFI, 21 September 2005), para 230. 68

  Al-Jedda v UK App no 27021/08 (ECHR (Grand Chamber), 7 July 2011), para 102; that presumption was rebutted on the facts in Nada v Switzerland, App no 10593/08 (ECHR (Grand Chamber), 12 September 2012). 69

  Nada v Switzerland, App no 10593/08 (ECHR (Grand Chamber), 12 September 2012), para 180. Switzerland should have proved to the Court that it had taken or attempted to take all possible measures to adapt the sanctions regime to the applicant’s individual situation. 70

  See ch 3, ‘The Security Council’, particularly section 8, ‘Functions’. Akande, ‘International Organizations’ in International Law (ed Evans, 2014), ch 9: if decisions are voidable only, this would be problematic, as there is no procedure by which a competent body can decide that decisions of the Security Council are illegal. Akande argues the better view is that ultra vires decisions—but not those merely suffering some minor procedural defect—are a nullity. See also Judge Morelli in Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) ICJ Rep 1962, p 151, at 222: ‘In the case of acts of international organizations…there is nothing comparable to the remedies existing in domestic law in connection with administrative acts. The consequence of this is that there is no possibility of applying the concept of voidability to the acts of the United Nations. If an act of an organ of the United Nations had to be considered as an invalid act, such invalidity could constitute only the absolute nullity of the act. In other words, there are only two alternatives for the acts of the Organization: either the act is fully valid, or it is an absolute nullity, because absolute nullity is the only form in which invalidity of an act of the Organization can occur.’ 71

  Paust ‘The UN is Bound by Human Rights: Understanding the Full Reach of Human Rights, Remedies and Nonimmunity’ (2010) 51 Harv ILJ online 1, at 4. Wood, n 58, para 19, stating that this interpretation does not mean that a SC Res cannot be ultra vires, but it should mean that a member state cannot rely on the words of Art 25 to claim the unilateral right to decide that it will not comply with a Council decision. 72

  Paust, n 71, 4.

73

  Which incorporates Art 55(c) by reference (ibid, 5).

74

  Operations conducted under UN command and control; cf operations authorized by the UN and conducted under regional/national command and control. See UN Doc A/CN.4/637/ Add.1 (2011), p 10. 75

  Greenwood, ‘International Humanitarian Law and United Nations Military Operations’ (1998) 1 Ybk IHL 3; Shraga, ‘The United Nations as an Actor Bound by International Humanitarian Law’ (1998) 5 International Peacekeeping 64; Akande, ‘Classification of Armed Conflicts: Relevant Legal Concepts’ in International Law and the Classification of Conflicts (ed Wilmshurst, 2012), 64; Grenfell, ‘Perspective on the Applicability of International Humanitarian Law: The UN Context’ (2013) 95 IRRC 645; Zwanenburg, United Nations and International Humanitarian Law (2015); the Max Planck Encyclopedia of Public International Law (MPEPIL). 76

  This includes the question whether IHL applies to peacekeepers in areas where they are not engaged in combat and carrying out non-enforcement tasks, such as humanitarian relief. This is increasingly relevant, given the multidimensional mandates of peacekeeping missions.

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77

  A proposal that Additional Protocol I include a provision under which the Geneva Conventions would be open for accession by the UN, to apply ‘each time the forces of the United Nations are engaged in operations’, was not adopted. This followed the explanation on behalf of the Secretary-General that ‘accession would raise questions as to the legal capacity of the Organisation to become a party to multilateral treaties.…Chiefly, the lack of certain competences, including the lack of territorial jurisdiction and of disciplinary and penal authority, would make it impossible for the Organisation to discharge many of the obligations laid down in the Geneva Conventions’: UN Doc A/8781 (1972), para 18; cf Reparation of Injuries Suffered in the Service of the United Nations (Advisory Opinion) ICJ Rep 1949, p 174 (the UN is a subject of international law and capable of possessing international rights and duties). 78

  Grenfell, n 75, 647, 650. The Secretary-General’s Bulletin on ‘Observance by United Nations Forces of International Humanitarian Law’, UN Doc ST/SGB/1999/13 (1999), states that IHL applies to UN forces, ‘when in situations of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement. [IHL is] accordingly applicable in enforcement actions, or in peacekeeping operations when the use of force is permitted in self-defence’ (section 1.1). 79

  UN Doc ST/SGB/ONUC/1 (1963), Art 43.

80

  The Secretary-General’s Bulletin, n 78. This document is binding only within the UN. It was prepared at the request of the Special Committee on Peacekeeping Operations, UN Doc A/50/230 (1995), para 73. See also Secretary-General’s Report, In larger freedom: towards development, security and human rights for all, UN Doc A/59/2005, para 113: ‘United Nations peacekeepers and peacebuilders have a solemn responsibility to respect the law themselves, and especially to respect the rights of the people whom it is their mission to help.’ 81

  The Bulletin does not distinguish between international and non-international armed conflicts. Section 2 refers to obligations regarding: the protection of the civilian population; means and methods of combat; the treatment of civilians and persons hors de combat; the treatment of detained persons; and the protection of the wounded, the sick, and medical and relief personnel. It states that its provisions ‘do not constitute an exhaustive list of principles and rules of international humanitarian law binding upon military personnel, and do not prejudice the application thereof, nor do they replace the national laws by which military personnel remain bound throughout the operation’. 82

  For critique, see White, ‘Towards a Strategy for Human Rights Protection in PostConflict Situations’ in The UN, Human Rights and Post-Conflict Situations (eds White and Klaasen, 2005), 465 (suggesting the UN formally recognize the applicability of human rights to peace operations). 83

  These are entered into with the territorial state where the peacekeeping operations will be based. Interestingly, this provision does not appear in the ‘Model status-of-forces agreement for peacekeeping operations’ (UN Doc A/45/594 (1990), but it has been included in SOFAs since the UN concluded a SOFA with the Rwanda in respect of the UN Assistance Mission in Rwanda (UNAMIR) in 1993, 1748 UNTS 3: Grenfell, n 75, 649. Such SOFAs tend not to be ready at the outset of a mission, however, and the 1990 model SOFA applies pending their conclusion. 84

  Convention on the Safety of United Nations and Associated Personnel, 9 December 1994, 2051 UNTS 363 (entered into force 15 January 1999).

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85

  Art 2(2). If a UN peacekeeping operation were to become a party to an international armed conflict, the peacekeepers would lose the protection of the Safety Convention. It would appear to continue to apply where the UN peacekeeping operation is a party to a non-international armed conflict: Grenfell, n 75, 649–50; Bourloyannis-Vrailas, ‘The Convention on the Safety of United Nations and Associated Personnel’ (1995) 44 ICLQ 567; Report of the Secretary-General, Scope of legal protection under the Convention on the Safety of United Nations and Associated Personnel, UN Doc A/55/637 (2000). 86

  Art 8(2)(b)(iii) and (e)(iii), ICC Statute. See Pacholska, ‘(Il)legality of Killing Peacekeepers: The Crime of Attacking Peacekeepers in the Jurisprudence of International Criminal Tribunals’ (2015) 13(1) JICJ 43 (noting that existing jurisprudence fails adequately to accommodate the possibility of peacekeepers’ becoming parties to the conflict). 87

  See also ch 28, ‘Peaceful Settlement of Disputes’, particularly section 2.2.5, ‘Mission for referendum and territorial administration’. See generally Kolb, Porretto, and Vité, L’Articulation des règles de droit international humanitaire et de droits de l’homme applicables aux forces internationales et aux administrations civiles internationales transitoires (2003); Cameron, ‘Accountability of International Organisations Engaged in the Administration of Territory’ (2006), thesis, University Centre for International Humanitarian Law; Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (2010), 144–6. 88

  This is not always clear-cut. In the case of UNMIK, the UN exercised all sovereign powers but the Government of Serbia and Montenegro retained legal sovereignty over the territory. As regards United Nations Transitional Administration in East Timor (UNTAET), there was no other sovereign government. 89

  See para 12.14.

90

  See, eg, with respect to UNMIK, On the Authority of the Interim Administration in Kosovo, UNMIK Regulation 1999/1, 25 July 1999, Section 2; and On the Law Applicable in Kosovo, UNMIK Regulation 1999/24, 12 December 1999, Section 1.3. Kolb, Porretto, and Vité, n 87, 138–50. 91

  For example, on the establishment of UNMIK, see SC Res 1244 (1999), para 11(j).

92

  The Human Rights Committee had, in its comment on Serbia’s report, encouraged UNMIK to provide a report on the situation of human rights in Kosovo since June 1999 (UN Doc CCPR/CO/81/SEMO (2004)). UNMIK submitted reports and comments in 2006 and 2008: UN Doc CCPR/C/UNK/1 (2006) and UN Doc CCPR/C/UNK/CO/1/Add. 1 (2008). UNMIK also concluded with the Contingent Owned Equipment (COE) agreements providing for the application of the Framework Convention for the Protection of National Minorities and the European Convention for the Prevention of Torture: COE Doc Nos CM/Del/ Dec(2004)890/2.1b/appendix2E (2004) and CM/Del/Dec(2004)890/2.1b.appendix3E (2004). 93

  Section 17 of the Regulation provided that the Panel ‘shall issue findings as to whether there has been a breach of human rights and, where necessary, make recommendations’. It also provided that the SRSG shall have exclusive authority and discretion to decide whether to act on the findings of the Panel. Both the Panel’s findings and recommendations and the SRSG’s decision were to be published promptly. 94

  It was the only human rights mechanism that dealt specifically with human rights violations allegedly committed by or attributable to a UN field mission. The HRAP was composed of three Panel Members who sat in Prishtinë/Priština each month to render determinations on complaints against UNMIK. The Presiding Member directed the work of

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the Panel, and the Prishtinë/Priština-based Secretariat provided it with legal and administrative support. 95

  See On the Law Applicable in Kosovo, UNMIK Regulation 1999/24, 12 December 1999, Section 1.3, which provided that ‘[i]n exercising their functions, all persons undertaking public duties or holding public office in Kosovo shall observe internationally recognized human rights standards’. It the listed the following international human rights instruments as those in which such standards are reflected: the Universal Declaration of Human Rights (UDHR), the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and the Protocols thereto (ECHR), the International Covenant on Civil and Political Rights of 16 December 1966 and the protocols thereto (ICCPR), the International Covenant on Economic, Social and Cultural Rights of 16 December 1966 (ICESCR), the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 (ICERD), the Convention on the Elimination of All Forms of Discrimination against Women of 17 December 1979 (CEDAW), the Convention against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment of 17 December 1984 (CAT), and the Convention on the Rights of the Child of 20 December 1989 (CRC). See also On the Authority of the Interim Administration in Kosovo, UNMIK Regulation 1999/1, 25 July 1999, Section 2. 96

  The HRAP’s temporal jurisdiction was over complaints relating ‘to alleged violations of human rights that had occurred not earlier than 23 April 2005 or arising from facts which occurred prior to this date where these facts give rise to a continuing violation of human rights’. UNMIK’s responsibility with regard to justice and police in Kosovo was transferred on 9 December 2008 to the EU, which established the European Union Rule of Law Mission in Kosovo (EULEX). The HRAP’s competence was limited to facts occurring before that date. 97

  The Human Rights Advisory Panel History and Legacy Kosovo, 2007–2016, Final Report (30 June 2016), para 64. The HRAP observed that ‘the human rights system as a whole is weakened when states can observe the UN—one of the main guardians of the world’s human rights system—itself failing to live up to the obligations it has promoted’ (para 72). See Klein, ‘Le Panel consultatif des droits de l’homme (Human Rights Advisory Panel) de la MINUK: une étape dans le processus de responsabilisation des Nations Unies?’ in Perspectives of International Law in the 21st century. Liber Amicorum Christian Dominicé (eds Kohen et al, 2012), 225–55; Stahn, The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond (2008), 308–31. 98

  Klabbers, An Introduction to International Institutional Law (2nd edn, 2009), 225–6; Liivoja, ‘The Scope of the Supremacy Clause of the United Nations Charter’ (2008) 57 ICLQ 583. The ICJ has not directly addressed the issue. See Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v UK) (Provisional Measures) ICJ Rep 1992, p 3; Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Provisional Measures) ICJ Rep 1993, p 325. 99

  Though the scope of ‘any other international agreement’ is unclear. Liivoja, n 98, 585, 591. 100

  Leiæ and Paulus, ‘Article 103’ in Simma et al (eds), n 31, 53; Wood, n 12, 254.

101

  Wood, n 12, 254.

102

  Leiæ and Paulus, n 100, paras 75–80.

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103

  Kelsen, ‘Conflicts between Obligations under the Charter of the United Nations and Obligations under other International Agreements: An Analysis of Article 103 of the Charter’ (1948–49) 10 University of Pittsburgh Law Review 284, 288f; Jaenicke, ‘Zur Frage des internationalen Ordre Public’ (1967) 7 DGVR Berichte 77, at 96; Barberis, ‘La Liberté de Traiter des Etats et le Jus Cogens’ (1970) 30 ZöV 19, at 30. Further references in Kadelbach, Zwingendes Völkerrecht (1992), 28, fnn 15 and 16. 104

  When a treaty between members contradicts an obligation under the UN Charter, the norm is unenforceable and void ab initio independently of the time of its conclusion, at least with a view to the clause that is incompatible with the Charter. If there is a conflict between a treaty—that is not per se incompatible with the substance of primary UN Charter law— and a Chapter VII resolution, the conflicting norm is suspended only as long as the Security Council resolution is in force: Leiæ and Paulus, n 100, para 76. 105

  See Wood, n 12, 253; International Law Commission Study Group, Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, UN Doc A/CN.4/L.682 (2006); Bentwich and Martin, A Commentary on the Charter of the United Nations (2nd edn, 1951), 179f; Sciso, ‘On Article 103 of the Charter of the United Nations in the Light of the Vienna Convention on the Law of Treaties’ (1987) 38 ÖZöR 161, at 168–71; Zemanek, ‘The Legal Foundations of the International System—General Course on Public International Law’ (1997) 266 RCADI 230; Dupuy, ‘L’Unité de l’Ordre Juridique International. Cours Général de Droit International Public (2000)’ (2002) 297 RCADI 9; Liivoja, n 98, 596f. Wood gives the example that if a sanctions regime is incompatible with the rights of navigation under the Danube Convention, it is obvious that the effect of Art 103 is not to void the provisions of the Danube Convention, even for the target state, but to give priority to the Charter obligations whilst they subsist (Wood, n 12, 253–4). 106

  ECtHR and the Court of Justice of the European Union (CJEU).

107

  Al-Jedda v the United Kingdom App no 27021/08 (ECHR (Grand Chamber), 7 July 2011); Nada v Switzerland App no 10593/08 (ECHR (Grand Chamber), 12 September 2012): SC Res 1390 (2002); Al-Dulimi and Montana Management Inc v Switzerland App no 5809/08 (ECHR (Grand Chamber), 21 June 2016); Joined Cases C‑584/10 P, C‑593/10 P, and C‑595/10 P Commission and Others v Kadi (‘Kadi II’) (CJEU, 18 July 2013). 108

  Al-Dulimi and Montana Management Inc v Switzerland, n 107, para 140.

109

  ibid. In the case of Mr Al-Dulimi, the ECtHR held that SC Res 1483 (2003) did not exclude domestic judicial review of his inclusion on the sanctions list. That review would be minimal, limited to ensuring that the listing was not arbitrary. In this way, the SC Res did not conflict with Art 6(1) of the ECHR (paras 145–9). 110

  Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351, para 299; and Kadi II, n 107.

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Part 2 The United Nations: What it is, 13 Responsibility of the United Nations Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): Immunity from jurisdiction — Responsibility of international organizations — Attribution

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(p. 429) 13  Responsibility of the United Nations 1.  Introduction 13.01 2.  Attribution of conduct 13.08 3.  Allocating responsibility between the UN and member states 13.13 4.  Unequal access to dispute settlement mechanisms 13.28 5.  Immunity of the UN in national proceedings 13.29 6.  Circumstances precluding wrongfulness 13.30 7.  Consequences of a finding of responsibility 13.35 8.  The implementation of the international responsibility of an international organization 13.45 9.  Responsibility of the UN in peacekeeping operations 13.48 Aznar Gómez, ‘La responsabilidad internacional de las organizaciones internacionales por daños al patrimonio cultural causados por sus misiones de paz’ in Estudios de derecho internacional y derecho europeo en homenaje al profesor Manuel Pérez González (ed Cardona Llorens, (2012), 167; d’Aspremont, ‘The Articles on the Responsibility of International Organizations: Magnifying the Fissures in the Law of International Responsibility’ (2012) 9 International Organizations Law Review 15; Daudet, ‘La responsabilité des Nations Unies’ in La responsabilité en droit public: aspects contemporains (2005); Dominicé, ‘La responsabilité internationale des Nations Unies’ in La Charte des Nations Unies: commentaire article par article (eds Cot and Pellet, 2005); Eagleton, ‘International Organization and the Law of Responsibility’ (1950) 76(1) RCADI 319, (on the UN) at 335; Gowlland-Debbas, ‘The Security Council and Issues of Responsibility under International Law’ (2012) 353 RCADI 185; Hartwig, ‘International Organizations or Institutions, Responsibility and Liability’ (2011) MPEPIL; Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens (1998); Pérez González, ‘Les organisations internationales et le droit de la responsabilité’ (1988) 92 RG 63; Ragazzi (ed), Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie (2013); Sarooshi (ed), Responsibility and Remedies for the Unlawful Acts of International Organizations (2013); Schrijver, ‘Srebrenica voorbij: de volkenrechtelijke immuniteit van de Verenigde Naties’ (2013) 143 Handelingen der Nederlandsche Juristen-Vereeniging 211; Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanctions (2011); United Nations International Law Commission, Draft Articles on the Responsibility of International Organizations with Commentaries (2011).

(p. 430) 1.  Introduction 1.1  Overview 13.01  The question of the responsibility of international organizations only attracted significant attention after 1985, following the bankruptcy of the International Tin Council (ITC) and the subsequent litigation in UK courts.1 The question has since been considered in depth by international bodies,2 and has been the subject of Draft Articles on the Responsibility of International Organizations (DARIO) finalized by the International Law Commission (ILC) in 2011. There are aspects, however, that remain uncertain due to the limited applicability of the principles of state responsibility to the UN, the status of the DARIO as progressive development rather than codification of international law, the few express statements on responsibility in international instruments,3 as well as scant

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practice.4 At the same time, the engagement of the UN in peacekeeping and territorial administration increases its potential exposure to claims of responsibility for internationally wrongful acts.5 The UN has been implicated in the cholera epidemic in Haiti,6 lead poisoning of the Roma in Kosovo,7 and child abuse by peacekeepers in the Central African Republic.8 (p. 431) 13.02  The practice in this area draws a distinction between accountability for acts of commission versus acts of omission, and for public versus private acts—this being without prejudice to the legal, and often moral, responsibility of the organization. 13.03  The chapters in this volume on legal personality (chapter 6), and the powers (chapter 9) and immunities (chapter 16) of the UN should also be consulted.

1.2  Draft Articles on the Responsibility of International Organizations 13.04  The DARIO are heavily based on the ILC Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), with many Articles being identical save for the reference to ‘State’ or ‘international organization’.9 The analogy with the allocation of responsibility in an inter-state context is nevertheless hard to maintain. International organizations like the UN have limited competence, limited funds, no territory, and no population for creating material resources.10 There are many tensions and contradictions in applying state-based principles to the UN,11 without paying due attention to the principle of speciality.12 13.05  The potential application of the DARIO is limited by lex specialis,13 but it provides that an international organization may not rely on its rules as justification for failure to comply with obligations relating to the legal consequences of an internationally wrongful act.14 Those rules could, however, entail the international (p. 432) responsibility of an international organization. The practice of the UN illustrates the challenge of identifying such rules.15 The DARIO may lead to the emergence of a law of responsibility of international organizations, but at this stage there is insufficient practice and, in fact, the DARIO often depart from the UN norms.16

1.3  Internationally wrongful act 13.06  Before responsibility can be determined, it must be established that the UN was bound by a primary obligation of international law.17 The UN is a party to over 650 treaties listed in the United Nations Treaty Series (UNTS) database, but few of these are lawmaking treaties.18 Moreover, the extent to which the UN is bound by customary international law is controversial.19 For example, the UN has only expressly declared its willingness to be bound by the ‘fundamental’ principles of international humanitarian law.20 (p. 433) 13.07  Nonetheless, if the UN commits a wrongful act,21 its responsibility will be entailed. This has been acknowledged by the Secretary-General22 and the International Court of Justice (ICJ).23

2.  Attribution of conduct 2.1  Attribution of the conduct of a UN organ or agent 13.08  Conduct that may be attributed to the UN includes that of its principal and subsidiary organs, as well as that of its ‘agents’.24 These ‘agents’ may be its officials, as well as other persons acting for the organization on the basis of functions conferred by a UN organ.25 The organization acts through a wide variety of persons and entities, going beyond

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the categories of ‘staff’, ‘officials’, or ‘experts on mission’ referred to in the UN Charter and the Convention on Privileges and Immunities.26

(p. 434) 2.2  Attribution of conduct of organs of a state or organs or agents of another international organization placed at the disposal of the UN 13.09  The most common scenario in which a state organ is placed at the disposal of the UN is peacekeeping, where military contingents are contributed to UN missions. Typically, the state retains disciplinary powers and criminal jurisdiction over the members of the military contingent. The operational control of UN operations is in principle held by the unified UN command, but in practice actual command and control are often retained by the individual troop-contributing countries.27 13.10  Outside the context of peacekeeping, a disaster relief unit established by the UN could engage the responsibility of the UN.28 A regional body placed at the disposal of a UN agency has been held to be capable of engaging the responsibility of that UN agency.29

2.3  Attribution of conduct performed ultra vires 13.11  In the limited practice of the UN regarding attribution for conduct performed ultra vires,30 the test for attribution is whether the act related to the functions of the organization.31 The UN assumes responsibility for ultra vires acts of its organs or individuals acting as its agents; the violation of the internal distribution of powers does not absolve the organization of responsibility.32 In its Advisory Opinion on Certain Expenses of the United Nations, the ICJ stated: If it is agreed that the action in question is within the scope of the functions of the Organization but it is alleged that it has been initiated or carried out in a manner not in conformity with the division of functions among the several organs which the Charter prescribes, one moves to the internal plane, to the internal structure of the Organization. If the action was taken by the wrong organ, it was irregular as a matter of that internal structure, but this would not necessarily mean that the expense incurred was not an expense of the Organization. Both national and international law contemplate (p. 435) cases in which the body corporate or politic may be bound, as to third parties, by an ultra vires act of an agent.33 13.12  The ICJ has also asserted the UN’s responsibility for ultra vires acts of persons other than UN officials.34

3.  Allocating responsibility between the UN and member states 3.1  Membership does not automatically entail responsibility 13.13  The baseline is that membership of the UN as such does not entail international responsibility for member states, whether concurrent or subsidiary, when the organization commits an internationally wrongful act, such as the breach of a treaty obligation.35 The question of what more is needed has not yet been clearly answered. 13.14  Allocating responsibility for the breach of treaty obligations is essential to international cooperation. If there is a low threshold for a member state to be held responsible for the breach by the UN, it may discourage states from becoming members and entrusting tasks to the organization. However, an unrealistically high threshold may encourage the abuse of rights by member states,36 and provide a disincentive for the UN to engage in risky activities, such as peacekeeping.

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3.2  Responsibility of a member state in connection with the conduct of the UN 13.15  A member state may be responsible (in a subsidiary sense) for an internationally wrongful act of the UN if it accepted responsibility for that act towards the injured party, or led the injured party to rely on its responsibility.37 (p. 436) 13.16  In theory, a member state may also incur responsibility if it ‘circumvents’ an international obligation by causing the UN to commit an act that, if committed by the state, would have constituted a breach of the obligation.38 However, apart from the challenge of proving intent,39 it is rather implausible that an individual member state could cause the UN to commit a breach of an international obligation. It seems that this scenario would only arise in the context of small organizations with limited membership and a decision-making structure that allows domination by one member state.40 13.17  In a series of cases, the European Court of Human Rights (ECtHR) has upheld the principle that a member state may be held responsible for a treaty breach by an international organization, but it has not found any violations on the facts.41 Although the ECtHR has made clear that the mere transfer of competence by a state to an organization does not absolve it of its responsibility under the European Convention on Human Rights (ECHR) in the areas covered by the transfer, the Court has not specified the test for incurring that responsibility. It would appear that a member state would not easily be held responsible, especially where there has been an effort to make available alternative and ‘equivalent’ means for satisfying ECHR requirements within the international organization.42

(p. 437) 3.3  Responsibility of the UN in connection with the act of a state or another international organization through aid and assistance in committing an internationally wrongful act 13.18  The UN would be responsible for an internationally wrongful act by a state or another organization if it aided or assisted the commission of the act with the knowledge of the circumstances.43 This possibility was first raised in the context of the United Nations Mission in the Democratic Republic of the Congo (MONUC), where the UN faced a ‘political–moral dilemma’44 of whether to continue assisting Government-led forces45 in their military operations against armed groups as mandated by the Security Council, or to decline to do so given the knowledge that in the course of such operations Government forces were committing serious violations of human rights and humanitarian law against the civilian population, whose protection had also been mandated by the Security Council.46 13.19  In Security Council Resolution 1856 (2008), the Secretary-General had devised a ‘conditionality policy’ stating the conditions for MONUC assistance.47 It provided that MONUC was not to participate or support operations with FARDC units if ‘there were substantial grounds for believing that there was a real risk that such units would violate international humanitarian, human rights or refugee law in the course of the operation’.48 In Security Council Resolution 1906 (2009), the Security Council approved the SecretaryGeneral’s conditions and called upon MONUC to ‘intercede with the FARDC command if elements of a FARDC unit receiving MONUC’s support are suspected of having committed grave violations of such laws’; and if the situation persisted, for MONUC to withdraw its support from the units.49

(p. 438) 3.4  Responsibility of the UN in connection with the act of a state or another international organization through authorizing an

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internationally wrongful act or authorizing a mission that commits an internationally unlawful act 13.20  The UN may incur international responsibility by adopting a decision binding on member states to commit an act that would be internationally wrongful if committed by the UN.50 It is highly unlikely that this scenario would arise, as member states would usually have an alternative course that would not involve committing an internationally wrongful act. The Kadi case in the European system clarified that the binding nature of Security Council resolutions does not override the protection of fundamental rights in domestic or regional law.51 13.21  The UN may also incur international responsibility if it circumvents an international obligation by authorizing member states to commit an act that would be internationally wrongful if committed by the UN, and the act in question is committed because (p. 439) of that authorization.52 This scenario is also remote, not least because of the difficult of showing causation.53 13.22  The UN is constantly navigating the broader relationship between authorization and responsibility in its peacekeeping operations.54 This can be seen in a letter from the UN Secretary-General to the Prime Minister of Rwanda in 1996: [I]nsofar as ‘Opération Turquoise’ is concerned, although that operation was ‘authorized’ by the Security Council, the operation itself was under national command and control and was not a United Nations operation. The United Nations is, therefore, not internationally responsible for acts and omissions that might be attributable to ‘Opération Turquoise’.55 13.23  The ECtHR has controversially attributed to the UN the acts of a UN-authorized operation International Security Force in Kosovo (KFOR) conducted under regional command and control, on the grounds that the Security Council had ‘delegated’ its powers to the operation and had ‘ultimate authority and control’.56 13.24  A different situation is where the UN receives claims for damages or costs incurred as a result of the implementation of Security Council sanctions. The practice of the UN has been to reject the responsibility of the organization: states are responsible for the costs of carrying out enforcement measures under Chapter VII of the Charter.57

(p. 440) 3.5  Responsibility of member states towards third parties for an internationally wrongful act of the UN 13.25  Views are divided on the question of responsibility of member states when an international organization of which they are members commits an internationally wrongful act. The Institut de droit international adopted a resolution in 1995, stating: Save as specified in article 5, there is no general rule of international law whereby States members are, due solely to their membership, liable, concurrently or subsidiarily, for the obligations of an international organization of which they are members.58 13.26  Lord Kerr, in the English Court of Appeal in the ITC litigation, said that he could not find any basis for concluding that it has been shown that there is any rule of international law, binding upon the member States of the ITC, whereby they can be held liable—let alone jointly and severally—in any national court to the creditors of

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the ITC for the debts of the ITC resulting from contracts concluded by the ITC in its own name.59 13.27  With regard to an alleged rule of international law imposing on ‘States members of an international organization, joint and several liability for the default of the organization in the payment of its debts unless the treaty which establishes the international organization clearly disclaims any liability on the part of the members’, Lord Templeman found that ‘[n]o plausible evidence was produced of the existence of such a rule of international law before or at the time of ITA6 [the Sixth International Tin Agreement] in 1982 or afterwards’.60

4.  Unequal access to dispute settlement mechanisms 13.28  The uncertainty surrounding the attribution of responsibility between the UN and member states concerns not only the allocation of responsibility, but also the legal consequences of joint or concurrent responsibility. As already observed, states and international organizations have unequal access to dispute settlement by the ICJ. In (p. 441) a dispute over shared responsibility, the responsibility of the UN will be part of the ‘very subject matter’ and will require the appearance of the organization before Court, which is not possible under the ICJ Statute.61 Thus, the dispute would be dismissed for the absence of a necessary third party,62 leaving only the circuitous and non-binding Advisory Opinion route. Unlike certain other international organizations, the UN does not have inspection panels,63 though its oversight body, the Office of Internal Oversight Services (OIOS), conducts investigations and inspections.64

5.  Immunity of the UN in national proceedings 13.29  If the dispute is brought before national courts, it is likely to be dismissed on the basis of the entitlement of the member state and/or the UN to immunity.65 The Dutch Supreme Court has held the UN was immune from claims that it was responsible, at least in part, for failing to prevent the 1995 genocide at Srebrenica.66 United States courts have held the UN enjoys immunity from jurisdiction under Section 29 of the General Convention in the case concerning allegations that it is responsible for the introduction of cholera to Haiti through, among other things, its failure to screen Nepalese peacekeepers.67 The UN’s usual practice is to invoke its immunity in (p. 442) such cases. It has very occasionally made ex gratia payments for injury or damage caused by its agents.68

6.  Circumstances precluding wrongfulness 6.1  Consent 13.30  Valid consent by a member state or an organization to the commission of an act by the UN would preclude the wrongfulness of that act in relation to that state or the former organization to the extent that the act remains within the limits of that consent.69 States may, for example, consent to allowing an investigation to be carried out on their territory by a board of inquiry or commission of inquiry set up by the Security Council,70 or to the verification of the electoral process.71 This consent is a precondition for the conduct of the UN on the territory (except for Chapter VII peacekeeping operations). In traditional peacekeeping operations, where consent is withdrawn, the UN has usually withdrawn its forces.72 There have to date been no instances of an unlawful act by the UN being remedied by consent of a state.73

6.2  Countermeasures

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13.31  For international organizations of ‘quasi-universal membership’, such as those of the UN system, the possibility for their respective member states to take countermeasures against them would either be severely limited by the operation of the rules of those organizations, or would be subject to a lex specialis to the extent that the (p. 443) rules of the organization do not prevent the adoption of countermeasures by its member states.74 13.32  In practice the UN has never qualified a particular action as a countermeasure. The decisions of the General Assembly to exclude apartheid South Africa from meetings in the 1970s75 and the former Yugoslavia in the 1990s,76 were not qualified as such.77 There is a principle of ‘cooperation and good faith’ guiding relations between the UN and its member states.78

6.3  Self-defence 13.33  Self-defence could operate as a circumstance precluding wrongfulness,79 but it has not yet arisen in the context of the UN’s responsibility being invoked for a breach of the prohibition on the use of force. In the practice of the UN, the term ‘self-defence’ has been used not with regard to Article 51 of the UN Charter, but rather in the context of selfdefence by peacekeeping forces in situations of armed conflict.80 The UN has accepted liability for certain types of damage incurred in the course of military operations, whether offensive or defensive in nature.81

6.4  Necessity 13.34  The UN employs a concept of ‘necessity’ different from that used in the law on state responsibility.82 The principle of ‘operational necessity’ has been applied by the UN to preclude responsibility for property loss or damage caused during peacekeeping operations, but it is not a consistent practice.83

(p. 444) 7.  Consequences of a finding of responsibility 7.1  Obligation of member states to enable the organization to make reparation 13.35  Damages or compensation to be paid by the UN would form part of its expenses and therefore be included in the budget of the organization, to be shared by member states according to the scale of assessments.84

7.2  Compensation 13.36  The most common form of reparation is compensation. The UN has paid compensation on multiple occasions to settle claims arising from peacekeeping operations. The most well-known example is the settlement of claims arising from the UN Operations in the Congo. Compensation to nationals of Belgium, Switzerland, Greece, Luxembourg, and Italy was granted through exchanges of letters between the Secretary-General and the permanent missions of the respective states in keeping with the UN declaration contained in these letters stating that the UN ‘would not evade responsibility where it was established that United Nations agents had in fact caused unjustifiable damage to innocent parties’.85 13.37  In a letter dated 6 August 1965, addressed to the Permanent Representative of the Soviet Union, the Secretary-General said: It has always been the policy of the United Nations, acting through the SecretaryGeneral, to compensate individuals who have suffered damages for which the Organization was legally liable. This policy is in keeping with generally recognized legal principles and with the Convention on Privileges and Immunities of the United Nations. In addition, in regard to the United Nations activities in the Congo, it is reinforced by the principles set forth in the international conventions concerning the protection of the life and property of the civilian population during hostilities as

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well as by considerations of equity and humanity which the United Nations cannot ignore.86 (p. 445) 13.38  A resolution of the General Assembly sets out financial and temporal limitations on third-party liability resulting from peacekeeping operations.87 This includes injuries as well as other losses, such as non-consensual use by peacekeepers of premises.88 The payment of compensation is subject to various limitations, including limiting compensable loss to economic loss and capping compensation.89 Compensation paid by the UN may be reduced due to contributory negligence.90 13.39  The UN may require a signed release from the claimant before payment is made, and it may reserve the right to seek reimbursement from a government.91 The UN has made commercial arrangements to cover third-party claims for personal injury and death resulting from gross negligence or wilful misconduct, and vehicle and aircraft accidents. The principle of UN responsibility for combat-related damage and damage caused in the course of the operational activities of its forces has generally been accepted as a rule of customary international law.92 13.40  Compensation outside of the peacekeeping context is governed by financial regulations pertaining to, inter alia, the UN Headquarters District in New York.93

7.3  Ex gratia payments 13.41  The UN occasionally makes ex gratia payments to persons injured by its activities. The Secretary-General may make such payments ‘as are deemed necessary in the interest of the Organization’.94 In practice such payments are approved by the Under-SecretaryGeneral for Management; the Legal Counsel must be of the opinion that that there is no clear liability on the part of the UN but that payment is in the interest of the organization.95 The underlying assumption is that even though the conduct may be attributed to the UN, the responsibility is not attributable. The view of the OLA is that an ex gratia payment cannot be made if responsibility (p. 446) is legally entailed—the appropriate response in such a case would be payment of compensation ‘as a matter of obligation’.96 In cases where an ex gratia payment is made, as with compensation payments, the UN usually requires the signing of a release in advance, and may reserve the right to seek reimbursement from a state.97

7.4  Arbitration or negotiated settlement 13.42  It is a long-established policy and practice of the UN to engage in arbitration and other negotiated or agreed forms of settlement in certain circumstances.98

7.5  Satisfaction 13.43  Where restitution and compensation are insufficient or inappropriate, the UN may give satisfaction by acknowledging a breach, expressing regret, or issuing a formal apology.99 13.44  The UN’s failures to prevent the tragedies in Srebrenica and Rwanda have elicited expressions of regret from the Secretary-General.100 At the same time, the Secretariat emphasized that these examples ‘do not expressly refer to the existence of a breach of an obligation under international law’.101

(p. 447) 8.  The implementation of the international responsibility of an international organization 8.1  Invocation

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13.45  The international responsibility of an international organization may be invoked other than by a state or another international organization.102

8.2  Nationality of claims and the local remedies rule 13.46  The question of nationality is not relevant to the admissibility of a claim against the UN.103 There has been limited practice by the UN regarding the exhaustion of local remedies. It would appear that the requirement to exhaust local remedies depends on the circumstances of the claim.104

8.3  Concurrent claims 13.47  Where more than one state or international organization is injured by the same internationally wrongful act of the UN, each injured party may separately invoke the responsibility of the UN.105

9.  Responsibility of the UN in peacekeeping operations 9.1  ‘Effective control’ of peacekeeping operations 13.48  The Secretary-General declared in 1996 that the UN would bear responsibility for all acts conducted under the effective control of the organization.106 This is the guiding (p. 448) principle in determining the responsibilities of the UN and troop-contributing countries (TCCs). The challenge is that troops placed at the disposal of the UN may be both ‘fully seconded’ to the UN, in that they are subsidiary organs, and subject, at least in part, to the operational control of the TCC.107 13.49  There is a distinction between ‘United Nations operations conducted under United Nations command and control’ and ‘United Nations-authorized operations conducted under national or regional command and control’. The UN Secretariat has observed that ‘United Nations operations conducted under United Nations command and control are subsidiary organs of the United Nations’ and ‘[t]hey are accountable to the Secretary-General under the political direction of the Security Council’.108 The ‘long-established position’ of the UN is that forces placed at its disposal are ‘transformed’ into a subsidiary organ and therefore entail the responsibility of the organization, like any other subsidiary organ, regardless of whether the control exercised over all aspects of the operation was in fact ‘effective’.109 The ‘effective control’ test therefore applies to the UN-authorized operations conducted under national or regional command and control, but not to UN operations conducted under UN command and control.110 The UN has placed importance on the degree of control that the TCC retains over disciplinary and criminal matters.111 (p. 449) 13.50  Several variations on the ‘effective control’ test have been developed in the case law of international, regional, and national courts. It has been used by the ICJ to determine the responsibility of states for the acts of non-state actors on another state’s territory.112 The International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber purported to develop its own, less stringent standard of ‘overall control’,113 but the ICJ explained in the Bosnia Genocide judgment of 2007 that the ICTY was not called upon to rule on questions of state responsibility, since its jurisdiction was criminal and limited to individuals. Thus, the ICTY had addressed an issue that ‘was not indispensable for the exercise of its jurisdiction’.114 The ICJ reaffirmed the test of ‘effective control’ in the context of state responsibility.115 (p. 450) 13.51  The ECtHR used the test of ‘ultimate authority and control’ to attribute to the UN responsibility for the acts of the Kosovo Force.116 It applied this test in later cases.117 However, in a case concerning an operation not authorized by the UN, the ECtHR returned to the language of ‘effective command and control’ to attribute the conduct of UK

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forces in Iraq to the UK.118 The ECtHR’s practice in this area has been controversial and not widely accepted. 13.52  Dutch and Belgian courts have concluded that certain conduct was under the ‘effective control’ of the TCC and it was therefore responsible.119 The UN was not a party to any of these proceedings, but the Dutch Supreme Court noted that more than one party can have effective control, and ‘the possibility cannot be excluded that application of this criterion could result in the attribution to more than one party’; the conduct could be attributed to both the UN and the TCC.120 The attribution would be based on factual control over the specific conduct, taking into account all the factual circumstances and the special context of the case.121

(p. 451) 9.2  Responsibility for the off-duty acts of peacekeepers 13.53  In general, the ‘off-duty’ conduct of a member of a national military contingent would not be attributed to the UN, but the ‘on-duty’ conduct may be so attributed. The guiding principle is whether the person was acting in a non-official/non-operational capacity when the conduct arose.122

Footnotes: 1

  The question of the responsibility of the UN in relation to the operation in the Congo (Opération des Nations Unies au Congo (ONUC)) had arisen in the early 1960s. Hartwig, ‘International Organizations or Institutions, Responsibility and Liability’ (2011) MPEPIL, para 5. 2

  Institut de droit international, The Legal Consequences for Member States of the NonFulfilment by International Organizations of their Obligations toward Third Parties, Resolution at the Lisbon Session 1995 (Rapporteur: Rosalyn Higgins); International Law Association, Final Report on the Accountability of International Organizations (2004) (CoRapporteurs: Malcolm Shaw and Karel Wellens). 3

  Few treaties expressly establish the responsibility of an international organization for breaches: eg, the 1972 Convention on International Liability for Damage Caused by Space Objects and the 1982 UN Convention on the Law of the Sea (UNCLOS), Annex XI, Art 5. The UN Charter is silent. 4

  The limited practice is due to, among other things, the lack of use of third-party dispute settlement procedures and the non-disclosure by states and international organizations (ILC, Report of the International Law Commission, 63rd session (26 April–3 June and 4 July– 12 August 2011), UN Doc A/66/10 (2011), p 70). 5

  The Office of Legal Affairs (OLA), eg, emphasized that the capacity of the UN Interim Administration Mission in Kosovo to conclude bilateral agreements on behalf of Kosovo should not engage the responsibility of the UN or create any legal, financial, or other obligation for the organization ([2005] UN Juridical YB 461). 6

  See section 5, ‘Immunity of the UN in national proceedings’.

7

  For example, the Human Rights Advisory Panel (HRAP) of the UN Mission in Kosovo (UNMIK) issued an opinion noting that UNMIK had commissioned a report in 2000 that found extremely elevated blood–lead levels in affected community members living in the internally displaced persons camps, but that UNMIK did not make the report public and failed to take sufficient action to address the risks of lead exposure in the camps. It recommended that UNMIK publicly acknowledge its failure to comply with applicable human rights standards in response to the adverse health condition caused by lead contamination, and to compensate victims for both material and moral damage. NM and Others v UNMIK, Case No 26/08, 26 February 2016. The HRAP was an advisory body that

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only had the power to issue recommendations to the Special Representative of the Secretary-General. 8

  For example, ‘Taking action on sexual exploitation and abuse by peacekeepers’, Report of an Independent Review on Sexual Exploitation and Abuse by International Peacekeeping Forces in the Central African Republic, 17 December 2015. 9

  An exception is the ‘circumvention of responsibility’ in DARIO Arts 61 and 17, which has no equivalent in the ARSIWA. 10

  Hartwig, n 1, para 25.

11

  See the critical perspective of a senior UN Secretariat official in Shraga, ‘ILC Draft Articles on Responsibility of International Organizations—the Interplay between the Practice and the Rule’ (2011) ASIL Proceedings 351, criticizing in particular DARIO Arts 5 and 6 for their departure from UN practice and DARIO Arts 8, 14, and 15 for their lack of support by practice. The ILC transformed the exceptional nature of derivative responsibility (conduct attributable to another subject of international law) into a general rule in the DARIO, without paying sufficient attention to the fact that organizations act almost exclusively through their member states while states rarely act through other states I Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanctions (2011) 47). See also DARIO Art 21, which provides that ‘self-defence’ is a circumstance precluding the wrongfulness of an act of an international organization, whereas Art 51 of the UN Charter limits self-defence to armed attacks against states. The general rule on international organization responsibility for member states is in DARIO Art 62. 12

  Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) ICJ Rep 1996, p 66, at para 25: ‘International organizations are governed by the “principle of speciality”, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them.’ 13

  DARIO Art 64: ‘These draft articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of an international organization, or of a State in connection with the conduct of an international organization, are governed by special rules of international law. Such special rules of international law may be contained in the rules of the organization applicable to the relations between an international organization and its members.’ 14

  DARIO Art 32: 1.  The responsible international organization may not rely on its rules as justification for failure to comply with its obligations under this Part. 2.  Paragraph 1 is without prejudice to the applicability of the rules of an international organization to the relations between the organization and its member States and organizations.

15

  DARIO Art 2(b) defines ‘rules of the organization’ as ‘in particular, the constituent instruments, decisions, resolutions and other acts of the international organization adopted in accordance with those instruments, and established practice of the organization’. For the UN, the ‘decisions’ and ‘resolutions’ may be international law in character, such as treaties adopted by the General Assembly, or internal law, in the form of resolutions adopting Financial Regulations and Rules. Moreover, in a number of areas the activities of the UN, such as peacekeeping and the election of office holders, have developed ‘almost entirely through practice’. ILC, ‘Responsibility of International Organizations: Comments and From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Observations Received from International Organizations’, UN Doc A/CN.4/637/Add.1 (2011). 16

  See, eg, the norm on the effective control of peacekeeping troops.

17

  Sources of primary legal obligations include customary international law and treaties. See ch 25, ‘Promotion of International Law’. Art 24(2) of the UN Charter refers to the Security Council’s discharging its duties ‘in accordance with the Purposes and Principles of the United Nations’. See also s 29 of the Convention on the Privileges and Immunities of the United Nations, and relevant provisions of the various status of forces agreements (SOFAs) and status of mission agreements (SOMAs) that also create binding legal obligations regarding the UN’s responsibility not only under international humanitarian law, but also with regard to private and other claims. 18

  Available at https://treaties.un.org/Pages/AdvanceSearch.aspx?tab=UNTS&clang=_en. These range from the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (VCLT-IO) to the Exchange of notes between the Government of the United Kingdom of Great Britain and Northern Ireland and the United Nations Interim Administration Mission in Kosovo (UNMIK) concerning the transfer of Mr Luan Goçi to the jurisdiction of the United Kingdom of Great Britain and Northern Ireland. Not all treaties concluded by international organizations are registered in the UNTS database. The obligation to register treaties with the Secretariat in Article 102(1) of the Charter does not apply to international organization, but only to ‘any Member of the United Nations’. See also GA Res 97(I) (1946) and GA Res 52/153 (1997). 19

  See ch 25, Promotion of International Law’.

20

  Secretary-General’s Bulletin, Observance by United Nations forces of international humanitarian law, UN Doc ST/SGB/1999/13 (1999); Shraga, ‘UN Peacekeeping Operations: Applicability of International Humanitarian Law and Responsibility for Operations-Related Damage’ (2000) 94 AJIL 406. 21

  An ‘internationally wrongful act’ may also be an omission. In United States Diplomatic and Consular Staff in Tehran ICJ Rep 1980, p 3, at paras 63 and 67, the responsibility of Iran was engaged by the ‘inaction’ of its authorities, which ‘failed to take appropriate steps’ in circumstances where such steps were evidently called for. 22

  UN Doc A/51/389 (1996), p 4, para 6, report by Secretary-General Boutros-Ghali on Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations: ‘the principle of State responsibility—widely accepted to be applicable to international organizations—that damage caused in breach of an international obligation and which is attributable to the State (or to the Organization) entails the international responsibility of the State (or of the Organization)’, cited in ILC, Draft Articles on the Responsibility of International Organizations with Commentaries (2011), YBILC, 2011, II, pt 2, p 13. 23

  In Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) ICJ Rep 1999, p 62, at para 66, the Court pointed out ‘that the question of immunity from legal process is distinct from the issue of compensation for any damages incurred as a result of acts performed by the United Nations or by its agents acting in their official capacity…. The United Nations may be required to bear responsibility for the damage arising from such acts’ (cited in ILC, n 22, 13). 24

  DARIO Art 6.

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25

  Provisions of the UN Charter refer to ‘organs’, but the ICJ has also emphasized the fact that a person had been conferred functions by a UN organ. The ICJ stated that it understood ‘the word “agent” in the most liberal sense, that is to say, any person who, whether a paid official or not, and whether permanently employed or not, has been charged by an organ of the organization with carrying out, or helping to carry out, one of its functions—in short, any person through whom it acts’ (Reparation for Injuries Suffered in the Service of the United Nations ICJ Rep 1949, p 174 at 177). In Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (Advisory Opinion) ICJ Rep 1989, p 177, at para 48, the ICJ observed that ‘[i]n practice, according to the information supplied by the Secretary-General, the United Nations has had occasion to entrust missions—increasingly varied in nature—to persons not having the status of United Nations officials’. In Difference Relating to Immunity, n 23, p 62, at para 66, the Court noted that in case of ‘damages incurred as a result of acts performed by the United Nations or by its agents acting in their official capacity…[t]he United Nations may be required to bear responsibility for the damage arising from such acts’ (emphasis added). Cases cited in ILC, n 22, 17–18. 26

  These include individual and corporate contractors providing commercial goods and services. The UN uses ‘executing agencies’ and ‘implementing partners’ to carry out aspects of its programme or perform certain activities, such as non-governmental organizations (NGOs) used by the Office for the Coordination of Humanitarian Affairs in the field (UN Doc A/CN.4/637/Add.1 (2011), pp 8–9). 27

  Cf DARIO Art 7. See section 9.1, ‘ “Effective control” of peacekeeping operations’ and ch 27, ‘Peacekeeping and Other Peacekeeping Operations’. 28

  [1971] UN Juridical YB 187.

29

  An agreement between the World Health Organization (WHO) and the Pan American Health Organization (PAHO) provided that the Pan American Sanitary Conference serves ‘respectively as the Regional Committee and the Regional Office of the World Health Organization for the Western Hemisphere, within the provisions of the Constitution of the World Health Organization’ (Art 2 of the Agreement of 24 May 1949). According to the Legal Counsel of WHO, ‘acts of PAHO and of its staff could engage the responsibility of WHO’ (Letter of 19 December 2003 from the Legal Counsel of WHO to the United Nations Legal Counsel, UN Doc A/CN.4/545, s II.H). 30

  See ch 9, ‘Powers’, section 7, ‘Consequences of ultra vires acts’.

31

  The OLA advised in 1974 that tortious acts committed by members of a UN Emergency Force (UNEF) during their off-duty periods could be recognized as engaging the responsibility of the UN if the acts were closely related to the functions of the UNEF member, such as the use of a government-issued weapon (UN Doc A/CN.4/637/Add.1 (2011), p 15). See also DARIO Art 8. 32

  Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) ICJ Rep 1962, p 151 at p 169; Difference Relating to Immunity, n 23, p 62, at para 66. 33

  Certain Expenses of the United Nations, n 32, at 168.

34

  In its Advisory Opinion on Difference Relating to Immunity, n 23, the Court stated that ‘it need hardly be said that all agents of the United Nations, in whatever official capacity they act, must take care not to exceed the scope of their functions, and should so comport themselves as to avoid claims against the United Nations’ (para 66). See also section 9, ‘Responsibility of the UN in peacekeeping operations’.

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35

  Institut de Droit International, n 2, Art 6. This position attracts wide consensus in legal scholarship (d’Aspremont, ‘Abuse of the Legal Personality of International Organizations and the Responsibility of Member States’ (2007) 4 International Organizations Law Review 91, at 95). See also Webb, ‘International Organizations: Uneasy Analogies’ in Research Handbook on the Law of Treaties (eds Tams and Tzanakopoulos, 2013), ch 19. 36

  Institut de Droit International, n 2, Art 5(b).

37

  DARIO Art 62. In an arbitration dispute concerning Westland Helicopters, the arbitral tribunal found that reliance may be engendered by the conduct of a member state: ‘the trust of third parties contracting with the organization as to its ability to cope with its commitments because of the constant support of the member States’ (para 56 of the award of 21 July 1991 in Higgins, ‘The legal consequences for Member States of non-fulfilment by international organizations of their obligations towards third parties: provisional report’ (1995) 66-I Ann de l’Inst 373, at 393; ILC, n 22, 98). Third-party responsibility may also arise if ‘the members lead a third party reasonably to assume that they would stand in if the responsible organization did not have the necessary funds for making reparation’ (ILC, n 22, 98). 38

  DARIO Art 61. If the act of the international organization is wrongful and caused by the member state, there could be an overlap between the cases covered in this Article and those in Arts 58 (aid or assistance by a state), 59 (direction and control exercised by a state), and 60 (coercion by a state). The ILC points out that this is not problematic, ‘because it would only imply the existence of a plurality of bases for holding the State responsible’ (ILC, n 22, 95). Those Articles are largely duplicative of the ILC Articles on State Responsibility. 39

  DARIO Art 61 establishes a test that requires the member state to possess the intent to avoid compliance with an obligation and a relationship of causation. The ILC Commentary clarifies that the existence of an intention to avoid compliance is implied in the use of the term ‘circumvention’ (ILC, n 22 , 93). 40

  Paasivirta, ‘Responsibility of a Member State of an International Organization: Where Will it End? Comments on Article 60 of the ILC Draft on the Responsibility of International Organizations’ (2010) 7 International Organizations Law Review 49, at 61; cf d’Aspremont, n 35, at 93 (arguing that when a member state has ‘effective and overwhelming’ control over the decision-making process of an international organization, it must be held jointly or concurrently responsible for international law violations that involve decisions of that organization). 41

  In Waite and Kennedy v Germany ECHR 1999-I, 410 (on the question of the immunity of the European Space Agency in relation to employment claims), the Court held that the ‘essence’ of the applicant’s ‘right to a court’ under the Convention had not been impaired (ibid, para 57). In Bosphorus Hava Yollary Turizm ve Ticaret Anonim Sirketi v Ireland ECHR 2005-VI, [2005] ECHR 440, at para 154 (the implementation of a European Community (EC) Regulation enforcing UN sanctions), the Court found that Ireland was not responsible because the relevant rights were protected within the EC, ‘in a manner which can be considered at least equivalent to that for which the Convention provides’ (ibid, 158, para 155). In Gasparini v Italy and Belgium App no 10750/03 (ECHR, 12 May 2009) (two employees of the North Atlantic Treaty Organization (NATO) alleged the inadequacy of the settlement procedure concerning employment disputes with NATO), the Court found that the obligation to ensure ‘equivalent protection’ to that under the ECHR mechanism was not breached because the NATO procedure was not tainted with ‘manifest insufficiency’. 42

  Paasivirta, n 40, 56.

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43

  DARIO Art 14.

44

  Shraga, ‘ILC Articles on Responsibility of International Organizations: The Interplay between the Practice and the Rule (a View from the United Nations)’ in Responsibility of International Organizations (ed Ragazzi, 2013), 206. 45

  Forces armées de la République démocratique du Congo (FARDC).

46

  UN Doc A/CN.4/637/Add.1 (2011), p 19.

47

  The ‘conditionality policy’ has since been referred to as the human rights due diligence policy, which, in addition to the need to identify risks of violations of international humanitarian law and international human rights law, also requires that there be a failure to take mitigating or corrective measures within a reasonable period prior to suspending or terminating support to the unit or units concerned. 48

  S/2009/623, cited in UN Doc A/CN.4/637/Add.1 (2011), p 18.

49

  The Legal Counsel wrote: ‘If MONUC has reason to believe that FARDC units involved in an operation are violating one or the other of those bodies of law and if, despite MONUC’s intercession with the FARDC and with the Government of the DRC [Democratic Republic of the Congo], MONUC has reason to believe that such violations are still being committed, then MONUC may not lawfully continue to support that operation, but must cease its participation in it completely.…MONUC may not lawfully provide logistic or “service” support to any FARDC operation if it has reason to believe that the FARDC units involved are violating any of those bodies of law.…This follows directly from the Organization’s obligations under customary international law and from the Charter to uphold, promote and encourage respect for human rights, international humanitarian law and refugee law’ (New York Times (9 December 2009), cited in ILC, n 22, 37). 50

  DARIO Art 17(1). The act would not actually have to occur for the responsibility to be engaged. 51

  In Joined Cases C-402/05 P and C-415/05P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR I-6351 (European Court of Justice (ECJ), 3 September 2008) (Kadi case), the ECJ held that fundamental rights as protected by (then) EC law limited the implementation of UN Security Council decisions, such as imposing restrictive measures on certain persons and entities alleged to be associated with specific terrorist groups (eg, asset freezing). The ECJ found that the lack of any judicial review procedure violated the fundamental rights protected by EC law. The EC implementing regulation had to be amended to conform with fundamental rights. The Court emphasized that the review of lawfulness ensured by EC courts applied to the Community act intended to give effect to the international agreement in issue, and not to the international agreement itself. It noted that the UN Charter left it to the member states to choose among various options for transposing Security Council resolutions into their domestic legal order. In Kadi II, the General Court struck down the re-listing of Mr Kadi by the EU following the ECJ’s annulment of the Regulation that had listed him for the first time (Case T-85/09 Kadi v Commission [2010] ECR II-5177). On 18 July 2013, the ECJ dismissed the appeal by the European Commission, EU Council, and the UK from the General Court’s Judgment, finding, inter alia, that the UN’s re-examination procedure for the listing and de-listing of persons and entities was still inadequate (Joined Cases C‑584/10 P, C‑593/10 P, and C‑595/10 P European Commission and others v Yassin Abdullah Kadi (ECJ, Grand Chamber, 18 July 2013)). It set out a standard of review that encompassed not only procedure, but also a substantive review of the reasons given for the listing (paras 118–19). An Ombudsperson system had been introduced by the UN in SC Res 1904 (2009), 1989 (2011), and 2083 (2012). The Court held that this did not constitute ‘judicial protection’, which requires the ability of the person concerned ‘to obtain a declaration from a court, by means of a

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judgment ordering annulment whereby the contested measure is erased from the legal order’ (Kadi II, para 134). The Kadi case has been followed by other courts. The UK Supreme Court held that the national implementation of certain UN sanctions was ultra vires and was annulled in so far as it did not provide for an effective remedy: Her Majesty’s Treasury v Ahmed [2010] UKSC 2. In Nada v Switzerland App No 10593/08 (ECHR, 12 October 2012), the ECtHR held that the mere fact that a measure was intended to give effect to a Security Council resolution did not exclude it from judicial review in the light of fundamental freedoms. Feinäugle, ‘Kadi Case’ (2014) MPEPIL. 52

  DARIO Art 17(2). Situations arising under Art 17(2) will require careful contextual analysis of the scope of the authorization and the causal relationship between it and the breach. While the UN would be responsible if it requested, albeit implicitly, the commission of an act that would represent a circumvention of one of its obligations, that organization would clearly not be responsible for any other breach that the member state to which the authorization is addressed might commit. 53

  The UN has noted that the cumulative conditions in Art 17, especially the requirement that the decision imputing responsibility to the international organization must be in circumvention of its international obligation, ‘makes its application in the realities of international organizations…highly unlikely’ (Responsibility of International Organizations: Comments and Observations Received from International Organizations (UN Doc A/CN. 4/637/Add.1 (2011)), p 22). 54

  The authorization of the peacekeeping mission itself is not an internationally unlawful act, but the mission may commit internationally unlawful acts. 55

  ILC, n 22, 42.

56

  Behrami & Behrami v France App no 71412/01; Saramati v France, Germany and Norway App no 78166/01 (ECHR, 2 May 2007); Kasumaj v Greece App no 6974/05 (ECHR, 5 July 2007); Gajic v Germany App no 31446/02 (ECHR, 28 August 2008); Beric v Bosnia and Herzegovina App no 36357/04 (ECHR, 16 October 2007). See also section 9, ‘Responsibility of the UN in peacekeeping operations’. 57

  UN Doc A/CN.4/637/Add.1 (2011) 21–2. One example was an airline that claimed compensation for additional costs due to the re-routing of its aircraft to avoid flying over Libya as a result of SC Res 748 (1992) ([1993] UN Juridical YB 352). In imposing sanctions, the Security Council often makes allowances for breaches of contractual arrangements previously concluded between states (SC Res 687 (1991), para 25). See the 2006 intervention by the UN Legal Counsel in the Security Council on behalf of the then Secretary-General, referring to the ‘minimum standards required to ensure that the procedures are fair and transparent’, which mentions a person’s ‘right to review by an effective review mechanism. The effectiveness of that mechanism will depend on its impartiality, degree of independence and ability to provide an effective remedy, including the lifting of the measure and/or, under specific conditions to be determined, compensation’ (UN Doc S/PV.5474 (2006), p 5). 58

  Art 6(a), (1996) 66-II Ann de l’Inst 445. Art 5 reads as follows: ‘(a) The question of the liability of the members of an international organization for its obligations is determined by reference to the Rules of the organization; (b) In particular circumstances, members of an international organization may be liable for its obligations in accordance with a relevant general principle of law, such as acquiescence or the abuse of rights; (c) In addition, a

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member State may incur liability to a third party (i) through undertakings by the State, or (ii) if the international organization has acted as the agent of the State, in law or in fact.’ 59

  Judgment of 27 April 1988, Maclaine Watson & Co Ltd v Department of Trade and Industry; JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry and Others (1990) 81 ILR 670. 60

  Judgment of 26 October 1989, Australia & New Zealand Banking Group Ltd and Others v Commonwealth of Australia and 23 Others; Amalgamated Metal Trading Ltd and Others v Department of Trade and Industry and Others; Maclaine Watson & Co Ltd v Department of Trade and Industry; Maclaine Watson & Co Ltd v International Tin Council (1990) 29 ILM 675. 61

  Art 34(1) of the ICJ Statute reads: ‘Only states may be parties in cases before the Court.’

62

  East Timor (Portugal v Australia), ICJ Rep 1995, p 90; d’Aspremont, n 35, 117.

63

  The World Bank, International Bank for Reconstruction and Development, and International Development Agency, eg, have inspection panels that investigate claims by groups affected on the territory of the borrower by the respective bank’s loan. They give recommendations to management and are focused on the compatibility of actions and omissions with internal directives and policies rather than international law. The UN Joint Inspection Unit is mandated to use its inspections to increase efficiency, not to investigate claims of injury to third parties. 64

  See ch 15, ‘The United Nations Secretariat and Secretary-General’, and references to OIOS therein. 65

  d’Aspremont, n 35, 117. Even if there is no immunity from jurisdiction, the entitlement to immunity for enforcement is generally broader. Note, however, that Section 29 of the Convention on the Privileges and Immunities of the United Nations provides that ‘The United Nations shall make provisions for appropriate modes of settlement of: (a) Disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party; (b) Disputes involving any official of the United Nations who by reason of his official position enjoys immunity, if immunity has not been waived by the SecretaryGeneral.’ 66

  Stichting Mothers of Srebrenica et al v State of The Netherlands and the United Nations, Supreme Court of The Netherlands, Case no 10/04437, 13 April 2012. The Hague Court of Appeal in the same case had pointed out that the claimants could sue The Netherlands or the individual perpetrators of the genocide (Stichting Mothers of Srebrenica, Appeal Court of The Hague, 30 March 2010). 67

  Georges and Others v United Nations and Others, US District Court, Southern District of New York, 9 January 2015; upheld on appeal, Georges v United Nations, No 15–455 (2d Cir 2016). Approximately 9,500 Haitians have died from cholera since the outbreak and over 800,000 have been ill. After denying responsibility for years, the UN Secretary-General in August 2016 acknowledged ‘moral responsibility’ and stated he was putting together a compensation package. The statement followed a report by Philip Alston, Special Rapporteur on Extreme Poverty and Human Rights, that stated: ‘The United Nations was clearly responsible and it must now act accordingly…. [W]hat is at stake is the Organization’s overall credibility in many different areas. Its existing position on cholera in Haiti is at odds with the positions that it espouses so strongly in other key policy areas. It has a huge amount to gain by rethinking its position and a great deal to lose by stubbornly maintaining its current approach’ (UN Doc A/71/367 (2016), para 73). On 1 December 2016, Secretary-General Ban offered an apology to Haitians on behalf of the UN and acknowledged the UN’s moral, if not legal, responsibility. He said he was ‘profoundly sorry’ and urged member states to raise up to US$400 million to treat and cure Haiti’s cholera

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victims. Boon, ‘The United Nations as Good Samaritan: Immunity and Responsibility’ (2016) 16 Chicago JIL 341. 68

  [1965] UN Juridical YB 41; cf the UN’s reluctance to accept blame or to make an ex gratia payment for the cholera outbreak introduced into Haiti by UN peacekeepers. See section 7.3 on ex gratia payments. 69

  DARIO Art 20.

70

  Para 6 of the Declaration annexed to GA Res 46/59 (1991).

71

  Report of the Secretary-General on enhancing the effectiveness of the principle of periodic and genuine elections (UN Doc A/49/675 (1994), para 16). Cited in ILC, n 22, 42–3. 72

  See, eg, UNEF in 1967 and Eritrea in 2008, which was accompanied by ‘obstructions’ by the state towards the UN Mission in Ethiopia and Eritrea (SC Res 1827 (2008)). 73

  UN Doc A/CN.4/637/Add.1 (2011), p 24. A possible precedent may be the consent granted by the Haitian Government to the Pakistani Government, allowing the latter to court martial its formed police unit (Pakistani FPU) on Haitian soil rather than its be subjected to criminal jurisdiction under Haitian law in respect of alleged sexual exploitation and abuse of Haitian minors by the Pakistani FPU. 74

  Comment by the WHO on ILC DARIO (UN Doc A/CN.4/609 (2009), s II).

75

  UN Doc A/8160 (1970).

76

  UN Doc A/47/485 (1992), annex.

77

  The view of the OLA was that ‘measures designed to achieve a result other than by means provided for in the Charter are not consistent with the legal order established by the Charter’ (Shraga, n 11 (emphasis in original). See also [1968] UN Juridical YB 195). 78

  UN Doc A/CN.4/637/Add.1 (2011), pp 26–7, citing Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) ICJ Rep 1980, p 73 at para 43. The UN Secretariat’s view is that the fundamental differences between international organizations and states and the lack of practice indicate that countermeasures should not have been included in DARIO. 79

  DARIO Art 21.

80

  United Nations Protection Force (UNPROFOR), United Nations Operation in Somalia (UNOSOM), MONUC, United Nations Mission in Sudan (UNMIS), and United Nations African Mission in Darfur (UNAMID) (UN Doc A/CN.4/637/Add.1, p 25 and ILC, n 22, 46). 81

  UN Doc A/CN.4/637/Add.1 (2011), p 25. This has usually been through a third-party claims process implemented by individual peacekeeping missions. 82

  ARSIWA Art 25.

83

  GA Res 52/247 (1998) and Report of the Secretary-General on third-party liability (UN Doc A/51/389, para 14). The UN regularly offers compensation for property damage caused by peacekeeping operations: see section 7.2, ‘Compensation’. 84

  Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (Advisory Opinion) ICJ Rep 1954, p 47. In Certain Expenses of the United Nations (n 32), the ICJ held that the payments of member states must meet all the costs of the UN, including expenditures due as a consequence of responsibility for a breach of international law. See also DARIO Art 40. The ILC commentary to DARIO (n 22) states that Art 40 is of an ‘expository character’ and does not intend to create any further instances in which member

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states would be held internationally responsible for the act of an organization of which they are members. 85

  535 UNTS 199; 564 UNTS 193; 565 UNTS 3; 585 UNTS 147; and 588 UNTS 197. Quoted in ILC, n 22, at 61. Further settlements in connection with the same operation were made with Zambia, the US, the UK, and France, as well as the International Committee of the Red Cross (ICRC) (Schmalenbach, Die Haftung Internationaler Organisationen (2004), 314–21; Ginther, Die völkerrechtliche Verantwortlichkeit Internationaler Organisationen gegenüber Drittstaaten (1969), 166–7 (text of ICRC agreement)). 86

  [1965] UN Juridical YB 41; UN Doc S/6597 (1965). The view that the UN placed its responsibility at the international level was supported by Salmon, ‘Les accords Spaak-U Thant du 20 février 1965’ (1965) 11 AFDI 468, at 483 and 487. Cited in ILC, n 22, 61. 87

  GA Res 52/247 (1998).

88

  [2010] UN Juridical YB 521 (third-party claim against the United Nations Mission in Liberia (UNMIL) for non-consensual use of private premises). The UN’s responsibility to compensate property owners for non-consensual use of private property is set out in UN Docs A/51/489 (1996) and A/51/903 (1997), adopted by GA Res 51/13 (1996) and 52/247 (1998). 89

  As of 2016, it was at US$50,000 subject to approval of the GA (UN Doc A/71/40823 (2016), para 62). 90

  In a case involving the shooting of a civilian vehicle in the Congo, compensation by the UN was reduced due to the contributory negligence of the driver of the vehicle (Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens (1998), 606). 91

  [2010] UN Juridical YB 521.

92

  The principle that acts performed by the UN or its agents acting in their official capacity entail UN responsibility for damage that may raise from such acts, was affirmed by the ICJ in Difference Relating to Immunity, n 23, 88–9, para 66. Shraga, n 44, 202. 93

  GA Res 41/210 (1986) and Rules Governing Compensation to Members of Commissions, Committees or Similar Bodies in the Event of Death, Injury or Illness Attributable to Service with the United Nations. 94

  Financial Regulation 5.11 and ST/SGB/2003/7.

95

  Financial Rule 105.12.

96

  UN Doc A/CN.4/637/Add.1 (2011), p 16.

97

  [2010] UN Juridical YB 521–2. See also GA Res 52/247 (1998). The OLA has also recommended ensuring that a Board of Inquiry is convened in such cases. One example is the ex gratia payment recommended where UN soldiers from the United Nations Stabilization Mission in Haiti (MINUSTAH) Brazilian Battalion engaged in a military operation involving local gang members, and a civilian Haitian who was crossing the street was shot in the leg during an exchange of gunfire ([2009] UN Juridical YB 428–30). 98

  Contracts concluded by the UN, its subsidiary organs, and other independent organs must contain standard arbitration clauses, set out in the UN General Conditions for Contracts, available at https://www.un.org/Depts/ptd/about-us/conditions-contract. But the initial method for dispute settlement is a negotiation between the UN and the contracting party, which is set out in the standard arbitration clauses. See Schmalenbach, ‘Dispute

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Settlement’ in The Convention on the Privileges and Immunities of the United Nations and Its Specialized Agencies: A Commentary (eds Reinisch and Bachmayer, 2016), 549–50. 99

  DARIO Art 37.

100

  With regard to the fall of Srebrenica, the Secretary-General said: ‘The United Nations experience in Bosnia was one of the most difficult and painful in our history. It is with the deepest regret and remorse that we have reviewed our own actions and decisions in the face of the assault on Srebrenica’ (Report of the Secretary-General pursuant to General Assembly resolution 53/35: the fall of Srebrenica (UN Doc A/54/549 (1999)), para 503). After receiving the report of the independent inquiry into the actions of the UN during the 1994 genocide in Rwanda, the Secretary-General stated: ‘All of us must bitterly regret that we did not do more to prevent it. There was a United Nations force in the country at the time, but it was neither mandated nor equipped for the kind of forceful action which would have been needed to prevent or halt the genocide. On behalf of the United Nations, I acknowledge this failure and express my deep remorse.’ 101

  UN Doc A/CN.4/637/Add.1 (2011), p 32.

102

  DARIO Art 33(2) provides that the right to invoke the international responsibility of an international organization is ‘without prejudice to any right, arising from the international responsibility of an international organization, which may accrue directly to any person or entity other than a State or an international organization’. See also DARIO Art 50; and Gaja, ‘Articles on the Responsibility of International Organizations: Introductory Note’ [2014] UN Audiovisual Library of International Law 2, where Gaja states: ‘The purpose of these “without prejudice” provisions is to convey that the articles are not intended to exclude any such entitlement.’ 103

  Reparation for Injuries Suffered in the Service of the United Nations ICJ Rep 1949, p 174 at 186; cf DARIO Art 45. 104

  As regards the EU, whether a claim is addressed to the EU member states or the responsibility of the EU is invoked, exhaustion of remedies existing within the EU would be required (ILC, n 22, 73. See also UN Doc A/CN.4/597 (2008), para 17). 105

  DARIO Art 47. In Reparation for Injuries Suffered in the Service of the United Nations, the ICJ found that both the UN and the national state of the victim could claim ‘in respect of the damage caused…to the victim or to persons entitled through him’, and noted that there was ‘no rule of law which assigns priority to the one or to the other, or which compels either the State or the Organization to refrain from bringing an international claim. The Court sees no reason why the parties concerned should not find solutions inspired by goodwill and common sense’ (ICJ Rep 1949, p 174 at 184–6). 106

  Financing of the United Nations Protection Force (Report of the Secretary-General, 20 September 1996, UN Doc A/51/389, paras 17–18). 107

  Shraga, n 11. Shraga, Principal Legal Officer in the OLA in 2011, points out that the perception of exclusive UN operational command and control is ‘often deceptive’, but the UN is keen to maintain the integrity of UN peacekeeping operations vis-à-vis third parties and is likely therefore to continue the practice of recognizing its international responsibility for acts of its peacekeeping operations. It will revert, where appropriate, to the TCC to recover compensation payments made. For explicitly joint operations, the UN has been prepared to share responsibility. It was stated regarding the Second UN Operation in Somalia (UNOSOM II), eg: ‘The Force Commander of UNOSOM II was not in effective control of several national contingents which, in varying degrees, persisted in seeking orders from their home authorities before executing orders of the Forces Command. Many major operations undertaken under the United Nations flag and in the context of UNOSOM’s mandate were totally outside the command and control of the United Nations,

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even though the repercussions impacted crucially on the mission of UNOSOM and the safety of its personnel’ (UN Doc S/1994/653, paras 243–4, cited in ILC, n 22, 22). 108

  UN Doc A/CN.4/637/Add.1 (2011), p 10, 13. See also para 15 of the 1990 Model SOFA, providing that a UN peacekeeping operation ‘as a subsidiary organ of the United Nations, enjoys the status, privileges and immunities of the United Nations’ (UN Doc A/45/594, Annex). 109

  UN Doc A/CN.4/637/Add.1 (2011), p 13. The UN may nonetheless negotiate recovery of compensation payments, or make arrangement for burden-sharing of responsibilities with TCCs. Art 9 of the model ‘Memorandum of Understanding’ (MOU) between the UN and TCCs provides: ‘The United Nations will be responsible for dealing with any claims by third parties where the loss of or damage to their property, or death or personal injury, was caused by the personnel or equipment provided by the Government in the performance of services or any other activity or operation under this MOU. However, if any loss, damage, death or injury arose from gross negligence or wilful misconduct of the personnel provided by the Government, the Government will be liable for such claims’ (UN Doc A/C.5/60/26 (2006)), cited in Shraga, n 44, 202. 110

  UN Doc A/CN.4/637/Add.1 (2011), pp 13–14. The DARIO imply, but do not state, that conduct of military forces of States or international organizations is not attributable to the UN ‘when the Security Council authorizes States or international organizations to take necessary measures outside a chain of command linking those forces to the [UN]’ (at 16). 111

  The OLA has stated, eg, that the responsibility for enforcing the provisions of the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora rests on TCCs that are parties to the Convention that retain jurisdiction over the criminal acts of their military personnel ([1994] UN Juridical YB 450). 112

  In the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) ICJ Rep 1986, p 14, the ICJ had held that the activities of non-state actors would be attributable if it could be shown that ‘effective control’ was exercised by a state, or that the state’s instructions were given in respect of each operation in which the alleged violations occurred, and not generally in respect of the overall actions taken by the persons or groups of persons having committed the violations. 113

  Prosecutor v Dusko Tadić (Jurisdiction of the Tribunal), Decision of 2 October 1995 in Case no IT-94-1-AR72; (1996) 35 ILM 32 (Tadić Appeals Judgment), para 120. The Nicaragua–Tadić divide has become the classic example of ‘fragmentation’ in international law. The ILC Study Group on Fragmentation in International Law used the contrast between Nicaragua and Tadić as an example of a ‘normative conflict between an earlier and a later interpretation of a rule of general international law’ (ILC, ‘Fragmentation of international law: difficulties arising from the diversification and expansion of international law: Report of the Study Group of the International Law Commission—finalized by Martti Koskenniemi’ (13 April 2006) UN Doc A/CN.4/L.682, p 31). 114

  In so far as the ‘overall control’ test was employed to determine whether or not an armed conflict is international—the sole question the ICTY had been called upon to decide— the ICJ admitted that the test might well be applicable and suitable in that context; it did not think it appropriate to take a position on that point in the Bosnia Genocide Judgment, as it was not a question before it (Bosnia Genocide (Judgment), ICJ Rep 2007, para 403). The ICJ observed that the tests for (i) the degree and nature of a state’s involvement in an armed conflict on another state’s territory required for the conflict to be ‘international’, and (ii) the degree and nature of involvement required to give rise to that state’s responsibility

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for a specific act committed in the course of the conflict, could differ without logical inconsistency (ibid, para 405). 115

  In 2005, the ICJ had affirmed its ‘effective control’ test as articulated in Nicaragua in the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) ICJ Rep 2005, p 168 (Congo v Uganda case). In that case, the Court explained that although Uganda acknowledged giving training and military support to the ‘Mouvement de libération du Congo’, there was no probative and credible evidence that Uganda controlled, or could control, the manner in which such assistance was used. Accordingly, citing the pertinent paragraphs of Nicaragua as well as Arts 4, 5 and 8 of the ILC Articles on State Responsibility, the Court concluded that the requisite tests for sufficiency of control of paramilitaries had not been met with regard to the relationship between Uganda and the ‘Mouvement de libération du Congo’ (Congo v Uganda case, para 160). The question was raised more starkly in the Bosnia Genocide Judgment of 2007, because one of the parties (Bosnia) had expressly argued in favour of applying the ICTY Tadić ‘overall control’ test. Moreover, this time the ICJ and ICTY were both pronouncing on the same conflict—the war in the Balkans in the 1990s. 116

  Behrami and Behrami v France; Saramati v France, Germany and Norway Decision (Grand Chamber) of 2 May 2007 on the admissibility of App nos 71412/01 and 78166/01, para 133. While noting ‘the effectiveness or unity of NATO command in operational matters’ concerning KFOR (ibid, para 139), the ECtHR noted that the presence of KFOR in Kosovo was based on a Security Council resolution and concluded that ‘KFOR was exercising lawfully delegated Chapter VII powers of the UNSC so that the impugned action was, in principle, “attributable” to the UN’ (ibid, para 141). The judgment has attracted criticism from various commentators: Bell, ‘Reassessing Multiple Attribution: the International Law Commission and the Behrami and Saramati Decision’ (2010) 42 NYU JILP 501; BodeauLivinec, Buzzini, and Villalpando, ‘Behrami and Behrami v France and Saramati v France, Germany and Norway, European Court of Human Rights (Grand Chamber), May 2, 2007’ note (2008) 102 AJIL 323, at 328–9; Klein, ‘Responsabilité pour les faits commis dans le cadre d’opérations de paix et étendue du pouvoir de contrôle de la Cour européenne des droits de l’homme: quelques considérations critiques sur l’arrêt Behrami et Saramati’ (2007) 53 AFDI 43, at 55; Lagrange, ‘Responsabilité des Etats pour actes accomplis en application du chapitre VII de la Charte des Nations Unies’ (2008) 112 RG 85, at 94–5. Following the ECtHR judgment, the Secretary-General stated in his 2008 report on UNMIK that ‘[i]t is understood that the international responsibility of the United Nations will be limited in the extent of its effective operational control’ (UN Doc S/354 (2008), para 16. Cited in ILC, n 22, 23–4). 117

  See also, regarding the attribution of KFOR conduct, Kasumaj v Greece, Decision of 5 July 2007 on the admissibility of App no 6974/05 and Gajić v Germany, Decision of 28 August 2007 on the admissibility of App no 31446/02. In Berić and Others v Bosnia and Herzegovina, Decision of 16 October 2007 on the admissibility of App nos 36357/04, 36360/04, 38346/04, 41705/04, 45190/04, 45578/04, 45579/04, 45580/04, 91/05, 97/05, 100/05, 1121/05, 1123/05, 1125/05, 1129/05, 1132/05, 1133/05, 1169/05, 1172/05, 1175/05, 1177/05, 1180/05, 1185/05, 20793/05 and 25496/05, the Court followed Behrami to conclude that that the conduct of the High Representative in Bosnia and Herzegovina had to be attributed to the UN. 118

  Al Jedda v United Kingdom [2009] ECHR 408. Shraga, n 44, 204.

119

  In one case the conduct was the decision to withdraw the Belgian contingent from a camp in Kigali, abandoning a de facto refugee camp (Makeshimana-Ngulinzira and Others v Belgian State and others, para 38 (unreported, cited in DARIO, at 90, fn 109)). In the Dutch case, it was the decision to expel three Bosnian Muslim men from the compound who were

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later killed by Bosnian Serb forces in Srebrenica (Netherlands v Hasan Nuhanovic, Supreme Court, First Chamber, 6 September 2013, 12/03324). 120

  Netherlands v Hasan Nuhanovic, n 119, paras 3.5.2 and 3.9.4.

121

  ibid, para 3.11.3.

122

  The OLA has stated the following regarding off-duty acts of members of peacekeeping forces: ‘United Nations policy in regard to off-duty acts of the members of peacekeeping forces is that the Organization has no legal or financial liability for death, injury or damage resulting from such acts…. We consider the primary factor in determining an “off-duty” situation to be whether the member of a peacekeeping mission was acting in a non-official/ non-operational capacity when the incident occurred and not whether he/she was in military or civilian attire at the time of the incident or whether the incident occurred inside or outside the area of operation…. [W]ith regard to United Nations legal and financial liability a member of the Force on a state of alert may nonetheless assume an off duty status if he/she independently acts in an individual capacity, not attributable to the performance of official duties, during that designated “state-of-alert” period.…[W]e wish to note that the factual circumstances of each case vary and, hence, a determination of whether the status of a member of a peacekeeping mission is on duty or off duty may depend in part on the particular factors of the case, taking into consideration the opinion of the Force Commander or Chief of Staff’ ([1986] UN Juridical YB 300). For example, the act of a member of the UN Interim Force in Lebanon who moved explosives to the territory of Israel was considered to be an ‘off-duty act’ by the District Court of Haifa in a judgment of 10 May 1979: [1979] UN Juridical YB 205.

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Part 2 The United Nations: What it is, 14 The Financing of the United Nations Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): International organizations

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(p. 452) 14  The Financing of the United Nations 1.  Regular budget 14.02 2.  Financing of peacekeeping 14.27 3.  International Tribunals 14.30 4.  Voluntary contributions 14.32 5.  Self-support 14.42 6.  Apportionment of expenses of the organization 14.46 7.  Administrative and budgetary coordination between the UN and specialized agencies 14.66 Chabih, ‘Réflexions sur le pouvoir financier international: le cas de finance de l’ONU’ in Vers un monde nouveau: mélanges, textes et documents offerts au Professeur Edmond Jouve (eds Poli, Pastorelm, and Jouve, 2010); Cot, Pellet, and Forteau (eds), La Charte des Nations Unies: Commentaire article par article (3rd edn, 2005); Dormoy, ‘Les opérations de maintien de la paix de l’Organisation des Nations Unies. Aspects récents de la question de leur financement’ (1993) 39 AFDI 131; Hüfner, Die Vereinten Nationen und ihre Sonderorganisationen. Finanzierung des Systems der Vereinten Nationen: 1971–1995 (1997); Laurenti, ‘Financing’ in The Oxford Handbook on the United Nations (eds Weiss and Daws, 2007), 675; Pfäfflin and Stosberg, ‘Verwaltung und Haushalt’ (2010) 58 Vereinte Nationen 82; Schermers and Blokker, International Institutional Law: Unity within Diversity (5th edn, 2011), ch 7; Singer, Financing International Organizations: The United Nations Budget Process (1961); Stoessinger, Financing the United Nations System (1964); Thomma, ‘Verwaltung und Haushalt’ (2008) 56 Vereinte Nationen 132; Tomuschat, ‘Article 19’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), 637; Woeste and Thomma, ‘Article 17’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), 576. 14.01  The financing of the UN is divided into four parts: the regular budget, special accounts for peacekeeping, international tribunals, and voluntary contributions.

1.  Regular budget 1.1  Scope and extent 14.02  The UN’s regular budget includes the expenses of its principal organs—the General Assembly, the Security Council, the Economic and Social Council (ECOSOC), the (p. 453) International Court of Justice (ICJ), the Trusteeship Council, and the Secretariat—as well as subsidiary bodies. Article 17(1) of the UN Charter refers to a singular ‘budget of the Organization’, but in practice the expenses of the UN are funded by a range of trust funds and special accounts in addition to the regular budget.1 Despite the lengthy process for the formulation and approval of the regular budget, it represents a small proportion of the UN’s actual resources.2 14.03  The regular budget has grown from tens of millions in the early years of the organization to billions of dollars.3 The budget is composed of various parts, sections, and programmes.4 No funds may be transferred between different appropriation sections without the authorization of the General Assembly.5

1.2  Authorization of programmes

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14.04  In 1973, the UN switched from an annual to a biennial programme budget.6 The budget preparation cycle starts about 18 months ahead of the biennium to which it (p. 454) relates. The principal policy directive of the UN is the biennial strategic framework.7 It consists of a plan outline, reflecting the longer-term objectives of the organization and a biennial programme plan.8 The strategic framework is reviewed by the Committee for Programme and Coordination (CPC) and then by the Fifth Committee of the General Assembly.9

1.2.1  Committee for Programme and Coordination (CPC) 14.05  The CPC is the main subsidiary organ of ECOSOC and the General Assembly for planning, programming, and coordination. It was established in 1962 by ECOSOC resolution.10 It is composed of 34 members, elected for three-year terms by the General Assembly upon the nomination of ECOSOC and on the basis of equitable geographic distribution.11 The CPC reviews the strategic framework in off-budget years and the programme budget in budget years, giving special attention to programme changes arising out of decisions adopted by intergovernmental organs and conferences or suggested by the Secretary-General.12 The CPC is expected to (p. 455) establish ‘useful cooperation’ with the ACABQ and to cooperate with the Joint Inspection Unit (JIU), but this does not always occur in practice.13 14.06  The biennial strategic framework is followed by the budget outline prepared by the Secretary-General, which is reviewed by the ACABQ and the Fifth Committee.14 14.07  The CPC reviews any programmatic changes in the proposed programme budget arising from new or revised mandates since the adoption of the strategic framework.15

1.3  Formulation of estimates: the Secretariat 14.08  The Secretary-General is theoretically free to request amounts from member states that he/she deems necessary for the work of the organization,16 but this discretion is constrained by political realities.17 The formulation of estimates commences with an (p. 456) internal review within departments and offices. Heads of department and offices prepare programme budget proposals in accordance with the Regulations and Rules Governing Programme Planning.18 The next step is a joint review of individual proposals with the Department of Management.19 This is followed by review by the Secretary-General and designated committees, which rarely leads to substantive amendments.20 The estimates are presented as programme budget fascicles.21 These fascicles are collected by the Controller, who examines the requirements in relation to past budgetary decisions of the General Assembly and with respect to the overall (p. 457) financial situation.22 Revised and supplementary budget proposals may be submitted by the Secretary-General.23

1.4  Examination of estimates: the ACABQ 14.09  The ACABQ examines the estimates.24 For many years the Advisory Committee’s review has been perceived as the most important step in the budgetary process. Nevertheless, since the 1990s, there has been a perception that the ACABQ has extended its reach without necessarily deepening its expertise in these financial matters.25 The 16 members of the ACABQ are appointed by the General Assembly,26 and should include at least three financial experts of recognized standing.27 No two members shall be nationals of the same state, and they shall be selected on the basis of ‘broad geographical representation, personal qualifications and experience’ and (p. 458) shall serve for a period of three calendar years.28 The Chair is elected annually by the members of the ACABQ.29 Although in principle composed of experts, the Advisory Committee is prone to similar political dynamics as are found in the Fifth Committee and the General Assembly.30

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14.10  The ACABQ is responsible for ‘expert examination of the programme budget of the United Nations’.31 It conducts its reviews on the basis of documents, but it also holds hearings and asks questions of Secretariat officials, in particular when examining peacekeeping budgets. Both the ACABQ and the Fifth Committee conduct in-depth questioning of the Secretariat and detailed line item analysis.32 The relationship between the Fifth Committee and the ACABQ has changed over time. 14.11  The ACABQ is supposed to ‘assist’ the Fifth Committee.33 The Advisory Committee used to be the dominant body. Its proposals were rarely challenged by the Fifth Committee, and there was the feeling among the UN departments, offices, and bodies submitting their budget estimates that the hurdle they had to overcome was the ACABQ. In recent years, however, the Fifth Committee has reasserted itself by (p. 459) rejecting some ACABQ recommendations.34 Budgetary requests related to the ICJ and to peacekeeping have contributed to the shift in power from the ACABQ to the Fifth Committee.35 14.12  The ACABQ submits a detailed report on the proposed programme budget for the biennium to the General Assembly.36 It also submits a report on the accounts of the UN and all UN entities for which the Secretary-General has administrative responsibility.37 It examines on behalf of the General Assembly the administrative budgets of specialized agencies and proposals for financial and budgetary arrangements with such agencies.38

1.5  Approval and appropriation: Fifth Committee 14.13  The Fifth Committee, the main committee of the General Assembly entrusted with responsibilities for administrative and budgetary matters,39 reviews the proposed programme budget with the report of the ACABQ and, if applicable, the report of the CPC before it.40 The Fifth Committee may accept, curtail, or reject the (p. 460) recommendations of the ACABQ.41 Other main committees of the General Assembly are expected to consider the financial implications of draft resolutions that they recommend for adoption by the Assembly.42 Committees other than the Fifth Committee should not, however, consider the budgetary implications of resolutions or the budget arrangements that should be made in connection with resolutions.43

1.5.1  Composition of the Fifth Committee 14.14  Technically all member states can send representatives to the Fifth Committee, but not all of them do this.44 Fifth Committee members may be from the Ministry of Finance or the Ministry for Foreign Affairs.45 The Chair of the Fifth Committee is elected by the General Assembly on the basis of geographical distribution.46

(p. 461) 1.5.2  General debate 14.15  The Fifth Committee generally tries to obtain consensus on its budgetary recommendations, though the option remains for budgetary questions to be decided by a two-thirds majority of the member states present and voting.47 The aim varies from zero to minimal growth in each biennial budget, though this is rarely achieved.48

1.5.3  First reading 14.16  The first reading consists of the proposed programme budget, examined section by section, and consideration of and voting on the recommendations of the ACABQ.49 (p. 462) The Fifth Committee also considers adjustments that may be required to the proposed programme budget.50

1.5.4  Second reading

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14.17  The second reading takes into account the results of the first reading. It is the stage where the Committee considers the recosting of resources.51 The amounts approved on the second reading become the initial appropriations for the biennium.52 14.18  The evolution of the informal consultations, or ‘informals’, is linked to the requirement of consensus introduced in General Assembly Resolution 41/213 (1986).53 These can often be very important to the final decision on a budgetary issue.

1.5.5  General Assembly 14.19  Under the UN Charter, the General Assembly is vested with control over the budget.54 In reality, the General Assembly’s control over the regular budget translates into (p. 463) direct control over only a part of the organization’s total expenditure.55 A twothirds majority of the General Assembly is required for approval of the regular budget.56 There has been one instance of the General Assembly’s approving a budget on an interim basis.57 14.20  When approving the initial appropriations for the biennium, the General Assembly also makes provision, by a separate resolution, for unforeseen and extraordinary expenses.58

(p. 464) 1.6  Implementation and the Contingency Fund 14.21  In the first year of the biennial period, the first performance report is prepared by the Secretary-General and reviewed by the ACABQ and the Fifth Committee.59 This leads to revised appropriations at the end of the first year of the biennial period.60 The second performance report is also reviewed by the ACABQ and the Fifth Committee, and results in General Assembly’s approval of the final appropriations for the biennium.61 Appropriations remain available for 12 months following the end of the financial period.62

1.6.1  Contingency Fund 14.22  The Contingency Fund is a mechanism that makes it possible for the General Assembly to provide the Secretary-General, within certain limits, with additional resources to implement mandates not provided for in the programme budget.63 The General Assembly decides on the size of the Contingency Fund when it approves the budget outline; it is expressed as a percentage of the overall budget.64

(p. 465) 1.7  Audit 14.23  The administration of appropriations under the regular budget is subject to internal financial control, internal audit, and external audit. Internal financial control consists of the regular examination and review of financial transactions.65 Internal audits are conducted by the Office of Internal Oversight Services (OIOS).66 The findings and recommendations of the OIOS are communicated via reports to the responsible programme managers directly, or through the Secretary-General to the General Assembly.67 14.24  External audit of the UN and its Funds and Programmes is undertaken by the Board of Auditors.68 The Board consists of three members, each of whom is an Auditor-General (or equivalent) of a member state.69 The Board may make observations with respect to the efficiency of financial procedures, accounting systems, internal financial controls, and the administration and management of the organization; it is completely independent and solely responsible for the conduct of the audit.70 The report (p. 466) of the Board of Auditors is transmitted to the General Assembly through the ACABQ.71 The JIU was created in 1966.72 The JIU has a broader scope than the Board of Auditors and is also empowered to deal with inter-organization coordination.73 It consists of not more than 11 Inspectors appointed by the General Assembly on the basis of their special experience in national or international administrative and financial matters.74 The JIU prepares its annual programme of work and

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submits annual reports to the General Assembly.75 It may issue reports, notes, or confidential letters.76

1.8  The Working Capital Fund 14.25  The Working Capital Fund was established in 1946 to provide advances to finance budgetary appropriations, pending the receipt of contributions, and to finance unforeseen and extraordinary expenses, pending appropriation by the General Assembly.77 Member states make advances to the Fund in accordance with the scale of assessment adopted by the General Assembly for contributions to the budget for the relevant year.78 Advances from the Working Capital Fund may be made only within the terms prescribed by the General Assembly and with the approval of the Under-Secretary-General for Management; in practice, the Secretary-General is authorized to make advances from the Fund for specific reasons.79

(p. 467) 1.9  Reform 14.26  There have been various reform proposals aimed at improving the cycle of budget preparation, streamlining the budget approval process, and increasing accountability. Several of these have originated from the Secretary-General.80 Other reform proposals have come from external sources, sometimes in the wake of controversies.81

2.  Financing of peacekeeping 2.1  Special accounts for peacekeeping measures 14.27  The costs of peacekeeping operations were initially under the regular budget. The establishment of the First UN Emergency Force in the Middle East (UNEF I) in 1956 and the UN Operations in the Congo (ONUC) in 1960 led to the creation of special accounts.82 It was not until 1963 that the General Assembly established (p. 468) certain principles for the financing of peacekeeping operations.83 Ten years later, the Assembly made ad hoc arrangements for the financing of the Second United Nations Emergency Force (UNEF II) based on those principles.84 The arrangement has been used for nearly all subsequent peacekeeping operations.85

(p. 469) 2.2  Budget submission and approval 14.28  According to the Financial Regulations and Rules, budgets for peacekeeping operations are prepared by the Secretary-General for consideration and approval by the General Assembly.86 In practice, the budgets are prepared through exchanges between the Controller and the Department of Field Support (DFS).87 As with the regular budget, the ACABQ and the Fifth Committee review the budgets for peacekeeping operations.88 Unlike the biennial regular budget, the peacekeeping budget is annual, with the financial period for each peacekeeping operation being from 1 July to 30 June.89 The budgets are based on the relevant mandates from the Security Council.90 Twice a year the Secretary-General must submit to the General Assembly a table summarizing the budgetary requirements of each peacekeeping operation for the financial period 1 July to 30 June, including a breakdown of expenditure by major line item and the aggregate total resource requirement.91

(p. 470) 2.2.1  Department of Field Support 14.29  In 2008, the Department of Peacekeeping Operations was restructured and the Department of Field Support (DFS) was established.92 The DFS is dedicated to the staffing and equipping of UN field-based peace operations.93

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3.  International Tribunals 14.30  The ICTY and the ICTR are funded by special accounts separate from the regular budget.94 The ICJ is funded by the regular budget, since it is a main organ of the UN.95 Both Tribunals were established by the Security Council and will be wound down according to completion strategies.96 The budgets for the International Tribunals are biennial and have increased dramatically over time.97

(p. 471) 3.1  Apportionment of costs for International Tribunals 14.31  Half of the budget is assessed according to the scale of assessments applicable to the regular budget,98 and half according to the scale of assessment for peacekeeping operations.99

4.  Voluntary contributions 14.32  The UN Charter is silent as to voluntary funding, yet most parts of the UN Secretariat and specialized agencies are at least partially funded by voluntary contributions, while the Funds and Programmes rely entirely on such contributions.100 The entire UN System receives more funding from voluntary contributions than from assessed contributions to the regular budget.101 The UN accepts a voluntary contribution, in cash or in kind, provided that the purpose for which the contribution is made is consistent with the policies, aims, and activities of the organization and that certain consent requirements are met.102

(p. 472) 4.1  Donors 14.33  Voluntary contributions are received from member states103 as well as non-state contributors.104 The donor base is rather narrow: the US has traditionally been the largest contributor of voluntary funds, though European states and Japan are also major contributors.105 Donor states tend to attach conditions to voluntary contributions by earmarking them for existing or specifically designed programmes or projects, or specific regions or countries.106 The Secretary-General has recognized the risk of a concentration of operational work on themes that correspond to donor preferences rather than to overall programme priorities defined at the national or international levels.107

(p. 473) 4.2  Trust funds 14.34  Where donors specify the purpose for which their monetary donations must be used, their contributions are treated as trust funds or special accounts.108 A significant proportion of the UN’s expenditure comes from trust funds.109 Donors can be member states, private entities or persons, other UN organizations, and international organizations outside the UN system.110 Trust funds and special accounts may be established by the Secretary-General or the General Assembly, and must be reported to the ACABQ, with their purposes and limits being clearly defined.111 A pledge from a prospective donor may only be accepted after the trust fund has been formally established.112 The administration of trust funds is delegated to individual implementing offices.113 14.35  Trust funds are classified into two main categories: general trust funds and technical cooperation trust funds.114 There are trust funds for a wide range of issues.115 The (p. 474) one limitation on the creation of trust funds is that they cannot be established to undertake activities that are not activities entrusted to the organization.116 No comprehensive list of trust funds appears to exist.117 The monitoring and reporting on trust funds is decided by the donors.118 Although the internal and external auditors of the UN are responsible for auditing trust funds, donors frequently request their own audits or additional audits.119 The lack of a standardized approach to monitoring and reporting on

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trust funds has led to concerns about governance and accountability.120 Attempts at reforming the management of trust funds have not been successful.121 (p. 475) 14.36  The management of different donor cycles and procedures, and onerous reporting requirements of specific donors, involve high transactions costs.122 These costs must be reimbursed directly from the trust fund in question.123

4.2.1  UN Fund for International Partnerships 14.37  The UN Fund for International Partnerships (UNFIP) was established in 1998 by the Secretary-General to channel the funds from the UN Foundation to the UN System.124 Unlike most other trust funds, it has an Advisory Board.125

4.2.2  UN Democracy Fund 14.38  The UN Democracy Fund (UNDEF) is one of the main general trust funds.126 Its purpose is to support democratization around the world.127 It has an Advisory Board.128

(p. 476) 4.2.3  ICJ Trust Fund 14.39  The Trust Fund to Assist States in the Settlement of Disputes through the International Court of Justice (ICJ Trust Fund) was established in 1989 by SecretaryGeneral Javier Pérez de Cuéllar.129 Its purpose is not to finance the Court itself but to advance the peaceful settlement of disputes by offering limited financial assistance to states.130 The implementing office is the Office of Legal Affairs.131 The Fund is financed by voluntary contributions from states, intergovernmental organizations, national institutions, NGOs, individuals, and corporations.132 It has had a decreasing level of resources since its inception.133 Attention is regularly drawn to the Fund during the annual presentation by the President of the Court to the General Assembly.134 To benefit from the ICJ Trust Fund, the applicant must be a state submitting a dispute under certain conditions, or a state seeking assistance with costs related to execution of a judgment.135 A Panel of Experts examines the applications.136 The financial assistance consists of an advance and reimbursement for expenses incurred.137 The (p. 477) ICJ Trust Fund has received only occasional applications for financial assistance. It has not had the take-up that might have otherwise been expected.138

4.3  Private sector 14.40  Contributions from the private sector have a long history with the UN.139 Private sector contributions are associated with global funds and foundations and public–private partnerships.140

4.4  Gifts 14.41  Gifts are defined and treated as voluntary contributions, and are subject to the same approval process.141 The Secretariat cannot accept gifts without the permission of the Under-Secretary-General for Management.142

5.  Self-support 14.42  The UN generates a limited amount of income through staff assessment, miscellaneous activities, and services rendered. Different parts of the UN generate income to varying extents.

(p. 478) 5.1  Income from staff assessment 14.43  Staff assessment is an amount deducted from all UN staff members’ gross salary, regardless of their nationality.143 The percentage of the staff assessment depends on the salary of the staff member and whether he/she has dependants.144 The amount raised by

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staff assessment constitutes income of the organization.145 The spending of this income is subject to restrictions.146

5.2  General income 14.44  The UN draws some income from miscellaneous sources, including rental of premises, reimbursement for services provided to specialized agencies, bank interest, sale of used equipment, refund of previous years’ expenditures, contributions of non-member states, television, and similar services.147 The spending of this income is not subject to restrictions.

(p. 479) 5.3  Income from services rendered to the public 14.45  The UN produces a small amount of income from the operations of the UN Postal Administration, the sale of UN publications, services to visitors (such as tours), revenue services of the Department of Economic and Social Affairs, sale of gift items, newsstand operations, garage operations, catering, and other commercial operations.148 This is somewhat offset by the expenditure incurred for the funding of the posts and infrastructure required for these services.

6.  Apportionment of expenses of the organization 14.46  The regular budget of the UN is apportioned among its member states in accordance with the scale of assessments approved by the General Assembly on the recommendation of the Committee on Contributions.149

6.1  Notion of ‘expenses of the Organization’ 14.47  Article 17(2) of the UN Charter provides that ‘[t]he expenses of the Organization shall be borne by the Members as apportioned by the General Assembly’. The phrase ‘expenses of the Organization’ has been interpreted broadly by the ICJ, and clearly goes beyond the expenses listed in the regular budget.150 The test is the relationship of the expense to the purposes of the UN.151

(p. 480) 6.2  Committee on Contributions 14.48  The Committee on Contributions is appointed by the General Assembly and consists of 18 members.152 No two members shall be nationals of the same state, and they shall be selected on the basis of ‘broad geographical representation, personal qualifications and experience’ and shall serve for a period of three calendar years.153 The Committee on Contributions advises the General Assembly concerning the apportionment, under Article 17(2) of the UN Charter, of the expenses of the organization among member states, broadly according to capacity to pay.154 The Committee also advises the Assembly on the assessments to be fixed for new member states, on appeals by member states for a change of assessments, and on action to be taken with regard to the application of Article 19 of the UN Charter in the case of arrears.155

6.3  Scale of assessments 14.49  The principle of capacity to pay is the fundamental criterion in the apportionment of the expenses of the UN.156 Member states’ assessed contributions are based on their gross national income (GNI), which is converted to US dollars after adjustments for external debt and low per-capita income.157 There are minimum (‘floor’) and maximum (‘ceiling’) rates of assessment.158 The scale of assessments, once (p. 481) fixed by the General Assembly, is not subject to a general revision for at least three years, ‘unless it is clear that there have been substantial changes in relative capacity to pay’.159

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14.50  New member states must make a contribution for the year in which they join the UN.160 Non-member states contribute according to their participation in conferences and their membership of bodies, such as the ICJ.161 Special (p. 482) arrangements have been made in the context of the dissolution of former member states.162 14.51  In addition to the regular budget, the scale of assessments is also used to apportion the costs of the ICTY, the ICTR, and the Capital Master Plan.163 A modified scale is used to apportion the costs of peacekeeping operations.164

6.4  Apportionment of costs for peacekeeping operations among member states 14.52  The financing of peacekeeping operations is the collective responsibility of the member states, and the costs are expenses of the organization to be borne in accordance with Article 17(2) of the UN Charter.165 The assessment rates are based on the scale of assessments for the regular budget,166 with a system of adjustments taking into (p. 483) account the relative economic wealth of member states.167 The permanent members of the Security Council are required to pay a larger share, and are assessed at a higher rate than for the regular budget because of their special responsibilities for the maintenance of peace and security.168 14.53  Some member states voluntarily decide to be reclassified at a higher level for the purpose of the apportionment of the expenses of peacekeeping operations.169 Certain member states also voluntarily provide additional resources to support peacekeeping efforts on a non-reimbursable basis in the form of transportation, supplies, personnel, and financial contributions beyond their assessed share of peacekeeping costs.170 Member states may request to pay a lesser amount than their level of classification would require.171 (p. 484) 14.54  The Peacekeeping Support Account was established in 1990 for financing human resources and non-human resources requirements for backstopping and supporting peacekeeping operations at UN Headquarters; any changes in this limitation require the prior approval of the General Assembly.172 It forms part of the financing of peacekeeping operations.173 14.55  Expenditure for peacekeeping has fluctuated over the years, depending on the number and size of operations.174 The overall trend has been upwards.175 The cost of peacekeeping has been the subject of complaints and decisions not to increase operations in certain countries.176 As with the regular budget, there is also the problem of member states’ withholding or delaying contributions.177 A separate Peacekeeping (p. 485) Reserve Fund was established in 1992 to assist with financing for the start-up phase of new peacekeeping operations, the expansion of existing ones, or unforeseen and extraordinary expenditures related to peacekeeping.178 Advances may be made from the Fund under certain conditions.179

6.4.1  Special political missions 14.56  There is a wide variety of special political missions.180 Their number and cost have increased dramatically in recent years.181 Special political missions are funded by the (p. 486) regular budget and are partly responsible for the growth in that budget. This has caused concern among member states, because special political missions are almost always authorized by the Security Council,182 yet there is no mitigation of the scale of assessments as there is with regard to peacekeeping missions authorized by the Security Council. This led to the decision to fund special political missions in a manner similar to peacekeeping missions.183

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6.4.2  Apportionment of costs for peacekeeping operations between the UN and troop-contributing countries 14.57  Initially, a member state providing a unit to a peacekeeping operation was responsible for all expenses relating to equipment and salaries, and all other expenses were to be borne by the UN.184 This formula was soon modified, so that the UN assumed financial responsibility and reimbursed member states for all extraordinary costs they incurred in making troops available, including pay and allowances over and above normal costs to a member state and the replacement of equipment that was destroyed or worn out beyond the standard depreciation schedule.185 Standard (p. 487) rates of reimbursement are approved periodically by the General Assembly.186 There have been delays in processing such reimbursements.187

6.5  Payment of assessed contributions in general 14.58  The Secretary-General is responsible for informing member states of their commitments in respect of annual contributions and advances to the Working Capital Fund.188 Payment shall be made in full within 30 days of the receipt of the communication received from the Secretary-General, or on the first day of the calendar year, whichever is later.189

6.6  Currency 14.59  In principle, assessed contributions must be paid in US dollars.190 This requirement may hinder the payment of contributions by member states with weak (p. 488) currencies.191 Fluctuations in the US dollar have led to occasional losses to the UN.192

6.7  Arrears 14.60  The non-payment or delayed payment of assessed contributions is a chronic problem for the UN.193 Article 19 of the Charter provides: A Member of the United Nations which is in arrears in the payment of its financial contributions to the Organization 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. The General Assembly may, nevertheless, permit such a Member to vote if it is satisfied that the failure to pay is due to conditions beyond the control of the Member.194 (p. 489) Voluntary contributions, which fund a large proportion of the UN’s expenses, are not covered by Article 19.195 14.61  The loss of the right to vote is automatic and not dependent upon a General Assembly resolution.196 It applies to votes in the plenary and the Main Committees.197 A state recovers its right to vote upon making the requisite payment.198 The prospect of losing the right to vote has generated turmoil in the past.199 During the General Assembly session of 1964–5, the Soviet Union and France were in violation of Article 19 because they had accumulated arrears equivalent to the amount of the contributions due from them for the preceding two years. Rather than impose the Article 19 sanction, the General Assembly delayed the session by two-and-a-half months, and then adopted draft proposals by consensus without a formal vote (‘no objection procedure’) during the entire session.200 (p. 490) 14.62  The General Assembly has set out the procedure for consideration of requests for exemption under Article 19 in a resolution.201 Fewer than 10 member states tend to request exemption under Article 19 each year.202 Member states in arrears may engage in multi-year payment plans.203

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14.63  In some cases, a member state expressly refuses to pay its contributions for political reasons rather than incapacity to pay.204 The sanction in Article 19 has been (p. 491) applied from time to time.205 The General Assembly has also chosen not to apply this sanction by avoiding votes.206 Member states have also avoided the sanction by paying a bare minimum amount of their arrears,207 or by not attending General Assembly sessions.208 The threat or application of Article 19 has not been an effective incentive.

(p. 492) 6.8  Financial situation of the UN 14.64  The UN has suffered financial crises caused by the withholding or delay of assessed contributions in the 1960s, 1980s, 1990s, and 2000s.209 Various creative ideas for additional financing have been rejected.210

6.9  Capital Master Plan 14.65  The major refurbishment of the UN Headquarters in New York presented the problem of how to fund a major, stand-alone project. The Capital Master Plan was initially funded from an appropriation in the regular budget.211 A special account was subsequently established.212 Funding came from all member states using the scale of assessments for the 2007 regular budget.213

(p. 493) 7.  Administrative and budgetary coordination between the UN and specialized agencies 14.66  According to Article 17(3) of the UN Charter: The General Assembly shall consider and approve any financial and budgetary arrangements with specialized agencies referred to in Article 57 and shall examine the administrative budgets of such specialized agencies with a view to making recommendations to the agencies concerned. This has provided a basis for the General Assembly to take up questions of common interest in the fields of budget, finance, and administration, and to encourage system-wide coherence.214 The CEB facilitates coordination and cooperation on substantive and management issues facing UN System organizations.215 The relationship agreements concluded between the UN and specialized agencies according to Articles 57 and 63 cover cooperation in administrative, budgetary, and financial matters to varying degrees.216 (p. 494) 14.67  There is some coordination in the planning and presentation of agency budgets, but they are not included in a consolidated general budget of the UN.217 Despite the expectation in Article 17(3) that the General Assembly shall ‘examine’ the administrative budgets of the specialized agencies, in practice, the Assembly takes note of a broad review undertaken by the CEB, concurring with its recommendations.218

Footnotes: 1

  It was the intention of the drafters of the UN Charter to include all costs (administrative and operational) in the UN regular budget, and this was confirmed by the ICJ in Certain Expenses of the United Nations (Advisory Opinion) ICJ Rep 1962, p 151 at 157–61. The first budgets of the UN covered nearly all income and expenditure, but as it initiated more and more operational activities, special accounts and other funds were created (Regs 4.13 and 4.14 of the Financial Regulations and Rules of the United Nations (hereinafter ‘Financial Regulation and Rules’) (UN Doc ST/SGB/2013/4 (2013)).

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2

  The total resources available to the UN include voluntary contributions, funding for the international tribunals, and special accounts for peacekeeping. In 2014–15, the regular budget amounted to $5.9 billion (UN Doc A/71/583 (2016), Table 1) and the extra-budgetary resources (largely voluntary contributions made through trust funds) totalled $10.6 billion (UN Doc A/71/583, 28 October 2016, Table 2); the budget of the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) for 2014–15 was $265 million (GA Res 70/241 (2015) and GA Res 70/242 (2015)). Peacekeeping, which is calculated on an annual, not a biannual basis, had approved resources of approximately $8.7 billion for 2015 (UN Doc A/71/583 (2016), Table 2). 3

  The regular budget approved for the 2014–15 biennium was $5.5 billion (GA Res 68/248 A (2013)), which was later readjusted to $5.9 billion (UN Doc A/71/583, 28 October 2016). This included salaries for staff members, general operating costs, travel, and grants and contributions (UN Doc A/68/6 (Introduction) (2013), Table 3). In 1946, the General Assembly approved an annual budget of $21.5 million (GA Res 14(I) (1946)). 4

  Reg 2.3 of the Financial Regulations and Rules, n 1. In 2014–15, the budget had 14 parts: overall policy-making, direction, and coordination; political affairs; international justice and law; international cooperation for development; regional cooperation for development; human rights and humanitarian affairs; public information; common support services; internal oversight; jointly financed administrative activities and special expenses; capital expenditures; safety and security; development account; and staff assessment. 5

  Reg 5.6 of the Financial Regulation and Rules, n 1. However, Rule 105.1 allows the General Assembly to delegate its authority to the Advisory Committee on Administrative and Budgetary Questions (ACABQ or ‘the Advisory Committee’), so that the UnderSecretary-General for Management need only obtain the approval of the ACABQ in order to transfer credits between programme budget appropriations. Moreover, the SecretaryGeneral may freely transfer funds within each section. 6

  1973 UNYB 832; GA Res 3043 (XXVII) (1972). Reg 1.3 of the Financial Regulations and Rules provides that the financial period shall consist of two consecutive calendar years, except for peacekeeping operations with special accounts whose financial periods are one year from 1 July to 30 June (Financial Regulations and Rules, n 1). 7

  GA Res 58/269 (2003) requested the Secretary-General to prepare, on a trial basis, for submission to the General Assembly, a biennial strategic framework to replace the four-year medium-term plan. GA Res 62/236 (2007) decided to maintain the strategic framework as the principal policy directive of the UN, with effect from the biennium 2010–11. GA Res 59/275 (2004) requires the strategic framework to take due account of the internationally agreed development goals, including those contained in the United Nations Millennium Declaration (GA Res 55/2 (2000)) and the outcomes of the major UN conferences and international agreements since 1992, including the 2005 World Summit Outcome (GA Res 60/1 (2005)). 8

  The biennial programme plan provides a structure of programmes and sub-programmes for use in the budget. It uses the results-based budgeting framework of objectives, expected accomplishments, and indicators of achievement (Reg 2.3 of the Financial Regulations and Rules, n 1). 9

  Reg 3.2 of the Regulations and Rules Governing Programme Planning, the Programme Aspects of the Budget, the Monitoring of Implementation and the Methods of Evaluation (hereinafter ‘Regulations and Rules Governing Programme Planning’) (UN Doc ST/SGB/ 2016/6 (2016)); and Regs 2.4–2.7 of the Financial Regulations and Rules, n 1. See, eg, the Report of the CPC (UN Doc A/71/16 (2016)).

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10

  ECOSOC Res 920 (XXIV) (1962).

11

  The membership was originally 11 (ECOSOC Res 920 (XXIV) (1962)), but has been increased over the years (eg ECOSOC Res 2008 (LX) (1976) and GA Res 42/450 (1987)). Broad geographical representation is required by GA Res 42/450 (1987), GA Res 42/318 (1987), and ECOSOC Res 1987/94 (1987). GA Res 42/450 decided that there should be nine members from African States, seven members from Asian-Pacific States, four from Eastern European States, seven from the Group of Latin America and Caribbean States, and seven from the Western Europe and Other States Group. There is a perception that the Western Europe and Other States Group is disadvantaged by the composition of the membership, and for this reason that regional group does not always propose members for election to the CPC. There are often no members from the US, UK, Japan, Germany, Canada, Australia, or New Zealand. This Group may nonetheless send observers to CPC meetings, and from 2005 the decision was taken not to differentiate between the views of the members and the observers in CPC reports. 12

  Terms of Reference of the Committee for Programme and Coordination (ECOSOC Res 2008 (LX) (1976) and Rule 104.1 of the Regulations and Rules Governing Programme Planning, n 9). It also assesses the results achieved from current activities, assesses the validity of legislative decisions older than five years, recommends the order of priorities among UN programmes as defined in the strategic framework, guides the Secretariat on programme design by interpreting legislative intent, and seeks to avoid overlapping and duplication. See also Regs 4.1–4.16 of the Regulations and Rules Governing Programme Planning, n 9, and ECOSOC Res 920 (XXXIV) (1962). Under the 1986 compromise, the General Assembly gave the CPC a ‘decisive role’ in controlling programme contents and budget size by setting a ceiling on the budget and deciding on programme contents by consensus. The member states that were the main contributors to the budget thus had greater influence over the budget at an early stage (Beigbeder, ‘The Continuing Financial Problems of the United Nations: Assessing Reform Proposals’ in Documents on Reform of the United Nations (eds Taylor, Daws, and Adamczick-Gerteis, 1997), 207. 13

  ECOSOC Res 920 (XXXIV) (1962), paras 2(b)–4. Members of the JIU are free to participate in CPC meetings and there are occasional joint consultations. The different nature of the bodies can lead to some tensions. The CPC is a member state body and a subsidiary organ of the General Assembly focused on programme coordination across the UN System. It reports to the Chief Executive Board for Coordination. The JIU is an oversight body and its members may occasionally attend CPC meetings. However, the JIU’s focus is usually very specific, unlike the broad, system-wide view of the CPC. The ACABQ is an expert committee that advises the General Assembly and only pays limited attention to the Funds and Programmes. There is hardly any interaction between the CPC and ACABQ in practice. 14

  GA Res 41/213 (1986), Annex I, requires the Secretary-General to submit, in off-budget years, an outline of the programme budget for the following biennium containing an indication of: (i) a preliminary estimate of resources to accommodate the proposed programme of activities during the biennium; (ii) priorities, reflecting general trends of a broad sectorial nature; (iii) real growth, positive or negative, compared with the previous budget; and (iv) size of the contingency fund expressed as a percentage of the overall level of resources. See Reg 3.2 of the Regulations and Rules Governing Programme Planning, n 9, and Regs 2.4–2.7 of the Financial Regulations and Rules, n 1. See also UN Docs A/69/416

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(2014) (Report of the Secretary-General) and A/69/556 (2014) (ACABQ Report), and GA Res 69/264 (2014). 15

  Reg 3.2 of the Regulations and Rules Governing Programme Planning, n 9. This review overlaps with the ACABQ review of the estimates. 16

  Rule 153 of the Rules of Procedure of the General Assembly (UN Doc A/520/Rev.18 (2016)). 17

  Secretary-General Boutros Boutros-Ghali, in requesting funds for the establishment of ‘safe havens’ in Bosnia, and Secretary-General Kofi Annan, in requesting a force for Eastern Congo, were pressured by leading contributors to keep the budgets for these missions low despite the risk of inadequate military contingents. Reform proposals were introduced in the 60th General Assembly session directed to increasing the Secretary-General’s budgetary discretion (‘Investing in the UN’, GA Res A/60/283 (2006)). The General Assembly approved a modest package of reforms, granting the Secretary-General for the first time a spending authorization of $20 million per biennium for the periods 2006–7 and 2008–9 (GA Res A/ 60/283 (2006), para 6). The General Assembly has continuously approved this spending authorization for the subsequent budgets, but it has signalled that the spending authorization for the 2016–17 budget might be the last one unless the Secretary-General provides a comprehensive justification for its continuation (GA Res 70/248 (2015) and UN Doc A/70/7/Add.5 (2015), para 14). The authority of the Secretary-General to prepare the programme budget can be found in Reg 2.1 of the Financial Regulation and Rules, n 1. Art 97 of the UN Charter designates the Secretary-General as the Chief Administrative Officer of the organization, making him/her responsible for the preparation, submission, and implementation of the budget (Charter of the United Nations, 26 June 1945, 1 UNTS XVI), and Rule 157 of the Rules of the Procedure of the General Assembly) requires the Secretary-General to prepare an estimate of expenditure. 18

  Reg 3.2 and Rule 105.7(a) of the Regulations and Rules Governing Programme Planning, n 9. See also Rule 102.1(b) of the Financial Regulations and Rules, n 1. 19

  Within this Department, it is the Office of Programme Planning, Budget and Accounts that prepares the programme budget on the basis of submissions from the head of a department or office (Rule 105.8 of the Regulations and Rules Governing Programme Planning, n 9). Usually the head of a department or office and the executive officer meet with the Department of Management to discuss the submission. 20

  The Secretary-General has greater involvement in the formulation of the strategic framework than in the specific budget proposals of individual departments and offices. He/ she meets with the Controller and some other senior staff to discuss the budget outline for the coming biennium (Rule 105.7(b) of the Regulations and Rules on Programme Planning, n 9). During this meeting, the Secretary-General usually expresses what he/she wants to be the focus of the budget and the increase or decrease in the global amount. His/her reviews of specific budget proposals take place in the first third of the budget year (January–April), as the Regulations and Rules on Programme Planning require the Secretary-General to submit to the CPC and ACABQ advance copies of the programme budget by the end of April of the year preceding the budgetary period (Reg 5.7 of the Regulations and Rules Governing Programme Planning, n 9). The involvement of the Secretary-General also depends on his/her background. Secretary-General Kofi Annan, as a former Controller, was heavily involved in the budgetary process from beginning to end.

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The Secretary-General may also develop his/her own initiatives based on new mandates and needs of the organization, such as Kofi Annan’s proposals for funding safety and security services out of the regular budget rather than the prior cost-sharing arrangement established under GA Res 56/255 (2001), and for introducing a strengthened and unified security management system (UN Docs A/59/365 and A/59/365/Add.1 (2004)). SecretaryGeneral Ban made a proposal outside of the regular budget to strengthen the conflict resolution mechanism of the Department of Political Affairs (DPA) (UN Doc A/62/521 (2007)), which was in part accepted by the General Assembly (GA Res 63/261 (2008)). Member states have been critical of such initiatives as a piecemeal approach to budgeting that interferes with the planning process. 21

  In GA Res 58/269 (2003), the General Assembly decided that the programme narratives of the programme budget fascicles should be identical to the biennial programme plan, that the Secretary-General should include in the introduction of the budget fascicles information on the new and/or revised mandates approved by the General Assembly subsequent to the adoption of the biennial programme plan, and that the CPC should ensure that resources were clearly identified in all the sections of the proposed programme budget for the performance of the monitoring and evaluation functions. This wording is now incorporated in Reg 3.2(6) and (7) and Reg 5.8 of the Regulations and Rules Governing Programme Planning, n 9. See also Regs 2.2 and 2.3 and Rule 102.2 of the Financial Regulations and Rules, n 1. 22

  Schermers and Blokker, International Institutional Law: Unity within Diversity (5th edn 2011), 703. The Controller is an influential actor in the formulation of the budget and is embedded in several phases of the process. He/she ensures compliance with the Financial Regulations and Rules and Regulations and Rules on Programme Planning, and is the interface with the various committees. The personality of the Controller may define his/her role. Some perceive the Controller as a central figure, while another view is that the Controller was originally the ‘authoritative spokesman’ of the Secretary-General on all budgetary matters but the role has been reduced over the years to implementing the budget and managing the funds available to the UN under the Under-Secretary-General for Management (Schmidt and Koschorreck, ‘Article 17’ in The Charter of the United Nations: A Commentary (eds Simma et al, 1994), 300). See also Woeste and Thomma, ‘Article 17’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), 587. 23

  Reg 2.8 of the Financial Regulations and Rules, n 1. These may be submitted when there is a degree of urgency, as well as in respect of decisions taken by the General Assembly, the Security Council, ECOSOC, or the Trusteeship Council, or in cases of changes in inflation or currency fluctuations (Rule 102.4). 24

  Reg 2.5 of the Financial Regulations and Rules, n 1; Reg 3.2 of the Regulations and Rules Governing Programme Planning, n 9; and Rule 157 of the Rules of Procedure of the General Assembly, n 16. This review tends to take place from May to July of the budget year (see Reg 2.5 of the Financial Regulations and Rules, n 1, which says that the SecretaryGeneral shall submit his/her report to the ACABQ at least 12 weeks prior to the commencement of the regular session of the General Assembly). 25

  The programme of work of the ACABQ is determined by the requirements of the General Assembly and the other legislative bodies to which the ACABQ reports. As an indication, during the 43rd session (1988), the ACABQ made 10 main reports to the General Assembly. During the 64th session (2009), it made 58 reports to the General Assembly, and during the 70th session, the ACABQ made 91 reports to the General Assembly alone.

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26

  Rule 155 of the Rules of Procedure of the General Assembly, n 16. GA Res 1659 (XVI) (1961) increased the membership of the ACABQ from 9 to 12. GA Res 2798 (XXVI) (1971) increased the membership from 12 to 13. GA Res 32/103 (1977) increased the membership from 13 to 16. The election of the ACABQ members is one of the few times that the General Assembly is full. Most members of the ACABQ are former diplomats. Several are usually former members of the Fifth Committee, but there is no exchange of members in the reverse direction. ACABQ members do not tend to serve on the Fifth Committee; they instead may go to the CPC, the JIU, or the governing bodies of other international organizations. 27

  The three ‘financial experts’ are never identified by name, and it may be doubted whether this requirement is in fact adhered to and, thus, whether there are three financial experts on the ACABQ at any given time. The main difficulty in ensuring the presence of three financial experts is the political nature of elections at the UN, where member states push for their national candidates and there is no vetting. Attempts by certain member states to introduce criteria for the elections of ACAQB members have not been successful to date. 28

  Rule 156 of the Rules of Procedure of the General Assembly, n 16. Members shall retire by rotation and are eligible for reappointment. The three financial experts shall not retire simultaneously. The General Assembly appoints the members of the ACABQ at the regular session immediately preceding the expiration of the term of office of the members, or, in case of vacancies, at the next session. GA Res 32/103 (1977) amended Rule 156 whereby the members would serve for a period of three years corresponding to ‘three calendar years’ rather than ‘three financial years, as defined in the Financial Regulations of the United Nations’. In practice, most members serve for two terms. In terms of geographic representation, the practice has been to have members from the US, the EU, and Japan, since they are the major contributors to the UN regular budget. 29

  Ambassador Mselle of Tanzania served as Chair for 29 years (1974–2003). Since then there have been five different Chairs in a 14-year period. The sense is that it is not desirable to have the same Chair for a lengthy period of time. The Chair of the ACABQ receives a salary from the UN that is almost at the level of UnderSecretary-General (UN Doc A/63/354 (2008), Annex). A proposal to provide the Vice-Chair with a salary was rejected in 2009. The Chair benefits from the privileges and immunities referred to in Arts V and VII of the Convention on the Privileges and Immunities of the United Nations (GA Res 3188 (XXVIII) (1973)). 30

  This is not surprising, given the political nature of the elections to this body.

31

  Rule 157 of the Rules of Procedure of the General Assembly, n 16. During the Preparatory Commission of the United Nations, a proposal to give the ACABQ a supervisory role over the Secretary-General’s financial management was not accepted (Report of the Preparatory Commission of the United Nations (UN Doc PC/20 (1945)), pp 106–7; Woeste and Thomma, n 22, 578–9). In practice, the ACABQ exercises a certain supervisory role over the organization’s financial management (ibid, 588). See also Chesterman, Johnston, and Malone, Law and Practice of the United Nations: Documents and Commentary (2nd edn, 2016), 266–7. 32

  The Office of Legal Counsel has observed that the level of minutiae with which the ACABQ and Fifth Committee concern themselves ‘should hardly fall within the purview of an intergovernmental organ’ and they ‘should more properly concern [themselves] with the reasonableness of the overall budgetary envelope’. For example, the Secretariat has had to answer questions about the budget, such as the details of estimates of travel requirements of the Secretary-General, including number of trips, destinations, duration, and the purpose

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of travel (‘Note relating to the powers and role of the Secretary-General’ in [2006] UN Juridical YB 465–6). 33

  Rule 157 of the Rules of Procedure of the General Assembly, n 16.

34

  The ACABQ report on a particular issue is the starting point for discussions in the Fifth Committee, but it is not always accepted in its entirety. No records are kept on the frequency with which the Fifth Committee overrules the ACABQ, but anecdotally there are examples of the Fifth Committee’s not being entirely satisfied with ACABQ reports. The Fifth Committee has seen the ACABQ as encroaching on the role of the CPC by providing comments on programmes. It is ultimately the responsibility of the Controller to interpret what the Fifth Committee has approved and what it has modified in relation to the ACABQ recommendations. During the 55th session, the General Assembly considered the meaning of the terms ‘takes note of’ and ‘notes’. It adopted a decision that these are ‘are neutral terms that constitute neither approval nor disapproval’ (UN Doc A/55/488 (contained in UN Doc A/55/49 (vol III) (2000–2001)), p 92). However, in the working practice of the Fifth Committee, when it ‘takes note’ of an ACABQ recommendation, this is understood in practice as a rejection of the recommendation. 35

  The Fifth Committee overruled the ACABQ by granting the ICJ’s request for six Law Clerks in the 2010–12 budget (GA Res 64/243 (2009), para 72; cf ACABQ Report (UN Doc A/ 64/7 (2009), para III.4). In General Assembly resolutions on the financing of peacekeeping, the Assembly sometimes endorses ACABQ reports subject to several changes (eg, GA Res 63/290 (2009), para 10 and GA Res 63/296 (2009), para 11; cf GA Res/62/251 (2008), para 2, which requests full implementation of the ACABQ report). 36

  Rule 157 of the Rules of Procedure of the General Assembly, n 16. This report is submitted at the beginning of each regular session at which the proposed programme budget for the following biennium is to be considered. The Chair of the ACABQ introduces the report to the Fifth Committee and provides an executive summary. If the report in question is controversial, this introduction may be an important aspect of whether or not the report is endorsed in its entirety. ACABQ ‘recommendations’ in the report may be positive (in favour of granting requests) or negative (against granting requests). 37

  Rule 157 of the Rules of Procedure of the General Assembly, n 16. The timing of such reports in specified in the Financial Regulations and Rules, n 1. 38

  Rule 157 of the Rules of Procedure of the General Assembly, n 16.

39

  This function was reaffirmed by the General Assembly in its Res 45/248 (GA Res 45/248 B, Sect VI (1990)). 40

  This review tends to take place from October to December of the budget year (see Reg 2.4 of the Financial Regulations and Rules, n 1, which says that the Secretary-General shall, during the second year of the budget period, submit his/her proposed budget to the General Assembly for the following budget period at its regular session). In general, the Fifth Committee meets during the main part of the General Assembly session (September to December). Due to its heavy workload, it also meets during a resumed session in March. A second resumed session in May deals with administrative and budgetary aspects of UN Peacekeeping (GA Res 49/233 A, Sect I (1994)). The Fifth Committee may also consider urgent matters relating to the financing of a peacekeeping mission authorized by the Security Council at any of its sessions. 41

  The ACABQ’s conclusions and recommendations form the basis of the draft resolutions and decisions recommended by the Fifth Committee (see Frequently Asked Questions, Fifth

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Committee, at http://www.un.org/en/ga/fifth/faq.shtml), but they are not always adopted in their entirety (see para 4.11). 42

  On certain occasions, draft resolutions of the main committees use the phrase ‘within available resources’. The ACABQ expressed concern about the use of this phrase and the difficulties that such limitations have on the implementation of mandated activities (UN Doc A/54/7 (1999), paras 66–7). 43

  Rule 153 of the Rules of Procedure of the General Assembly, n 16, says: ‘No resolution involving expenditure shall be recommended by a committee for approval by the General Assembly unless it is accompanied by an estimate of expenditures prepared by the Secretary-General. No resolution in respect of which expenditures are anticipated by the Secretary-General shall be voted by the General Assembly until the Administrative and Budgetary Committee (Fifth Committee) has had an opportunity of stating the effect of the proposal upon the budget estimates of the United Nations.’ When a substantive main committee is considering a draft resolution, the Secretary-General submits a financial implications statement to the main committee (Rule 154 of the Rules of Procedure of the General Assembly, n 16). The main committee may accordingly amend the draft resolution. The Secretary-General then prepares another financial implications statement (which is generally more detailed and includes modalities of budgetary arrangements) for the Fifth Committee. The Fifth Committee uses that statement and the recommendations of the ACABQ to formulate its report to the Assembly. 44

  See, eg, the list of representatives from the participating delegations during the 70th session of the General Assembly (UN Doc A/C.5/70/INF/1/Rev.2 (2016)). Most delegates attend meetings when there is a vote. During discussions (without a formal vote), it is usual for only 10 to 20 delegations to be actively engaged. Ambassadors may appear in the last hours of a session to broker an agreement, but most of the time delegates are at the level of Second Secretary, First Secretary, or Counsellor. Delegations from small states tend to rely on a handful of active G-77 delegates for guidance as to voting (Laurenti, ‘Financing’ in The Oxford Handbook on the United Nations (eds Weiss and Daws, 2007), 691). 45

  In the early years of the UN, the Fifth Committee was led by five to seven delegates who were very knowledgeable, coming from states such as the US, the UK, and Cuba. Discussions used to be technical rather than political. In the last two decades, the political nature of the Committee has become entrenched, and meetings may consist of statements by the regional groups (eg the EU, Canada, Australia and New Zealand (CANZ), G-77, Nordics) rather than genuine discussion. Representatives from certain member states that participate actively in the Committee come from their Ministries of Finance, but most delegates come from Foreign Ministries. 46

  Rule 103 of the Rules of Procedure of the General Assembly, n 16. The Committee has maintained a rotation in the selection of its Rapporteur from the regional group that served as Chair in the previous year, filling the positions of Vice-Chair from the three remaining regional groups. The practice of the Bureau has been to designate its members to perform functions as coordinators of informal consultations on given items or questions on the agenda of the Committee (UN Doc A/58/CRP.5 (2004), pp 10–11). In 2013, the General Assembly decided on an interim arrangement on the pattern for the rotation of the chairs of the main committees of the General Assembly for the next five years (UN Doc A/68/PV.24 (2013)). 47

  In the mid-1980s, the UN was faced with financial crises that forced it to borrow from peacekeeping funds to meet needs in other areas. Member states began criticizing the methodology of the budget accounting: large contributors were abstaining from votes on resolutions in the Fifth Committee, and then voting against the budget resolutions in the General Assembly. Moreover, the previous decision-making method of two-thirds majority From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

had given developing countries the power to approve budgets without the agreement of the Western European and Other States and then-Soviet bloc, two groups that traditionally opposed budget increases (Laurenti, n 44, 691). Between 1982 and 1987, budgets were approved with the votes of member states that paid less than 30 per cent of assessed contributions (Schmidt and Koschorreck, n 22, 302). The General Assembly established the Group of High-Level Intergovernmental Experts to Review the Efficiency of the Administrative and Financial Functioning of the United Nations. In 1986, the Group submitted 70 proposals to the Assembly, but there was no consensus in the Group on streamlining the budget process (see Sura, ‘The Process of Informals in the Fifth Committee’ (2002) 39 UN Chronicle 59). The consensus-based procedure was established in 1986: para 7 of Section II of GA Res 41/213 (1986) stated that the General Assembly considered it ‘desirable that the Fifth Committee…should continue to make all possible efforts with a view to establishing the broadest possible agreement’ on the outline of the programme budget before submitting its recommendations to the General Assembly. At the same time, the President of the General Assembly made a statement affirming the relevant provisions of the Charter and its Rules of Procedure, based on a legal opinion from the Legal Counsel that the provisions on consensus decision-making of GA Res 41/213 ‘read separately or together do not in any way prejudice the provisions of Article 18 of the Charter or of the relevant Rules of Procedure of the General Assembly giving effect to that Article’, namely that budgetary questions could still be decided by a two-thirds majority of the member states present and voting. (UN Doc A/41/PV.102 (1986), pp 7–9 and GA Res 41/213 (1986), Annex II. See also Woeste and Thomma, n 22, 589.) 48

  Zero nominal growth makes no accommodation for inflation, so that new priorities have to be funded by cuts to existing programmes. The tendency is to look for an across-theboard reduction rather than make hard choices to cut specific programmes that are redundant or ineffective. The zero-growth principle was favoured by the US under the Clinton Administration. The EU supported this position in the 1990s, but since 2000 has pushed for increases (3.5 per cent in 2002–3, 20 per cent in 2004–5, and 19 per cent in 2006–7). Japan has aligned itself with the European position (Laurenti, n 44, 693). 49

  It used to be standard practice that the recommendations of the ACABQ were voted on first (Schmidt and Koschorreck, n 22, 301); however, in the aftermath of GA Res 41/213 (1986), voting was discontinued (Woeste and Thomma, n 22, 588). Under Rule 153 of the Rules of Procedure of the General Assembly, n 16, the Committee must give consideration to the financial implications of draft resolutions before the General Assembly for which additional expenditure may be required. 50

  To this end, the Fifth Committee considers statements of programme budget implications (PBIs) of draft resolutions that detail the administrative, financial, and programmatic changes the adoption of a draft resolution would entail. At least 48 hours are required before action can be taken on a draft resolution with budgetary implications, so that the Secretary-General can prepare the PBI and the ACABQ can provide its observations (UN Doc A/34/401 (1979), paras 12–13). See also Rule 153 of the Rules of Procedure of the General Assembly, n 16. The Fifth Committee also considers revised estimates for items not included in the proposed programme budget due to the unavailability of information at the time of preparing the budget, items included in the budget but on which the General Assembly had requested further information, or developments that had since occurred (see GA Res 42/211 (1987), Annex). These revised estimates are also reviewed by the ACABQ (see Regs 2.8 and 2.9 and Rules 102.4 and 102.5 of the Financial Regulations and Rules, n 1). 51

  Recosting is due to new exchange rates and inflation.

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52

  GA Res 42/211 (1987), Annex, Part C. See also GA Res 70/247 (2015) for the 2016–17 biennium, para 9, which reaffirmed the established budgetary procedures in GA Res 41/213 (1986) and GA Res 42/211 (1987). 53

  Reaching the broadest possible agreement involves multiple levels of consultations. To pass a draft text, first it has to be introduced in the formal negotiations. If there is strong disagreement in the ‘formals’, the matter is pursued in the (i) formal informals, (ii) informal informals, (iii) least formals, and (iv) political meetings. The formal informals are chaired by a Coordinator (nominated by the Chair of the Fifth Committee). The Coordinator can have an important role in arriving at an agreement. The formal informals are directed to creating a consensus; no summary records are kept, but interpretation is provided. The informal informals involve small drafting groups, with the Chair in the centre of the room; no interpretation is provided. If consensus is still not achieved, least formals are held between interested delegations and possibly the Coordinator. If disagreement persists, the Ambassadors themselves take over and hold political meetings to agree on a compromise (Sura, n 47). When consensus emerges, the proposals are ‘adopted’ in an informal meeting, and only then are they issued in the ‘L’ series (limited distribution) for action. These ‘L’ documents are adopted at a formal meeting of the Committee. The consensus approach has often led to delegations making consensus on one agenda item dependent on consensus on other items, a process leading to lengthy negotiations. On rare occasions the Fifth Committee has adopted a proposal by vote (UN Doc A/58/CRP.5 (2004), pp 10–11). 54

  Art 17(1) of the UN Charter provides that ‘[t]he General Assembly shall consider and approve the budget of the Organization’. In Effects of Awards of Compensation Made by the UN Administrative Tribunal (Advisory Opinion) ICJ Rep 1954, p 47 at 59, the ICJ held that function of approving the budget ‘does not mean that the General Assembly has an absolute power to approve or disapprove the expenditure proposed to it; for some part of that expenditure arises out of obligations already incurred by the Organization, and to this extent the General Assembly has no alternative but to honour these engagements’. In the later Certain Expenses of the United Nations (Advisory Opinion) ICJ Rep 1962, p 151 at 169, the ICJ stated that ‘obligations of the Organization may be incurred by the SecretaryGeneral, acting on the authority of the Security Council or of the General Assembly, and the General Assembly has no alternative but to honour these engagements’. Organs may incur expenditure only within existing appropriations, unless the General Assembly has made the necessary appropriation or the Secretary-General certifies that the expenditure can be made under the resolution relating to unforeseen and extraordinary expenses (Reg 2.11 of the Financial Regulations and Rules, n 1). There have been some cases of conflict between substantive and budgetary powers. In 1993, the Security Council decided that the costs of UN Peacekeeping Force in Cyprus (UNFICYP) that were not covered by voluntary contributions should be treated as expenses of the organization under Art 17(2) of the Charter (SC Res 831 (1993)). The General Assembly agreed with this approach, but also expressed concern that the advice given by the Council to the Secretariat on the financing of UNFICYP ‘did not respect the role of the General Assembly as set out in Article 17 of the Charter’ (GA Res 47/236 (1993); see also GA Decision 48/474, 23 December 2013 (contained in UN Doc A/48/49 (vol I (1994)), and GA Res 48/244 (1994)). The problem arose again with respect to the funding of the ICTY. The Security Council approved the suggestion of the Secretary-General to finance the Tribunal through the regular budget (SC Res 827 (1993) and UN Doc S/25704 (1993), para 133). The General Assembly saw this as a usurpation of its budgetary powers and decided,

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pending a final decision, to finance the Tribunal through a separate account outside of the regular budget (GA Res 47/235 (1993)). See section 3, ‘International tribunals’. 55

  See para 14.02.

56

  Art 18(2) of the UN Charter provides: ‘Decisions of the General Assembly on important questions shall be made by a two-thirds majority of the members present and voting. These questions shall include:…budgetary questions.’ In 1976, problems arose due the possibility of an absence of the required two-thirds majority. In a legal opinion, the Legal Counsel suggested two alternative courses of action: adoption of the recommendations of the Committee on Contributions by a simple majority vote of the Fifth Committee, or a ruling by the President of the General Assembly that the existing scale of assessment be continued until the Assembly had adopted a new scale, given the legal obligation of the Assembly to provide funds to cover the appropriations it had voted ([1976] UN Juridical YB 195–200). The Assembly decided to lower the floor for the rates of assessment, and requested the Committee on Contributions to reflect this decision in formulating the scale of assessment and to report back at the next session (GA Res 31/95 A and B (1976)). 57

  In 2005, at the initiative of the US, the regular budget was for the first time approved on an interim basis and reviewed in June 2006 in the light of efforts at reform. The Assembly approved a 2006–7 budget of $3.79 billion, with the proviso ‘as an exceptional measure’ that would limit the first portion of the Secretary-General’s expenditures for 2006 to $950 million (GA Res 60/247 A-C (2005)). 58

  The Assembly sets out the conditions under which the Secretary-General may enter into commitments in the biennium (see, eg, GA Res 62/239 (2007) and GA Res 70/250 (2015)). The prior concurrence of the ACABQ is required, except for certain specified commitments. In the past these have included commitments not exceeding $8 million relating to the maintenance of peace and security, commitments certified by the President of the ICJ as relating to expenses occasioned by the designation of judges ad hoc not exceeding $200,000 (Statute of the ICJ, Art 31), the calling of witnesses and the appointment of experts or assessors not exceeding $50,000 (Statute of the ICJ, Art 50), and the payment of pensions and removal/installation expenses of retiring judges and newly elected judges not exceeding $410,000 (Statute of the ICJ, Art 32(7)). Authorizations to incur commitments in accordance with such resolutions are issued by the Under-Secretary-General for Management, who then reports to the Assembly on the status of all commitments in the performance reports on the budget (Rule 102.7 of the Financial Regulations and Rules, n 1). 59

  The first performance report is usually reviewed in November of the first year of the biennial period. The primary purpose of the report is to identify adjustments required because of variations in inflation rates and exchange rates, and in standards assumed in the calculation of the initial appropriations. It also takes into account additional mandates approved by the General Assembly and the Security Council after the approval of the budget appropriation, unforeseen and extraordinary items that could not be deferred to the second year of the biennium, and decisions of policymaking organs. In 2008, eg, the first performance report identified a required amount of $217 million more than the initial appropriation approved in December 2007 (UN Doc A/63/573 (2008)), in comparison to the first performance report for the 2014–15 biennium, which identified a required amount of $34.7 million more than that approved in December 2013 (UN Doc A/69/612 (2014)). 60

  The Fifth Committee also takes action on additional resources to be added to the second year appropriation due to statements of PBIs and revised estimates. This is always subject to prior review by the ACABQ.

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61

  The second performance report considers changes in rates of exchange and inflation, unforeseen and extraordinary expenses, and an assessment of the resources actually required on the basis of expenditure during the first 21–22 months of the biennium. The report is issued in November of the second year of the biennial period. In 2007, for example, the second performance report found a decrease in expenditure of $113.2 million (UN Doc A/62/575 (2007)), and in 2015, the report found a decrease of $23.6 million (UN Doc A/70/557 (2015)). 62

  Reg 5.3 of the Financial Regulations and Rules, n 1. At the end of this 12-month period, the remaining balance will be surrendered, though extra time is allowed for appropriations relating to payment of governments for peacekeeping supplies and services (Regs 5.4 and 5.5 of the Financial Regulations and Rules, n 1). 63

  The fund accommodates additional expenditure on the basis of PBIs and revised estimates derived from legislative mandates not provided for in the programme budget. Revised estimates due to the impact of extraordinary expenses and fluctuations in exchange and inflation rates are not covered by the contingency fund (see GA Res 41/213 (1986) and GA Res 42/211 (1987)). 64

  For each biennium from 1992–3 to 2016–17, the Contingency Fund has been 0.75 per cent of the budget for the biennium. The size has varied from $18 million in 1992–3 to $41.7 million in 2016–17 (see UN Doc A/70/7/Add.7 (2015), para 3). The utilization of the Fund also varies greatly: in 1992–3, $6.3 million was used; in 1994–5, $18.5 million; in 1996–7, $5.2 million; in 1998–9, $3.7 million; in 2000–1, $18.9 million; in 2002–3, $18.9 million; in 2004–5, $13.7 million; in 2006–7, $26.6 million; in 2008–9, $19.3 million; in 2010–11, $5.2 million; in 2012–13, $26.7 million, and in 2014–15, $18.1 million (see UN Doc, A/70/7/Add.7 (2015), para 5). 65

  Regs 5.8 and 5.15 of the Financial Regulations and Rules, n 1.

66

  Reg 5.15 of the Financial Regulations and Rules, n 1. The OIOS was established in 1994 in response to criticisms by member states of the UN’s management of resources (GA Res 48/218 (1993) and UN Doc ST/SGB/262 (1994)). It forms part of the Secretariat but is operationally independent, in that the OIOS reports directly to the General Assembly and not to the Secretary-General. The Under-Secretary-General for Internal Oversight is an ‘observer’ on the Senior Management Group. The OIOS undertakes internal audit, investigation, monitoring, evaluation, and inspection. It is mandated to provide oversight coverage of all UN activities under the Secretary-General’s authority, including the Secretariat in New York, Geneva, Nairobi, and Vienna, five regional commissions, peacekeeping missions, humanitarian operations, and assistance to Funds and Programmes administered separately under the authority of the Secretary-General (including the United Nations High Commissioner for Refugees (UNHCR), United Nations Environment Programme (UNEP), the United Nations Human Settlements Programme (UN-HABITAT), and the Office of the United Nations High Commissioner for Refugees (OHCHR)). In accordance with established Memoranda of Understanding, the OIOS also provides oversight services to the United Nations Convention to Combat Desertification and the United Nations Framework Convention on Climate Change. See at https://oios.un.org. 67

  The OIOS Information Booklet, n 66, 2. GA Res 59/272 (2004) provides that the original versions of the reports of the OIOS not submitted to the General Assembly are, upon request, made available to any member state, unless access to a report would be inappropriate for reasons of confidentiality; the report may then be modified or withheld at the discretion of the Under-Secretary-General for the OIOS, who will provide reasons for this to the requesting party. See also Reg 5.15 of the Financial Regulations and Rules, n 1. The General Assembly has noted with concern that no mechanism has been established for the follow-up to OIOS recommendations (GA Res 59/272 (2004)), although the OIOS indicated that it was in the process of implementing a web-based audit management system From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

to facilitate the monitoring and follow-up of international audit recommendations (UN Doc A/70/318 (Part I) (2015), para 4). 68

  GA Res 74 (I) (1946). The Secretary-General has consistently rejected voluntary contributions conditioned upon the granting of audit access by the donor (see Schermers and Blokker, n 22, 715). 69

  Reg 7.1 of the Financial Regulations and Rules, n 1. The members are elected by the General Assembly for a non-renewable term of six years (Reg 7.2). 70

  Regs 7.5 and 7.6 of the Financial Regulations and Rules, n 1. Despite the Board’s independence, the ACABQ may request it to perform certain specific examinations and issue separate reports on the results (Reg 7.7). 71

  The ACABQ shall examine financial statements and audit reports and shall forward them to the Assembly with any comments it deems appropriate (Reg 7.12 of the Financial Regulations and Rules, n 1). 72

  GA Res 2150 (XXI) (1966) created the JIU on an experimental basis; it was extended under GA Res 2735A (XXV) (1970) and 2924 B (XXVII) (1972). GA Res 31/192 (1976) established the JIU as a standing subsidiary organ, with effect from 1 January 1978. Under Art 1(2) of its Statute, the JIU is responsible to the General Assembly, the competent legislative organs of those specialized agencies, and other international organizations within the UN System that have accepted its statute. 73

  Art 5(2) of the Statute of the JIU).

74

  Inspectors serve in their personal capacity and are appointed for a term of five years, renewable once (Arts 2 and 4 of the Statute of the JIU). 75

  Arts 9 and 10 of the Statute of the JIU. The JIU shall take into consideration suggestions for its programme of work, any requests of the competent organs of the organizations, and suggestions received from the executive heads of the organizations. A copy of the programme shall be sent to the Secretary-General and the ACABQ (for information purposes). 76

  Art 11 of the Statute of the JIU. Reports shall be sent to the executive head concerned, who is required to distribute the report, with or without comments, to the member states of the organization. Notes and confidential letters, however, may be used by the executive heads ‘as they may decide’. In practice the JIU has been underfunded and its reports have been of uneven quality. Such reports are sometimes disregarded in negotiations. 77

  GA Res 14 (I) (1946), Annex I; and Reg 4.2 of the Financial Regulations and Rules, n 1. In 1982, the level of the fund was set at $100 million (GA Res 36/242 (1981)); it was raised to $150 million for the 2016–17 biennium (GA Res 70/251 (2015)). 78

  Reg 4.2 of the Financial Regulations and Rules, n 1. The advances shall be carried to the credit of member states that have made such advances. See, eg, GA Res 62/240 (2007). 79

  Rule 104.1 of the Financial Regulations and Rules, n 1. The Secretary-General is usually authorized by General Assembly resolution to make advances to finance budgetary appropriations pending receipt of contributions, and these sums have to be reimbursed as soon as income is available for that purpose (Reg 4.3); to finance commitments authorized by the resolution in relation to unforeseen and extraordinary expenses, and these advances must be reimbursed through the submission of supplementary programme budget proposals (Reg 4.4). In 2015, eg, the Secretary-General was also authorized to make advances with respect to the revolving fund to finance miscellaneous self-liquidating purchases and activities, to pay advance insurance premiums, and to aid the Tax Equalization Fund (GA

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Res 68/250 (2013)). The General Assembly sometimes makes certain advances dependent on the prior concurrence of the ACABQ. 80

  In 2006, the Secretary-General’s report ‘Investing in the UN’ highlighted key challenges: the inflexible budget implementation process, the highly restricted authority of the Secretary-General to shift resources between programmes, the lack of accountability for programme performance, cumbersome financial rules, and insufficient transparency (UN Doc A/60/692 (2006), paras 72–6). Earlier reports include ‘Strengthening of the United Nations: an agenda for further change’ (UN Doc A/57/387, 9 September 2002) and ‘A Programme for Reform’ (UN Doc A/51/950 (1997)). 81

  In 1993 the Ford Foundation commissioned a report on ‘Financing an Effective United Nations’ by an independent advisory group chaired by Shijuro Ogata and Paul Volcker (UN Doc A/48/460 (1993)). See also Report of the Secretary-General, commenting on the OgataVolcker Report (UN Doc A/48/565 (1993)), and Analysis of the financial situation of the United Nations: Report of the Secretary-General (UN Doc A/48/503 (1993)). See also Mendez, ‘Financial Reform for the International Sector’ in Taylor, Daws, and AdamczickGerteis (eds), n 12, 185. The Independent Inquiry Committee (IIC) also issued several reports on the administration and management of the Oil-for-food Programme in 2004–6. The reports identified management deficiencies throughout the Secretariat, especially in procurement and audit functions (see, eg, IIC Report on the Management of the UN Oil-forfood Programme, 7 September 2005, vols III and IV, available at https://web.archive.org/ web/20061226194059/ http://www.iic-offp.org/Mgmt_Report.htm. 82

  UNEF I was established by GA Res 1000 (ES-I) (1956) and GA Res 1001 (ES-I) (1956). GA Res 1122 (XI) (1956) confirmed that the costs should be considered the ‘expenses of the Organization’ to be apportioned among the member states. A special account for UNEF I was created due to the uncertain scope and duration of the operation, the difficulty of preparing precise cost estimates in the early phase, and the provisional nature of the financial arrangement (UN Doc A/3943 (1958), para 108). Initially, the Secretary-General was authorized to spend $10 million from the Working Capital Fund, which was followed by further authorizations (GA Res 1122 (XI) (1956)). The Secretary-General submitted detailed cost estimates to the General Assembly for the first time in 1957 during the preparation of the 1958 budget (UN Doc A/3694 (1957) and UN Doc A/3823 (1958)). The same approach was followed until the force withdrew in 1967. With the establishment of ONUC in 1960, the majority of the General Assembly opted for a special account similar to that used for UNEF I (GA Res 1583 (XV) (1960)). The account remained in existence until the operation was completed in 1964. Special accounts were later created for UNEF II in 1973 (GA Res 3101 (XXVIII) (1973)), extended to the UN Disengagement Observer Force (UNDOF) in 1974 (GA Res 3211 A (XXIX) (1974)), and continued for UNDOF after UNEF II was disbanded in 1979. A special account was created for the UN Force in Lebanon (UNIFIL) in 1978 (GA Res S-8/2 (1978)). When the mandate of the forces was renewed, the General Assembly voted on appropriations to those special accounts and authorized the Secretary-General to enter into the necessary commitments. See Schmidt and Koschorreck, n 22, 306; and Woeste and Thomma, n 22, 595–6. To pay off the arrears from the UNEF I (1956–67) and ONUC (1960–4), the UN decided to issue bonds of $200 million in 1979, the repayment of and interest on which constituted an item on the regular budget. The bonds were fully amortized in 1991. $170 million of the bonds were actually sold. See GA Res 33/205 (1979) and Schermers and Blokker, n 22, 623– 4.

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83

  GA Res 1874 (S-IV) (1963), para 1. These principles were to serve as guidelines for the equitable sharing of the costs of peacekeeping operations involving ‘heavy expenditures’. These principles were: the financing of such operations is the collective responsibility of all member states; economically more developed countries are in a position to make relatively larger contributions than economically less developed countries; voluntary contributions should be encouraged; the special responsibilities of the permanent members of the Security Council should be borne in mind in connection with their contributions; and the General Assembly should give special consideration to the position of any member state that is a victim of, or otherwise involved in, the events or actions leading to a peacekeeping operation. 84

  GA Res 3101 (XXVIII) (1973). The ad hoc arrangements involved basing each member state’s rate of assessment for UNEF on its rate of assessment for the regular budget, as adjusted based on its assignment to one of four groups, A–D. Member states in groups C and D had their regular budget rates reduced by 80 and 90 per cent respectively, group B paid at the same rate, and group A, composed of permanent members of the Security Council, paid the difference pro rata to their rates of assessment for the regular budget. This ad hoc formula was applied over years, subject to some changes, for states in groups B, C, and D (see, eg, UN Doc A/70/331 (2015), para 1). See para 14.52. 85

  See, eg, GA Res 70/246 (2015). Due to the financial crisis caused by the refusal of some member states to pay their share for UNEF I and ONUC, the United Nations Peacekeeping Force in Cyprus (UNFICYP) was initially financed by voluntary contributions from 1964. Voluntary contributions consistently fell short of the required funds, leaving the special account for UNFICYP with a total deficit of approximately $200 million for the period from the inception of the force to June 1993. In its Res 831 (SC Res 831 (1993)), the Security Council decided that those costs of the UNFICYP that were not covered by voluntary contributions should be treated as expenses of the UN, effective from the next extension of the Force’s mandate on or before 15 June 1993. The UNFICYP has since been financed by assessments from a special account, although with substantial contributions from Cyprus and Greece. For the period 1 July 2015–30 June 2016, the budget was $55.13 million, including voluntary contributions of one-third from Cyprus and $6.5 million from Greece (GA Res 69/296 (2015), paras 13–14). Occasionally the dispatch of observer missions or special military units not involving armed force has been financed through the regular budget. The United Nations Truce Supervision Organization (UNTSO), the United Nations Military Observer Group in India and Pakistan (UNMOGIP), and the United Nations Good Offices Mission in Afghanistan and Pakistan (UNGOMAP) have been funded through the regular budget (see, eg, GA Res 70/249 (2015) and UN Doc A/70/7, 7 August 2015, para II.44). The United Nations Yemen Observation Mission (UNYOM) was funded in equal parts by Egypt and Saudi Arabia (SC Res 179 (1963)). The United Nations Temporary Executive Authority/United Nations Security Force in West New Guinea (UNTEA/UNSF) was funded in equal parts by Indonesia and The Netherlands (Art XXIV of the Agreement between the Republic of Indonesia and the Kingdom of The Netherlands concerning West New Guinea (West Irian), 437 UNTS 273). 86

  Reg 2.12 of the Financial Regulations and Rules, n 1. Budgets must set out the objectives, the expected accomplishments, and outputs. The Secretary-General is responsible for deciding on such objectives, accomplishments, and outputs (ibid, Rule 102.8(a)). The Under-Secretary-General for Management prescribes the timing, form, and detail of the budget estimates for peacekeeping operations, in accordance with the requirements of the General Assembly (ibid, Rule 102.8(b)).

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87

  The Controller issues guidance to the DFS, and the DFS transmits this guidance along with its own instructions to the field. The Chief of each Peacekeeping Mission prepares a budget that is reviewed by the DFS Field Budget and Finance Division, and then by the Controller and the Peacekeeping Financing Division of the Office of Programme Planning, Budget, and Accounts within the Department of Management. 88

  The ACABQ will often ask questions about the peacekeeping budgets based on the annual financial report on UN peacekeeping operations made by the Board of Auditors (in relation to the 2014–15 peacekeeping budget, see UN Doc A/70/5 (vol II) (2016) and UN Doc A/70/742 (2016)). 89

  GA Res 49/233 A (1994); Reg 2.13 of the Financial Regulations and Rules, n 1.

90

  A ‘start-up team’ is deployed as soon as feasible after the Security Council establishes the mandate. A detailed budget is then prepared on the basis of findings of a survey mission. It is prepared on an annual basis (1 July of first year to 30 June to the following year) and covers one mandate period and beyond (GA Res 49/233 (1995)). GA Res 55/231 (2000) on results-based budgeting requires peacekeeping budgets to ‘[e]nsure that the expected accomplishments and indicators of achievement are directly and clearly linked to the objectives of the programmes and in accordance with the different nature of the activities of the programmes, taking into account rules 104.7(a) [Rule 104.8(a) in the current version of the Regulations and Rules Governing Programme Planning, n 9] and 105.4(a) of the Regulations and Rules Governing Programme Planning’. GA Res 61/276 (section III) (2007) reaffirmed that the Secretary-General must ‘integrate operational, logistical and financial aspects fully in the planning phase of peacekeeping operations by linking results-based budgeting to the mandate implementation plans of peacekeeping operations’. In 2016, GA Res 70/286 (section I) (2016) also requested the Secretary-General to ‘ensure that the results-based budget framework adequately permits consideration of the progress of each mission towards achieving mandated tasks and its effective use of resources’. If the Security Council extends the mandate of a peacekeeping mission, new assessments are levied to cover the extended period. The Security Council resolution extending a mandate usually occurs just days before the expiry of the existing mandate. Performance reports are prepared for the preceding 12-month period. The preparation of a revised budget is only required if the mandate has significantly changed or a decision is made to close the mission. As with the start of a new mission, the review of the budget and performance report is undertaken by the ACABQ and the General Assembly (see Fifth Committee presentation on Peacekeeping Budgets, available at http://www.un.org/en/ga/ fifth/Presentations/67th%20session/peackeepingfinance.pdf, Slide 18. 91

  Reg 2.13 of the Financial Regulations and Rules, n 1. This is for informational purposes. For apportionment of costs for peacekeeping operations among member states, see para 14.52. 92

  GA Res 61/256 (2007) supported the restructuring of the Department of Peacekeeping Operations, including the establishment of a Department of Field Support. Subsequently GA Res 61/279 (2007) established the new department with the intention of strengthening the capacity of the organization on peacekeeping operations. Political expediency may also have been a factor in the creation of DFS, because the downgrading of the Department of Disarmament Affairs to an Office headed by a High Representative had removed one UnderSecretary-General post (see ch 15, ‘The United Nations Secretariat and Secretary-General, section 1.3, ‘Scope and extent of the Secretariat’). The creation of the DFS justified the need for another Under-Secretary-General post.

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93

  In March 2015, the DFS supported 16 peacekeeping missions and 19 special political missions, and administered 8 DFS mandated mission and support centres (DFS Mission Support, Map no 4370, Rev 14, available at http://www.un.org/en/peacekeeping/documents/ dfs_mission_supprt_map.pdf. The intention is for the Department of Peacekeeping Operations to determine the political direction of missions (UN Doc S/PV.6075 (2009), pp 7– 8). 94

  As regards the ICTY, the Security Council approved the suggestion of the SecretaryGeneral to finance the Tribunal through the regular budget (SC Res 827 (1993) and UN Doc S/25704 (1993), para 133). The General Assembly expressed concern in its Res 47/235 that the advice from the Security Council to the Secretariat did not respect the role of the Assembly under Art 17 of the UN Charter, and decided, pending a final decision, to finance the Tribunal through a separate account outside of the regular budget (GA Res 47/235 (1992), paras 3 and 6). No final decision was made changing this arrangement. As for the ICTR, the Secretary-General’s report left the decision as to the method of financing to the General Assembly (UN Doc A/C.5/49/68 (1995), para 72). The General Assembly decided that the expenses of the Tribunal would be financed through a separate special account outside the regular budget (GA Res 49/251 (1995), para 3). As an ‘ad hoc and exceptional arrangement’ the Assembly decided that member states would waive their respective shares in the credits arising from previous budgets of the UN Assistance Mission for Rwanda, and accept an equivalent increase in the assessments for a future budget period of the Assistance Mission in the same amount to be transferred to the Special Account for the ICTR (GA Res 49/251 (1995), para 5). 95

  See ch 29, ‘The International Court of Justice’, section 4.4, ‘Financial administration of the Court’. 96

  For information on the establishment and functions of the ICTY and ICTR, see ch 31, ‘Criminal Tribunals Established by, or in Relationship with, the UN’ section 1, ‘International Criminal Tribunal for the Former Yugoslavia’, and section 2, ‘The International Criminal Tribunal for Rwanda’. The completion strategies are contained in SC Res 1503 (2003) (ICTY) and SC Res 1534 (2004) (ICTR). The Tribunals present annual performance reports (see, eg, UN Doc A/70/226-S/2015/585 (2015)). 97

  The combined budget for 2014–15 amounted to approximately $267 million (GA Res 68/255 (2013) and GA Res 68/256 (2013)). This represented a significant decrease from a few years ago; the combined budget for 2008–9 amounted to about $615 million (GA Res 63/254 (2007) and 63/255 (2007)); $347.6 million for the ICTY and $267.4 for the ICTR. The 1992–93 budget of the ICTY was about $450,000 (UN Doc A/C.5/48/44 (1993)); it rose to around $156 million for 1998–99 (GA Res 53/212 (1998)). The ICTR budget for 1995 was $12.9 million (GA Res 49/251 (1995)) and $29.4 million for 1996 (it later switched to biennial budgets) (GA Res 50/213 C (1996)). As with the regular budget and peacekeeping special accounts, member states are often late in paying assessed contributions to the International Tribunals. For example, as at 30 September 2016, unpaid assessments amounted to $55 million, which was $14 million lower than the amount outstanding at the beginning of October 2015 (UN Doc A/71/440 (2016), para 19). 98

  See paras 14.49 and 14.50.

99

  GA Res 57/288 (2003), paras 10–11. See also GA Res 70/242 (2015), paras 6–7 and GA Res 70/241 (2015), paras 8–9. The financing of peacekeeping operations is discussed further in para 14.52.

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100

  Only 5 per cent of the overall budget of the Office for the Coordination of Humanitarian Affairs (OCHA—part of the UN Secretariat) came from the regular budget in 2016 (OCHA, Plan & Budget 2016, available at http://www.unocha.org/about-us/funding, pp 15–16). The OHCHR (and the Human Rights Council and human rights treaty bodies) receives about 40 per cent of its funding from the regular budget, with voluntary contributions from member states, intergovernmental organizations, foundations, and individuals making up the balance. In 2015, member states contributed 84.1 per cent of voluntary contributions (OHCHR, 2015 Annual Report, available at http://www2.ohchr.org/english/ OHCHRreport2015/index.html, pp 60–1). The UN Funds and Programmes, including the United Nations Children’s Fund (UNICEF), the United Nations Development Programme (UNDP), the UNHCR, and the World Food Programme (WFP), are financed through voluntary contributions, and in some cases also from the private sector. The UN specialized agencies, including the Food and Agriculture Organization (FAO), the International Labour Organization (ILO), the United Nations Educational, Scientific and Cultural Organization (UNESCO), and the World Health Organization (WHO), are funded through a mixture of assessments and voluntary contributions, except for the International Monetary Fund (IMF) and the World Bank, which are funded and governed outside of the UN System. The largest share of voluntary contributions was traditionally received by UN Programmes for food (WFP), children (UNICEF), refugees (UNHCR), and development (UNDP) (Laurenti, n 44, 694). 101

  In 2015, system-wide (including specialized agencies and Funds and Programmes), 53 per cent of funding came from earmarked voluntary contributions and 9.4 per cent from unearmarked voluntary contributions (excluding assessed UN peacekeeping costs), while 30 per cent came from assessed contributions to the regular budget (UN Doc A/71/583 (2016), Table 2). In terms of expenditure, in 2015, $14.5 billion came from the regular budget (including peacekeeping), $30 billion from voluntary contributions (specified and nonspecified), and $3.5 billion from revenue from other activities (ibid). 102

  Reg 3.12 of the Financial Regulations and Rules, n 1. Contributions that directly or indirectly involve additional financial liability for the UN require the consent of the ‘appropriate authority’, which is specified as the General Assembly in Rule 103.4(b). In cases other than those approved by the General Assembly, the receipt of any voluntary contribution to be administered by the UN requires the approval of the Under-SecretaryGeneral for Management (Rules 103.4(a) and 103.4(b)). 103

  In 2015, the entire UN system received approximately $17.3 billion in extra-budgetary resources (ie voluntary contributions, specified) from member states, including trust funds, technical cooperation, and all other non-regular resources (UN Doc A/71/583 (2016), Tables 2 and 2B). 104

  In 2015, around $8.1 billion in extra-budgetary resources was received from non-state contributors. These include the European Commission, UN system organizations, the World Bank, IMF, other international organizations, non-governmental organizations (NGOs), foundations, and private companies (ibid, Table 2B). Switzerland made considerable contributions to many UN Programmes before it became a member state in 2002. 105

  From 2002–3, 36 per cent of voluntary contributions came from the US, 9 per cent from the UK, 8 per cent from Japan, 6 per cent from The Netherlands, 6 per cent from Norway, 5 per cent from Sweden, 3 per cent from Italy, 3 per cent from Germany, 1 per cent from France, 1 per cent from Spain, 7 per cent from the rest of the EU, less than 1 per cent from China, and 15 per cent from the rest of the world (Laurenti, n 44, 695). In 2015, the US’s specified voluntary contributions represented approximately 22 per cent of all specified voluntary contributions received, while the European Commission’s contribution alone represented around 56.7 per cent of all specified voluntary contributions. China’s voluntary

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contributions remained at less than 1 per cent (UN Doc A/71/583 (2016), Tables 2, 2A, and 2B). Some countries make strategic funding choices. For example, Japan provided the UNHCR with 16 per cent of its budget when Sadako Ogata was High Commissioner, falling to 11 per cent after her retirement; it also became the lead voluntary contributor to UNESCO after Kenichi Matsuura was made Director-General (Laurenti, n 44, 696). One risk, especially as regards development or humanitarian assistance, is that the assistance becomes identifiable with one particular donor and is no longer considered UN assistance. The UN Legal Counsel recommended in 1995 that the principle of multilateralism should underlie such assistance, and relevant goods and materials should not be identified with the donor state’s flag or the words ‘donated by…’. Instead the sources of the goods and materials should be recognized in reports by the Secretary-General, press releases, etc. ([1995] UN Juridical YB 475–6). 106

  Joint Inspection Unit, ‘Voluntary Contributions in United Nations System Organizations’ (UN Doc JIU/REP/2007/1, para 32). Analysis of voluntary contributions in 2015 shows that most contributions are specified (UN Doc A/71/583, 28 October 2016, Tables 2, 2A, and 2B). A policy statement adopted by the High-Level Committee on Management on behalf of the Chief Executives Board (CEB) recommends that organizations of the system forgo voluntary contributions to which conditions affecting procurement and staff recruitment are attached. Exceptions are to be granted by executive heads only when circumstances warrant, and are to be kept to a strict minimum (UN Doc CEB/2004/HLCM/ R.3 (2004); UN Doc E/2005/63 (2005), p 23). 107

  UN Doc A/60/83-E/2005/72 (2005), para 40.

108

  Reg 3.13 of the Financial Regulations and Rules, n 1. There is no agreed definition of ‘trust fund’ within the UN system. The Secretariat defines it as ‘accounts established with specific terms of reference or under specific agreements to record receipts and expenditures of voluntary contributions for the purpose of financing wholly or in part the cost of activities consistent with the organization’s aims and policies’ (UN Doc ST/SGB/188, Annex (1982), para 2). Cf UNESCO’s definition in its Administrative Manual, 16 November 2009 (updated 1 June 2011), available at http://www.unesco.org/eri/docs/ UNESCO_Administrative_Manual.pdf, Item 5.1, para 2.5. 109

  See para 14.02. As at December 2013, the Board of Auditors estimated that there were 171 general trust funds (UN Doc A/69/5 (vol I) (2014), Note 7, p 175). The JIU, however, stated just a few years before (ie in the 2008–9 biennium) that the UN had about 450 trust funds (UN Doc JIU/REP/2010/7 (2010), p 8). The difference may be explained by the Board of Auditors’ distinguishing between the general trust funds and those relating to technical cooperation activities (see, eg, UN Doc A/67/5 (vol I) (2012), para 82). 110

  The major source of funding for trust funds (61 per cent for the UN system in 2008–9) comes from member states (UN Doc JIU/REP/2010/7 (2010), para 16). 111

  Regs 4.13 and 4.14 of the Financial Regulations and Rules, n 1. Nonetheless, the General Assembly can provide that a certain fund or account shall not be administered in accordance with the Regulations (Reg 4.14). The General Assembly may also establish trust funds or special accounts in respect of specific activities entrusted to the organization (Rule 104.3). The Under-Secretary-General for Management must approve the establishment, purpose, and limits of trust funds or special accounts set up by the Secretary-General (Rule 104.3). The purpose and limits of trust funds are contained in individual Terms of Reference.

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112

  UN Doc ST/SGB/188 (1982), para 26. The making of a pledge and its acceptance must be recorded in an exchange of letters or a more formal agreement (UN Doc ST/SGB/188 (1982), para 29). 113

  UN Doc ST/SGB/188 (1982), paras 34–5. The implementing office is responsible for coordinating all aspects of the work programme to be financed from the trust fund in question. 114

  General trust funds are established to support activities to enhance or expand the work programme of one or more organizational units of the Secretariat, or for humanitarian relief purposes to provide direct assistance in respect of emergency situations. Technical cooperation trust funds, on the other hand, provide economic and social development assistance to developing countries (UN Doc ST/SGB/188 (1982), paras 12–15; and UN Doc A/69/5 (vol I) (2014), p 95). 115

  Some trust funds include the Trust for Staff Health Promotion, the Trust Fund to Assist Developing States in the Preparation of Submissions to the Commission on the Limits of the Continental Shelf, the Trust Fund for Ageing, the Trust Fund for Expanding Public Information Activities in Japan, the Trust Fund for German Language Translation, the Trust Fund for the United Nations Reform, and the Trust Fund for the International Year of Sport and Physical Education 2005 (UN Doc A/69/5 (vol I) (2014), sch 7.1, pp 123–9). 116

  Rule 104.3 of the Financial Regulations and Rules, n 1. When the Ted Turner Fund wished to establish a trust fund on anti-slavery activities, it pointed to General Assembly resolutions on this topic and proved that there was no existing trust fund that was undertaking the same work. In practice, the Controller will not accept trust fund conditions that conflict with the Financial Regulations and Rules (eg tying the provision of money to the hiring of nationals, or to procurement from national companies). 117

  The latest list of 171 general trust funds appears in UN Doc A/69/5 (vol I) (2014), pp 123–9, but this does not include technical cooperation funds and ‘other’ funds. The Secretary-General’s Report on ‘Investing in the UN’ in 2006 referred to 150 separate trust funds and 37 individual peacekeeping special accounts, each with its own support arrangements and costs (UN Doc A/60/692 (2006), para 77). The JIU estimated in 2010 that the UN had 450 trust funds in the 2008–9 biennium (UN Doc JUI/REP/2010/7 (2010), p 8). The fact that there is no generally accepted terminology for trust funds in the UN system organizations makes it difficult to be accurate (UN Doc JIU/REP/2010/7 (2010), p 2). 118

  Accountability is fragmented, with individual funds accounted for to their donors, not to the UN: UN Doc ST/SGB/188 (1982) (not updated since 1982)), which provides that reports by the implementing office will be made ‘as required, in the interest of effective management, evaluation and control’ (ibid, para 42). Only a small percentage of trust funds comprise private-sector money. The vast majority of trust funds consist of money from member states and are subject to national requirements as to oversight. These vary enormously. For example, the US has detailed requirements, while Sweden does not set many requirements. 119

  The Board of Auditors and the Internal Audit Division are responsible for auditing UN trust funds (UN Doc ST/SGB/188, 1 March 1982, para 43; Financial Regulations and Rules, n 1, Annex, para 1)). Donor requests for audits are generally refused, but sometimes a special audit by external auditors on a cost reimbursement basis is allowed. For trust funds financed by the EU, standard internal and external audit coverage may be complemented with the EU verification mission under the EC/UN financial and administrative framework agreement (FAFA) (JIU/REP/2010/7 (2010), p 26).

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120

  An OIOS report on Peacekeeping Trust Funds in 2003 found that of 31 general trust funds, eight were inactive since the original implementing office had closed, and the original purposes of three further trust funds were no longer valid. Moreover, there was no formal statement of the policies and procedures to be used for administering the trust funds (UN Doc A/58/613 (2003)). There has been at least one case of fake NGOs receiving grants from a trust fund (UN Doc A/63/5 (vol II) (2008), para 373). See also UN Doc A/69/5 (vol I) (2014), paras 116–20, where investigations had revealed that at least $3.3 million of the OCHA’s funds were fraudulently claimed or unsubstantiated in 2012–13. 121

  For example, in 2009, the G-77 proposed oversight of extra-budgetary funding that would match the oversight of the regular budget. This proposal did not garner sufficient support. The High-Level Panel on United Nations System-Wide Coherence in the areas of development, humanitarian assistance and the environment observed: ‘The exponential growth of extrabudgetary (non-core) versus core resources has encouraged supply-driven rather than demand-driven approaches to assistance, undermining the principle of country ownership. Lack of donor coordination and competition for non-core resources among United Nations agencies squander significant time and effort on fund-raising, undermining the ability of the United Nations to make long-term strategic decisions that would deliver more effective results’ (UN Doc A/61/583 (2006), p 19). One option would be to subsume the numerous specific trust funds into fewer thematic trust funds. This approach has been taken by the UN Population Fund (UNFPA) and UNICEF (UN Doc JIU/REP/2010/7 (2010), p 8). Thematic clustering meets with resistance from donors, who want recognition for their contributions reflected in the specific title of the trust fund. Since trust funds represent money that probably would not otherwise be coming to the UN, there is resistance to reform. 122

  UN Doc JIU/REP/2010/7 (2010), pp 17–21.

123

  The UN charges a standard percentage to cover programme support costs, but a lower rate may be negotiated (UN Doc ST/SGB/188 (1982)), para 47; see also UN Doc A/70/5 (vol I) (2015), ch V, para 86). The rate for the UN Secretariat and specialized agencies in 2011 was 13 per cent, while the UN Funds and Programmes generally applied the rate of 7 per cent (UN Doc A/66/348 (2011), para 54). Each Fund may apply different rates, depending on the agreement type (see eg UN Doc A/71/5/Add 8 (2016), Note 2(xv), pp 78–9). 124

  In 1997, Ted Turner announced a $1 billion pledge to support UN causes, and set up the UN Foundation to administer the gift. Within the $1.028 billion, a total of $593 million has been donated by co-financing partners to the UN Foundation. The funds are designated for projects focused on children’s health; women and population; environment; and peace, security, and human rights (UN Doc SG/SM/6333 (1997) and UN Doc A/52/7/Add 9 (1998), p 2). 125

  The Board is to provide broad policy guidance to the Secretary-General and monitor operations and activities of UNFIP to advise the Secretary-General on the review of project proposals, and to contribute to identifying projects. The Members of the Advisory Board are appointed by the Secretary-General and serve for a term of two years following their appointment (UNFIP, UN Doc A/71/159 (2016), paras 1–4). 126

  It was established in 2005 by Secretary-General Kofi Annan at the African Union Summit (see UN Democracy Fund at http://www.un.org/democracyfund/about-undef; see also GA Res 60/1 (2005), paras 135–7 and UN Doc A/71/159 (2016), paras 54–6). The cumulative total amount of contributions received from 2005 to 2015 exceeded $169 (UN Doc A/71/159 (2016), para 61).

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127

  The terms of reference provide that the UNDEF will provide assistance for projects that build and strengthen democratic institutions, and promote human rights, and for initiatives that are intended to ensure the full participation of all groups in the democratic process (UN Democracy Fund website, n 126). 128

  The Board has 18 members, including representatives of the seven largest donor states (ibid; see also UN Doc A/71/159 (2016), p 26 for the Advisory Board’s composition in 2015). 129

  UN Doc A/44/PV.43 (1989), Item 13.

130

  Revised Terms of Reference (UN Doc A/59/372 (2004), Annex, paras 3 and 6). The original Terms of Reference were concluded in 1992 (UN Doc A/47/444 (1992), Annex). 131

  UN Doc A/59/372 (2004), Annex, para 17.

132

  ibid, Annex, para 7. As of June 2016, the Fund contained $3.2 million (UN Doc A/71/339 (2016), para 7). 133

  From 1989 to 1992, the Fund received $583,705 from 34 states (UN Doc A/47/444 (1993), p 3). Only Switzerland and Finland made contributions from July 2015 to June 2016, amounting to $25,933 (UN Doc A/71/339 (2016), para 6). This is despite numerous appeals from the Secretary-General (UN Doc A/71/339 (2016), para 8) and multilateral statements calling for states to submit their disputes to the ICJ for resolution (GA Res 60/1 (2005), paras 73 and 134). 134

  See, eg, the statements by various delegations in UN Doc A/61/PV.41 (2006) and UN Doc A/70/PV.47 (2015). 135

  UN Doc A/59/372 (2004), Annex, paras 6 and 8. The state must be a member state of the UN, any other state party to the Statute of the ICJ, or state not party to the Statute having complied with Art 35(2) of the Statute. The original Terms of Reference limited the categories of cases to those submitted by special agreement (UN Doc A/47/444 (1992), Annex, para 8; see also Bekker, ‘International Legal Aid in Practice: The ICJ Trust Fund’ (1993) 87 AJIL 659, at 663). The Revised Terms of Reference expand eligible cases to include not just those submitted under Art 40(1) of the Statute (special agreement), but also those submitted on the basis of Art 36(1) and (2) of the Statute, as well as the execution of any judgment (UN Doc A/59/372 (2004), Annex, para 6). Cases submitted under Art 36(1) and (2) must be at the merits stage because the requesting state has made such an undertaking to the Secretary-General or preliminary objections have been rejected by the ICJ, or they have been definitely withdrawn (UN Doc A/59/372 (2004), para 6(a)(ii)). Applications must be accompanied by copies of certain documents, an itemized statement of the estimated costs for which assistance is requested, an undertaking by the requesting state to supply a final statement giving details of the expenditures made from the approved amount, certified by an auditor approved by the UN, and an undertaking to refund any unused advance (UN Doc A/59/372 (2004), Annex, para 8). 136

  UN Doc A/59/372 (2004), Annex, para 9. The Secretary-General will select a threemember Panel of Experts of ‘persons of the highest judicial and moral standing’. The Panel makes a recommendation to the Secretary-General on the amount of financial assistance and the types of expenses for which it may be used. The Panel is guided solely by the financial needs of the requesting state and the availability of funds (ibid, Annex, para 11). The Secretary-General makes the ultimate determination as to the provision of financial assistance (ibid, Annex, para 13). 137

  ibid, Annex, para 13. The original Terms of Reference only provided for reimbursements for actual expenses incurred (UN Doc, A/47/444 (1992), Annex, para 13). The Revised Terms of Reference include provision for an advance up to 50 per cent of the awarded financial assistance (UN Doc A/59/372 (2004), Annex, para 13). The final payment is made against receipts proving actual expenditure. The requesting state shall not receive From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

the final portion of the assistance and shall be liable to reimburse the advance if the final payment is not claimed within two years of the date of judgment (where financial assistance was for the submission of the dispute), or within five years of the date of judgment (where assistance was for execution of that judgment) (UN Doc A/59/372 (2004), Annex, para 14). 138

  From 1989 to 2016, nine states benefited from the Fund’s financial assistance. These include Burkina Faso and Niger (2013, reported in UN Doc 69/337 (2014), para 4), Djibouti (2007, reported in UN Doc A/63/229 (2008), para 4), Benin and Niger (2004, reported in UN Doc A/59/372 (2004), para 4), two unnamed developing countries (1997, reported in UN Doc A/56/456 (2001), para 5), and two unnamed developing countries (1991, reported in UN Doc A/56/456 (2001), para 4). States may be under the erroneous impression that the Fund is still limited to cases brought by special agreement, as it was originally. It may also be that the relatively small amounts disbursed by the Fund do not provide sufficient motivation for states to undertake the application process, given the significant costs of litigation. 139

  The land on which the UN Headquarters was built was donated by the Rockefeller family (accepted in GA Res 100 (I) (1946)). The construction of the Peace Palace in The Hague, which houses the ICJ, was financed by $1.5 million from Andrew Carnegie, who envisaged a world peace centre with a legal library that would meet the highest possible standards. The Carnegie Foundation was established in 1904 to manage the funds and the preparations for the Peace Palace’s construction; it is still the Carnegie Foundation that is the owner and manager of the grounds and buildings at the Peace Palace (Peace Palace, available at https://www.vredespaleis.nl/building/history/?lang=en). 140

  See para 14.37.

141

  Rule 103.4(c) of the Financial Regulations and Rules, n 1.

142

  Rule 103.4 of the Financial Regulations and Rules, n 1. Gifts must be consistent with the policies, aims, and activities of the organization, and any gift that directly or indirectly involves additional financial liability requires the consent of the General Assembly (Reg 3.12 of the Financial Regulations and Rules, n 1). 143

  Staff assessment is not a withholding tax and cannot be reimbursed to staff members or claimed as a deduction. At the time the UN was created, staff members were paid net salaries because, as international civil servants, they were considered immune from national taxation. When the US refused to grant American staff members exemption from national taxation, the UN decided to increase the salaries of its personnel and to impose a staff assessment to resolve the problem of unequal treatment of American UN staff members and staff members of other nationalities (GA Res 239 (III) (1948)). See also Christiaanse, De inkomstenbelastingvrijstelling voor de internationale ambtenaren (1960), 78–84; and Schermers and Blokker, n 22, 686. The staff assessment applies to staff members in professional and higher categories, and senior appointments (Reg 3.3 and Annex I of the Staff Rule and Staff Regulations of the UN (UN Doc ST/SGB/2016/1 (2016)). Most member states have granted UN staff exemption from national income taxation on their UN emoluments. In the case of the few member states that do tax the emoluments of their nationals, the UN reimburses the income tax to the staff member (Reg 3.3 and Annex I of the Staff Rule and Staff Regulations of the UN). 144

  Staff assessment rates are derived from income tax rates applicable at the eight headquarters cities of the organizations in the common system (Geneva, London, Madrid, Montreal, New York, Paris, Rome, and Vienna) (Office of Human Resources Management,

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Salaries and Post Adjustment, at http://www.un.org/Depts/OHRM/salaries_allowances/ salary.htm; see also UN Doc A/71/30 (2016), p 6). 145

  The income from staff assessment is estimated at $486.4 million for 2016–17 (GA Res 70/249 B (2015)), and amounted to $513.3 million for 2014–15 (GA Res 70/240 B (2015)). 146

  All revenue from staff assessment not otherwise disposed of by specific resolution of the General Assembly is credited to the Tax Equalization Fund established by GA Res 973 A (X) (1955). The Fund is used to refund UN staff members for income taxes levied by member states in respect of their UN remuneration. Member states are given credit in the Fund according to the scale of assessments for the regular budget applicable to the relevant financial year (Regs 4.10–4.12 of the Financial Regulations and Rules, n 1). 147

  This general income is estimated at $41.2 million in 2016–17 (GA Res 70/249 B (2015)), and amounted to $66.9 million in 2014–15 (GA Res 70/240 B (2015)). With regard to rental of premises, some specialized agencies and entities connected with the UN pay rent for the occupancy of UN premises in New York, Geneva, Nairobi, Addis Ababa, Bangkok, and Santiago (UN Doc A/70/6 (Income s 2) (2015), Section A, pp 2–3). As for reimbursement for services provided to specialized agencies and others, this relates to the use of conferences services, building management, language training, visa services, and document reproduction services (UN Doc A/70/6 (Income s 2) (2015), Section B, p 3). With respect to contributions of non-member states, such states contribute towards the activities they participate in at a rate determined by the General Assembly (Reg 3.9 of the Financial Regulations and Rules, n 1; GA Res 44/197 B (1989)). The Holy See and Palestine were the only non-member states in this category in 2016 (UN Doc ST/ADM/SER.B/933 (2015)). 148

  The net revenue in respect of services to the public is estimated at $1.1 million for 2016–17, compared to the net deficit of around $5 million in 2014–15. The projected increase is partly attributable to increases under philatelic operations, sales of publications, services to visitors, Department of Economic and Social Affairs revenue services, sale of gift items, catering and other commercial activities, partially offset by a decrease under garage operations (UN Doc A/70/6 (Income s 3) (2015), para IS3.5). By contrast, UNICEF receives a significant amount of income from private fundraising and partnerships, which in 2015 amounted to $97 million (UNICEF Annual Report 2015, available at https://www.unicef.org/publications/files/UNICEF_Annual_Report_2015_En.pdf, p 6). For example, its Change for Good programme, a partnership between UNICEF and the international airline industry established in 1987, in 2008 raised $8 million (UNICEF Annual Report 2008, available at https://www.unicef.org/publications/files/ UNICEF_Annual_Report_2008_EN_072709.pdf, p 29), Further, in 2008, UNICEF raised $42 million from the sale of UNICEF cards and gifts (UN Doc E/ICEF/2009/AB/L.2 (2009)). 149

  Reg 3.1 of the Financial Regulations and Rules, n 1. Pending the receipt of contributions, appropriations under the regular budget may be financed from the Working Capital Fund (see para 14.25). See also Reg 3.2 of the Financial Regulations and Rules, n 1. 150

  For the regular budget, see paras 14.02 and 14.03. In Certain Expenses of the United Nations ICJ Rep 1962, the Advisory Opinion held that the expenses authorized for UNEF and ONUC constituted expenses of the organization for the purposes of Art 17(2) of the Charter; the General Assembly accepted the Opinion 76:17 with 8 abstentions (GA Res 1854 (XVII) (1962) (see also para 14.52). But see the compromise accepted by the General Assembly regarding Art 19, whereby the question of that Article’s applicability would not be raised with regard to peacekeeping operations (UN Doc A/PV.1330 (1965); UN Doc A/5916 and Add.1 (1965); and UN Doc A/PV.1331 (1965)).

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151

  Certain Expenses of the United Nations ICJ Rep 1962, p 151 at 157, 167–9. If an expense relates to the implementation of one of the UN’s objectives, it is of no legal significance whether the General Assembly chooses to include the item under the regular budget, or in a special account or trust fund. Even if the decision to incur the expense is made by the wrong organ or involves procedural irregularities, this does not necessarily invalidate the expense as being ‘an expense of the Organization’ (Woeste and Thomma, n 22, 605). 152

  Rule 158 of the Rules of Procedure of the General Assembly, n 16. GA Res 2390 (XXIII) (1968) increased the membership of the Committee on Contributions from 10 to 12; GA Res 2913 (XXVII) (1972) increased the membership from 12 to 13; GA Res 31/95 (1976) increased the membership from 13 to 18. 153

  Rule 159 of the Rules of Procedure of the General Assembly, n 16. Members retire by rotation and are eligible for reappointment. The General Assembly appoints members at the regular session immediately preceding the expiration of the term of office of the members, or, in the case of vacancies, at the next session (UN Doc A/520/Rev.18 (2016)). GA Res 33/12 (1978) amended Rule 159, so that the members of the Committee on Contributions would serve for a period of three years corresponding to ‘three calendar years’ rather than ‘three financial years, as defined in the Financial Regulations of the United Nations’. 154

  Rule 160 of the Rules of Procedure of the General Assembly, n 16.

155

  ibid.

156

  GA Res 14 A(I) (1946), GA Res 39/247 B (1985), and GA Res 70/245 (2015). To some extent, using the principle of the capacity to pay conflicts with the sovereign equality of states, reflected in the full parity in voting rights in the General Assembly (Schermers and Blokker, n 22, 634; and Woeste and Thomma, n 22, 599). 157

  The scale uses national income data for base periods of three and six years, which are provided by the UN Statistics Division (UN Doc A/71/11 (2016), Annex I). The decision to use comparative estimates of national income was made at the outset of the UN in 1946 (UN Doc PC/20 (1945), p 108 and GA Res 14 A(I) (1946), para 3). The scale of assessment used by the UN is a model for other international organizations, such as the ILO, FAO, WHO, UNESCO, the United Nations Industrial Development Organization (UNIDO) and the International Atomic Energy Agency (IAEA), and the International Criminal Court (ICC). 158

  In 1946, the General Assembly set a minimum assessment rate of 0.049 per cent (GA Res 14 A(I) (1946)). In 1973, this was reduced to 0.02 per cent (GA Res 2961 (XXVII) D (1972)). In 1977 the floor was lowered to 0.01 per cent (GA Res 31/95 A (1976)). It was reduced again in 1998 to 0.001 per cent (GA Res 52/215 A (1997)). In 2016, this amounted to an assessment of $24,932 for the regular budget in 2016 (UN Doc A/71/11 (2016), para 58). The maximum rate or ceiling has long been a factor of the relationship between the US and the UN. In 1946, the actual share of the regular budget to be paid by the US based on capacity to pay was 49.89 per cent (1946–7 UNYB 217–18); after protests from the US that this was too high, the US rate was lowered for 1946 and 1947 to 39.89 per cent (Schermers and Blokker, n 22, 645). The principle of a maximum rate was established in 1948 when the General Assembly recognized that ‘in normal times’, no member should pay more than onethird of the annual expenses (GA Res 238 (III) A (1948), preamble (a)). After 1954, the US paid less than one-third of the regular budget, and in 1957 the Assembly decided that the ceiling should not exceed 30 per cent (GA Res 1137 (XII) (1957), para 1). In 1972, the US Congress passed an Act providing that after 1973 no contribution to the UN would be made in excess of 25 per cent of the total assessment (Department of State, Justice, and Commerce, the Judiciary and Related Agencies Appropriation Act 1973, Pub L 92–544, 84 Stat 1100; see also 1972 UNYB 712–13). In response, the Assembly lowered the ceiling to

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25 per cent (GA Res 2961 B (XXVII) (1972), para a); the resolution did not lead to an increase in the rate for other member states due to the admission that year of the two German states that assumed 8.32 per cent (GA Res 3062 (XXVIII) (1973), para d). In 2000, following further requests from the US, the ceiling was lowered to 22 per cent (GA Res 55/5 B (2000), para 1(h)). The maximum rate for least developed countries is 0.01 per cent (UN Doc A/71/11 (2016), para 60). In 1948, the General Assembly decided that ‘in normal times’ the per capita contribution of any member should not exceed the per capita contribution of the member with the highest rate of assessment (GA Res 238(III) A (1948), para b). This was abolished in 1974 (with effect from 1977) due to, among other things, the devaluation of the US dollar (GA Res 3228 (XXIX) (1974), UN Doc A/9611 (1974), paras 7–14). 159

  Rule 160 of the Rules of Procedure of the General Assembly. Significant revisions were made in 2000 (GA Res 55/5 B (2000)), and during reviews in 2006, 2009, 2012, and 2015 the Committee on Contributions essentially decided to maintain its methodology (UN Doc A/ 71/11 (2016), para 8). The League of Nations had a very inflexible scale of assessment. The original text of the League Covenant referred to the distribution of expenses of the Universal Postal Union, which the League had no ability to amend. In 1921, Art 6 of the Covenant was amended by the League Assembly to provide that expenses ‘shall be borne by Members of the League in the proportion decided by the Assembly’. After 1924, the League was able to apportion expenses itself, but only by unanimous decision (Schermers and Blokker, n 22, 641–2). This experience led the drafters of the UN Charter to allow revision of the scales of assessment by majority vote. 160

  Regulation 3.8 of the Financial Regulations and Rules, n 1. The rate is determined by the General Assembly. It was originally to be one-third of the annual contribution (GA Res 69 (I) (1946), para 4), and was later reduced to one-ninth (GA Res 3371 (XXX) (1975), para b and 46/221 A (1991), para 2(b)). In 1992–93, the influx of new member states led to the decision that they pay one-twelfth of their annual contribution for each month of membership during the year of admission (GA Res 48/223 A (1993), para 2). While Namibia was represented by the UN Council for Namibia, the General Assembly recommended that specialized agencies admit Namibia as a full member but waive the assessment (GA Res 31/153 (1976); GA Res 32/9 E (1977) and GA Res 34/92 C (1979)). Since the UN Council for Namibia had no effective powers in the country, it had no capacity to pay from Namibian funds (Schermers and Blokker, n 22, 636). 161

  Regulation 3.9 of the Financial Regulations and Rules, n 1. The General Assembly (in reality, the Under-Secretary-General for Management under Rule 103.2 of the Financial Regulations and Rules, n 1) determines the rate and may even exempt the state from contributing to organs or conferences in which it participated. Contributions from nonMember States are considered miscellaneous income. For the question of what constitutes participation, see [1986] UN Juridical YB 280–1. 162

  When former Soviet Republics were admitted to the UN, their rate of assessment was determined by a redistribution of the combined rates of Belarus, Ukraine (which were original members of the UN) and the former Soviet Union (UN Doc A/47/11 (1992), paras 58–9). The same method was used to determine the rates of assessment for Bosnia and Herzegovina, Croatia and Slovenia (UN Doc A/47/11 (1992), paras 63–5) and the Czech Republic and the Slovak Republic (UN Doc A/48/11 (1993), paras 77–83). This meant that no adjustments had to made to the rates of other UN member states. The rates for the former Soviet Republics were criticized by the states concerned, claiming that these did not correspond to their capacity to pay (UN Doc A/48/11 (1993), paras 6–30) and by the UN Legal Counsel who argued that the treatment of Belarus and Ukraine as new members had drastically increased their rate of assessment in a manner inconsistent with GA Res 46/221 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

and Rule 160 of the Rules of Procedure of the General Assembly ([1992] UN Juridical YB 435–8). See also Schermers and Blokker, n 22, 635. 163

  The Capital Master Plan is discussed in section 6.9.

164

  The scale used is that for the regular budget as modified by GA Res 55/235 (2000) and GA Res 55/236 (2000). 165

  GA Res 55/235 (2000), para1(a). At the time of the establishment of UNEF I and ONUC, a number of states, including the USSR and other Socialist countries, as well as France, argued that the procedure in Art 17(2) of the UN Charter applied only to ‘administrative’ or ‘regular’ expenses of the UN and not to peacekeeping operations. Those member states refused to contribute to the costs of UNEF I and ONUC, leading to a financial crisis. In 1961, the General Assembly set up the Working Group of Fifteen on the Examination of the Administrative and Budgetary Procedures of the UN (GA Res 1620 (XV) (1961)), but it was not able to identify methods for covering the costs of peacekeeping operations. The General Assembly asked the ICJ for an Advisory Opinion on whether the expenditures authorized by the General Assembly resolutions relating to ONUC and UNEF I constituted ‘expenses of the Organization’ within the meaning of Art 17(2) of the UN Charter (GA Res 1731 (XVI) (1961)). The Court answered in the affirmative (Certain Expenses of the United Nations (Advisory Opinion) ICJ Rep 1962, p 151 at 179–80). According to the ICJ, there were no limitations on the power of the General Assembly to apportion expenses relating to the maintenance of peace and security in the Charter provisions delineating the authority between the Assembly and the Security Council. Arts 11(2), 14, 24 and 35 could not be construed as giving the Security Council the sole responsibility for the maintenance of peace and security. Even for actions under Chapter VII, such as enforcement measures pursuant to Art 43 (which was not invoked in respect of UNEF I and ONUC), the expenses were to be apportioned by the General Assembly under Art 17 (ibid, at 162–6). The General Assembly accepted the Opinion by a vote of 76:17 with 8 abstentions (GA Res 1854 (XVII) (1962)). The enlarged Working Group on the Examination of Administrative and Budgetary Procedures of the UN could not reach an agreement (GA Res 1854 B (XVII) (1962) and UN Doc A/5407 (1963)). Certain member states insisted on the illegality of the assessments for peacekeeping operations and refused to pay contributions (see paras 14.60–14.62). See Woeste and Thomma, n 22, 602–3. 166

  See para 14.49. See also Reg 3.11 of the Financial Regulations and Rules, n 1. Letters of assessment corresponding to the mandate period are sent to member states after the General Assembly approves the appropriation. 167

  Four groupings, for the purposes of assessing peacekeeping contributions, had been used since 1973 (GA Res 3101 (XXVIII) (1973)). The General Assembly, in GA Res 55/235 (2000), established 10 levels of contribution labelled A–J, with A being the permanent members of the Security Council, which have the highest contribution based on their regular budget rate. Level B is all member states, except those specified in C–J. It essentially consists of all developed states, or those that are members of the Organisation for Economic Co-operation and Development (OECD). Levels D–J are set according to the average per capita gross national product during a six-year period (see, eg, UN Doc A/ 70/331, 19 August 2015, para 3). The share is based on regular budget contributions, but with a discount applied for peacekeeping from 20 per cent for Level D to 90 per cent for Level J (least developed countries). Level C is an artificial category that does not reflect data on gross national product (GNP). It is designed to prevent certain states entering Level B, and it generates significant controversy. For 2016–18, the following states are in Level C: Brunei Darussalam, Kuwait, Qatar, Singapore, and the United Arab Emirates (UN Doc A/ 70/331/Add.1 (2015), Annex). The General Assembly requested the Secretary-General to update the composition of the levels on a triennial basis, in conjunction with the reviews of the scale of assessments for the regular budget (GA Res 55/235 (2000)). The composition of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

levels of contribution for peacekeeping operations was last updated in 2015 for the period 2016 to 2018, as contained in the addendum to the report of the Secretary-General (UN Doc A/70/331/Add.1 (2015), Annex) and adopted by the General Assembly in GA Res 70/246 (2015). The top 10 providers of assessed contributions to UN peacekeeping operations for 2016 were: US (28.57 per cent), China (10.29 per cent), Japan (9.68 per cent), Germany (6.39 per cent), France (6.31 per cent), UK (5.80 per cent), Russian Federation (4.01 per cent), Italy (3.75 per cent), Canada (2.92 per cent), and Spain (2.44 per cent) (UN Peacekeeping Website, at http://www.un.org/en/peacekeeping/operations/financing.shtml). 168

  GA Res 55/235 (2000), paras 1(d) and 5.

169

  In 2001, Estonia and Israel decided to be reclassified at higher levels. At any time during the scale period, a member state may make a voluntary commitment to contribute at a rate higher than its current rate by informing the General Assembly through the Secretary-General, and the Assembly may take note of that decision (GA Res 55/236 (2000)). In updating the composition of levels, the practice has been to include those member states at their voluntarily established levels, unless their revised levels would be higher or they indicate they wish to revert to a lower level for which they are eligible. For example, during the 2006 update of the composition of levels, the Philippines requested to be allowed to return to level I from its current level H, in keeping with the principle of capacity to pay (UN Doc A/61/139 (2006), Annex III). The updated composition of levels reflected this request. 170

  United Nations Peacekeeping, ‘Financing Peacekeeping’, at http://www.un.org/en/ peacekeeping/operations/financing.shtml#gadocs2. See also GA Res 45/258 (1991), in which the General Assembly invited states to ‘make voluntary contributions to the United Nations peace-keeping operations both in cash and in the form of services and supplies’. 171

  This is only done on an exceptional basis. and reflects an ideological divide between the like-minded countries and the G-77. For example, in September 2016, the G-77 said that ‘no member of the Group of 77 and China that is not a permanent member of the Security Council, should therefore be categorized above level C’ (G-77, 2016 Ministerial Declaration, September 2016, available at http://www.g77.org/doc/Declaration2016.htm, para 133). The Bahamas and Bahrain were treated as being in level C instead of level B for the purposes of the peacekeeping scale for the period 2010–12 (UN Doc A/64/PV.68 (2009), p 11). Similarly, for the period 2016–18, Bahamas, Bahrain, and Oman were afforded a 7.5 per cent discount, and Saudi Arabia was offered a 7.5 per cent discount in 2018 (UN Doc A/70/PV.82 (2015), p 16)). 172

  GA Res 45/258 (1991) established the support account for peacekeeping operations, effective 1 January 1990. It became operational on 1 May 1990 through the incorporation of resources relating to the overload posts that were funded from the separate budgets of the five peacekeeping operations that were financed at the time outside the scope of the regular budget. The account was originally funded by the inclusion in the budget of each active peacekeeping mission of an amount equal to 8.5 per cent of the cost of the civilian staff component of that mission (UN Doc A/50/876 (1996), para 9). The Secretary-General proposed to the General Assembly that the support account funding methodology be changed so that the Assembly would appropriate the Headquarters backstopping requirements for the 12-month period ending 30 June of the following year and member states would be assessed on the same scale as that used for peacekeeping assessments (UN Doc A/50/876 (1996), para 23). The Assembly approved the new support account funding arrangements on a provisional basis for the period from 1 July 1996 to 30 June 1997 (GA Res 50/221 B (1996)).

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‘Backstopping’ is defined as ‘the overall direction, assistance and guidance given by departments/offices and other units, at the Headquarters, for ensuring the effective planning, implementation and liquidation of peacekeeping operations’ (UN Doc A/51/890 (1997), para 1). 173

  The Peacekeeping Support Account was $326 million for the period from 1 July 2014 to 30 June 2015 (UN Doc A/70/749 (2016)). The Support Account funds many posts in peacekeeping and acts like a parallel budget. 174

  The annual cost of UN peacekeeping in 1993 was over $3.6 billion. In 1998, expenses had dropped to around $1 billion. In 2000, peacekeeping cost $2.6 billion. The approved budget for UN peacekeeping operations for the period 1 July 2015 to 30 June 2016 was $8.27 billion (UN Doc A/C.5/69/24 (2015)). The costs are concentrated on the most complex and difficult missions. In 2009, the four missions in the Democratic Republic of the Congo, the Sudan, and Chad (the United Nations African Union Mission in Darfur (UNAMID), the United Nations Organization Mission in the Republic of the Congo (MONUC), the United Nations International School (UNIS), the United Nations Mission in the Central African Republic and Chad (MINURCAT)) accounted for 63 per cent of the peacekeeping budget (Department of Peacekeeping Operations and Department of Field Support, ‘A New Partnership Agenda: Charting a New Horizon for UN Peacekeeping’ (July 2009), available at http://www.un.org/en/peacekeeping/documents/newhorizon.pdf, p 28. The estimated total cost of operations from 1948 to 30 June 2008 was $61 billion. 175

  Between 2000 and 2006, there was a five-fold increase in field personnel, although the 2016–17 budget presents a small reduction of $0.4 billion on the approved 2015–16 budget (UN Doc A/C.5/69/24 (2015) and UN Doc A/CN.5/70/24 (2016)). Other than the US, the UN has the largest number of military forces deployed in the world (UN Department of Public Information, United Nations Peacekeeping: Meeting New Challenges: Frequently Asked Questions (2006), 8). 176

  See, eg, Security Council decisions relating to Angola (SC Res 1229 (1999)), Liberia (SC Res 2308 (2016)), and Rwanda (SC Res 1029 (1995)). There have also been questions about the legality of the UN’s engagement in certain peacekeeping operations. See ch 27, ‘Peacekeeping and Other Peace Operations’, section 2, ‘Legal basis for peacekeeping’. 177

  Unpaid assessments relating to active peacekeeping missions amounted to $1.1 billion as of June 2015 (UN Doc A/70/5 (vol II, ch 3) (2015), para 7). 178

  GA Res 47/217 (1992) created the Peacekeeping Reserve Fund as a cash-flow mechanism to ensure the rapid response of the UN to the needs of peacekeeping operations. The level of the Fund was to be $150 million (a small amount relative to the cost of peacekeeping missions and the level of unpaid assessments), funded by transfers of balances from the special accounts for the United Nations Transition Assistance Group (UNTAG) and the United Nations Iran–Iraq Military Observer Group (UNIIMOG), and from the amount retained in the General Fund pursuant to GA Res 42/216 A (1987). Member states’ shares of the Peacekeeping Reserve Fund were to remain fixed, and were to be calculated on the basis of the ad hoc apportionment set out in GA Res 45/247 (1990). GA Res 49/233 A (1994) limited the use of the Fund to the start-up or expansion of peacekeeping, and to unforeseen and extraordinary expenditures related to peacekeeping. The Fund stood at $151.6 million as at 30 June 2015 (UN Doc A/70/749 (2016), Annex IV, para 2). See Reg 4.5 of the Financial Regulations and Rules, n 1. See also Dormoy, Les opérations de maintien de la paix de l’Organisation des Nations Unies. ‘Aspects récents de la question du financement des operations de maintien de la paix de l’organization des Nations Unies’ (1993) 39 AFDI 131.

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179

  If there is a Security Council decision relating to the start-up or expansion of a peacekeeping operation that results in the need for expenditure, the Secretary-General is authorized, with the prior concurrence of the ACABQ, to enter into commitments not to exceed $100 million per decision of the Security Council. The cumulative total of outstanding commitment authority in respect of the start-up or expansion phase of peacekeeping operations is not to exceed the total level of the Peacekeeping Reserve Fund at any one time; however, the appropriation by the General Assembly of any outstanding commitments shall automatically restore this commitment authority to the extent of the amount appropriated (Reg 4.6 of the Financial Regulations and Rules, n 1). Advances made from the Peacekeeping Reserve Fund must be reimbursed as soon as receipts from contributions are available (Reg 4.7). If a decision of the Security Council results in the need for the Secretary-General to enter into commitments for an amount exceeding $100 million per decision of the Security Council or the total level of the Fund, the matter must be brought to the General Assembly as soon as possible for a decision on commitment authority and assessment (Reg 4.8). The Secretary-General and the ACABQ must report to the General Assembly on any exercise of and the circumstances of the commitment authority in the context of the next report submitted (Reg 4.9). 180

  The Secretary-General has defined special political missions as ‘activities of special and personal envoys of and special advisers to the Secretary General, support to sanctions and monitoring committees, small to medium-sized political peacebuilding, integrated and regional offices as well as assistance missions with mandates that can be defined as essentially political in nature’. The term also applies to UN participation in the International Advisory and Monitoring Board (IAMB) and the operations of the Counter-Terrorism Committee Executive Directorate. It is also a general principle that special political missions do not have significant military or police roles through the presence of formed police or military units, although they may have a rule of law or governance mandate in some cases (eg the United Nations Political Office for Somalia (UNPOS), the United Nations Integrated Peacebuilding Office in Guinea-Bissau (UNIOGBIS), or the United Nations Assistance Mission in Afghanistan (UNAMA)) (UN Doc A/64/349 (2009), para 16). The two largest special political missions in recent years have been UNAMA and the United Nations Assistance Mission for Iraq (UNAMI) (UN Doc A/70/348 (2015), paras 10, 16–19). While the majority of special political missions have not originated from peacekeeping operations, some have been introduced as peacekeeping missions draw down. 181

  The budget allocation for special political missions has grown from an initial appropriation of $86 million in the 2000–1 programme budget to the expected appropriation of $1.12 billion for the biennium 2016–17. See UN Doc A/66/7/Add.21 (2011), para 6 and UN Doc A/70/7/Add.10 (2015), paras 7–8. 182

  As of November 2015, there were 11 special political missions administered by the DPA (UN Doc DPI/2166/Rev.148 (2015)). The missions have varying lead departments, including the DPA, the Department of Peacekeeping Operations, and the DFS. Special political missions consist of special envoys, sanctions panels and monitoring groups, and field-based missions (UN Doc A/70/400 (2015), Annex). 183

  The funding model for special political missions has been one of the most politically charged issues in the Fifth Committee since 2011. The General Assembly has considered establishing a special and separate account for the funding of special political missions that would be budgeted, funded, and reported upon on an annual basis with a financial period of 1 July to 30 June (GA Res 66/247 (2011), UN Doc A/66/340 (2011), para 18, and UN Doc A/ 66/7/Add.21 (2011), para 25). As of December 2016, special political missions are still part

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of the regular budget, even if their funding is reviewed on the odd years on the basis of revised estimates. 184

  GA Res 1001 (ES-I) (1956) and GA Res 1089 (XI) (1956).

185

  GA Res 1151 (XII) (1957) and GA Res 1575 (XV) (1960). In 1996, the UN adopted the Contingent Owned Equipment system to simplify the reimbursement to states that provide equipment, personnel, and self-sustainment support services to formed military or police contingents in peacekeeping missions (GA Res 50/222 (1996)). The rates of reimbursement are reviewed every three years by a Contingent Owned Equipment Working Group of the General Assembly. The UN enters into a Memorandum of Understanding (MOU) with each troop-contributing country (TCC)/police-contributing country, which establishes the responsibility and standards for the provision of personnel, major equipment, and selfsustainment support services for both the UN and the contributing country. It is signed by representatives from the DFS and the contributing countries’ Permanent Missions to the UN. The MOU remains in force until the end of the mandate of the peacekeeping operation, when the formed military/police unit repatriates from the mission, or until both parties mutually agree that the MOU requires adjustment. Disputes concerning the implementation of the MOU, not resolved through negotiations, are to be referred a mutually agreed conciliator or mediator, appointed by the President of the ICJ, failing which the dispute is to be submitted to arbitration (UN Doc A/C.5/69/18 (2014)). 186

  The principle of standard rates of reimbursement was established by the General Assembly in 1974, with effect from 25 October 1973 (UN Doc A/9631 (1975), p 140, Item 84). The standard rates of reimbursement to TCCs were initially for pay and allowances, and a supplementary payment for a limited number of specialists. In 1975, the General Assembly approved the principle of reimbursing TCCs for the usage factor of personal clothing, gear, equipment, and personal weaponry, including ammunition (UN Doc A/10034 (1976), p 148, Item 107). GA Res 42/224 (1987) recommended a review by the SecretaryGeneral, in consultation with the TCCs, at least once every two years. The calculation of the standard rates of reimbursement established in 1973 was based on the following principles: (i) principle of equality in service for troops serving side by side in peacekeeping forces and providing identical services; (ii) that no government should receive a higher reimbursement than its actual costs; and (iii) that TCCs should be reimbursed at least the actual overseas allowance paid to their troops (UN Doc A/63/746 (2009), para 175). See also UN Doc A/60/725 (2006), paras 1–7. In 2016, the rates of reimbursement paid by the UN to TCCs per peacekeeper per month included: $1,365 for pay and allowances (to be increased to $1,410 from 1 July 2017); $303 supplementary pay for specialists; $68 for personal clothing, gear, and equipment; and $5 for personal weaponry (GA Res 68/281 (2014) and UN Doc A/68/813 (2014), para 4). Since 2014, the Secretary-General is also authorized to make two additional premium payments to TCCs and police-contributing countries (ie risk premium and premium for limited number of key enabling capacities) (GA Res 67/261 (2013) and UN Doc A/68/813 (2014), paras 58– 77). 187

  As at 31 March 2015, the UN debt to member states for providing troops and equipment to peacekeeping operations was $663 million. At the end of April 2014, it had been $804 million. The debt is due in part to delays in the receipt of contributions from member states for such peacekeeping operations (UN Doc A/68/524/Add.1 (2014), para 16; and UN Doc A/69/520/Add.1 (2015), para 17, corrected in UN Doc A/69/520/Add.1/Corr.1 (2015)).

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188

  Reg 3.4 of the Financial Regulations and Rules, n 1. Rule 103.1 delegates this task to the Under-Secretary-General for Management, who must inform member states within 30 days of the General Assembly’s decision to approve or revise the programme budget and the level of the Working Capital Fund (Rule 103.1 of the Financial Regulations and Rules, n 1). 189

  Reg 3.5 of the Financial Regulations and Rules, n 1. Reg 3.6 provides that payments shall be credited first to the Working Capital Fund and then to the contributions due in the order in which the member was assessed, and Reg 3.7 requires the Secretary-General to report to the General Assembly on the collection of contributions. 190

  Reg 3.10 of the Financial Regulations and Rules, n 1. Rule 103.3 nonetheless provides that the General Assembly may authorize payment in other currencies if the UnderSecretary-General for Management is satisfied that the currencies are meeting expenses in the same currencies and they represent freely transferable and readily usable funds. The General Assembly usually grants the Secretary-General discretion, after his consultation with the Chair of the Committee on Contributions, to accept a portion of the member states’ contributions in currencies other than US dollars notwithstanding Reg 3.10 (see, eg, GA Res 67/238 (2012), para 16(a) and GA Res 70/245 (2015), para 19(a)). 191

  Schermers and Blokker, n 22, 652.

192

  The UN suffered a loss of $11 million when the US dollar was devalued in 1973 (UN Doc A/9773 (1974), Annex I). In order to limit the risk of losses, some international organizations use a special unit of account composed of specified amounts of different currencies (eg the Special Drawing Rights of the IMF). The UN has not been able to agree upon such a system for its own organization (see, eg, UN Doc A/9773 (1974) and GA Res 3360 (XXIX) (1974)). Currency fluctuations have also in part led to losses to the UN Joint Staff Pension Fund, which suffered a 25 per cent decline in its assets’ market value during 2008 (UN Doc UNJSPF/2009/8 (2009)). 193

  At the end of 2015, 51 member states had not paid their assessed contribution for the regular budget, amounting to $533 million in unpaid assessments (of which $313 million was owed by the US) (UN Doc A/70/433/Add.1 (2016), paras 6–7; and Presentation by the Under-Secretary-General for Management, 4 May 2016, available at http://www.un.org/en/ ga/contributions/financial.shtml). In 2014, only 144 member states paid their regular budget contributions in full (UN Doc A/69/520/Add.1 (2015), para 7), 146 did in 2013 (UN Doc A/68/524/Add.1 (2014), para 5), 143 did in 2012 (UN Doc A/67/522/Add.1 (2013), para 6) and 2011 (UN Doc A/66/521/Add.1 (2012), para 6), and 138 did in 2010 (UN Doc A/ 65/519/Add.1 (2011), para 7). 194

  Under the League Covenant, there had been no provision for legal consequences for arrears. At the San Francisco Conference, The Netherlands and Norway submitted proposals that led to the inclusion of Art 19 in the UN Charter (Netherlands, III United Nations Conference on International Organization (UNCIO), 325; Norway, (1945) III UNCIO, 356, 367; Tomuschat ‘Article 19’ in Simma et al (eds) (3rd edn, 2012), n 22, 638). Contributions are due and payable in full within 30 days of the receipt of the communication from the Secretary-General, or on the first day of the calendar year to which they relate, whichever is later. The two full years referred to in Art 19 are measured from 1 January of the financial year in issue (Reg 3.5 of the Financial Regulations and Rules, n 1). Measuring from 1 January means that no legal consequences ensue during that year if a member state continues to withhold payments and accumulates arrears in excess of the amount due for the previous two calendar years. In practice, a member state can maintain a negative balance of slightly less than two full annual contributions and not be sanctioned pursuant to Art 19. Since the commitments of the current financial year are disregarded for

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the purpose of Art 19, the total amount of arrears may be up to almost three years of contributions without triggering that Article (Tomuschat, above, 644). At the start of each annual session, one of the first resolutions passed by the General Assembly will be on the applicability of Art 19. This is to confirm which states can vote in the election of the non-permanent members of the Security Council (see, eg, GA Res 62/1 (2007); GA Res 64/2 (2009); GA Res 66/4 (2011); and GA Res 71/2 (2016)). 195

  The ‘financial contributions’ in Art 19 refer to the contributions determined under Art 17 of the UN Charter. This covers the assessed contributions to the regular budget, special accounts for peacekeeping (but see the compromise adopted with respect to the Soviet Union in 1965 in para 14.47), and the International Tribunals. If a member state makes a financial pledge that it later does not fulfil, there is no recourse to the procedure in Art 19 (Tomuschat, n 194, 639). 196

  The automatic effect of Art 19 is confirmed by the ordinary meaning of the text (‘shall have no vote’), the reference to the General Assembly’s taking a positive action in the second clause of the Article, and a comparison with Art 5 of the UN Charter, which does require a constitutive resolution (Tomuschat, n 194, 645). This was the view adopted by the Legal Counsel when the Soviet Union claimed that a two-thirds majority of the Assembly was required ([1968] UN Juridical YB 186–8). The same view was expressed in 1974 ([1974] UN Juridical YB 156–7). The compromise of 1965 avoided the application of Art 19 (see also para 14.47). In terms of procedure, the Secretary-General certifies near the beginning of each year which member states are in arrears for the purposes of Art 19, in the form of a letter to the President of the General Assembly (see, eg, UN Doc A/63/725 (2009) and UN Doc A/71/381 (2016)). Moreover, the Secretary-General provides member states with monthly status reports on the amounts assessed, paid, and owed to the regular budget, and on continuing operations for which there is a special assessment (see, eg, UN Doc ST/ADM/SER.B/761 (2008); see also General Assembly Official Records (GAOR), Supp no 34 (UN Doc A/10034 (1976), Item 96, p 143, para (h)). 197

  The plenary forms a whole with its Main Committees, which is where the bulk of discussion and drafting takes place. In practice, the plenary and the Main Committees have been treated in the same way. Subsidiary organs of the General Assembly (established under Art 22 of the UN Charter) are not affected by Art 19, and are also composed of a limited number of member states. See also Tomuschat, n 194, 649–50 and the Rules of Procedure of the General Assembly, n 16, chs XII and XIII. 198

  This need not be payment in full, but only to bring it within two years of accumulated arrears (Tomuschat, n 194, 649; Ohse, ‘Die Suspension die Stimmrechts in der Generalversammlung der UNO’ (1973) 21 Vereinte Nationen 155, at 158). 199

  States often rush to make minimum payments before the presentation by the UnderSecretary-General for Management or the Controller on the financial situation, which occurs in May and October of every year. The presentation names those countries that have paid their assessments on time (see, eg, Presentation by the Under-Secretary-General for Management, 4 May 2016, available at http://www.un.org/en/ga/contributions/ financial.shtml). It has proved to be an effective tool for encouraging payment. 200

  The Soviet Union, France, and certain other member states refused to abide by the ICJ’s Advisory Opinion in relation to the funding of peacekeeping forces (Certain Expenses of the United Nations ICJ Rep 1962). The USA in 1964 took a position that, once a member state was in arrears, suspension of voting pursuant to Art 19 required no decision of the General Assembly but applied automatically (Office of the State Department Legal Adviser ‘Memorandum of Law on Article 19 of the Charter of the United Nations’ (1964) 58 AJIL Proceedings 753). The Soviet Union had said that if it could not vote, it would walk out of

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the UN, so the Secretary General proposed the ‘without objection’ procedure (UN Doc A/PV. 1286 (1964), paras 7–9; Bongang, The United States and the United Nations: Congressional Funding and UN Reform (2007), 162). The President of the General Assembly was Ambassador Alex Quaison-Sackey of Ghana. 201

  GA Res 54/237 C (1999). The Assembly urged all member states in arrears requesting exemption under Art 19 to provide the fullest possible information supporting the claim that the failure to pay assessed contributions was attributable to conditions beyond the control of the member state. Requests for exemption must be submitted to the President of the General Assembly at least two weeks before the session of the Committee on Contributions (see also the General Assembly’s subsequent resolutions reaffirming this procedure (GA Res 67/2 (2012); GA Res 70/2 (2015); and GA Res 71/2 (2016)). Occasionally a state in arrears may be given provisional authorization to vote where the amount due has already been dispatched but has not yet reached the accounts of the UN. A state may also be authorized to vote pending the outcome of an examination of its request for exemption under Art 19 (Tomuschat, n 194, 652; see, eg, the authorization accorded to Yemen in 1971 (UN Doc A/PV.1934 (1971), paras 21–4)). 202

  Five requests were made in 2016 (one was withdrawn) (UN Doc A/71/11 (2016), para 93); seven in 2015 (two were withdrawn) (UN Doc A/70/11 (2015), para 110); six in 2014 (two were withdrawn) (UN Doc A/69/11/Add.1 (2014)); five in 2013 and 2012 (UN Doc A/ 68/11 (2013), para 83); six requests were made in 2011, 2010, and 2009, seven in 2008, eight in 2007 (one was later withdrawn), eight in 2006 and 2005, 10 in 2004, nine in 2003, seven in 2002, three in 2001, and seven in 2000 (UN Doc A/66/11 (2011), para 116). In 2016, the Committee on Contributions recommended that four states that made requests (Comoros, Guinea-Bissau, Sao Tome and Principe, and Somalia) be allowed to vote in the General Assembly until the end of the 71st session, which was approved by the General Assembly (GA Res 71/2 (2016)). Libya, which also applied for an exemption, made sufficient payments by the start of the 71st session to have its voting rights restored (UN Doc A/71/11 (2016), para 107)). 203

  This option was set out in GA Res 57/4 B (2002). Multi-year payment plans are voluntary and should provide for the elimination of the arrears within six years (UN Doc A/ 57/11 (2002), paras 16–23). Few member states have taken up the option: Tajikistan, Iraq, Moldova, Georgia, Liberia, and the Niger had implemented such plans by 2012, while Sao Tome and Principe is currently implementing it (UN Doc A/71/73 (2016)). 204

  In 1964, the USSR was in arrears for two years’ contributions due to its refusal to pay its share for UNEF I and ONUC. The General Assembly accepted the compromise put forward by a Special Committee on Peacekeeping Operations (the Committee of ThirtyThree), namely, that the question of the applicability of Art 19 would not be raised with respect to those peacekeeping operations (GA Res 2006 (XIX) (1965); UN Doc A/PV/1331 (1965); UN Doc A/5916 and Add/1 (1965)). In 1985, the US Congress adopted the Kassebaum amendment, limiting US payments to the UN and specialized agencies to 20 per cent of their budgets unless a new procedure of weighted voting was adopted for budgetary matters, and to reflect its lack of confidence in the UN (UN Doc A/40/PV.127 (1986), pp 57–8). The US was also seeking to achieve savings in its national budget (Balanced Budget and Emergency Deficit Control Act of 1985, Pub L 99–177, 99 Stat 1037). A Group of High-Level Intergovernmental Experts to Review the Efficiency of the Administrative and Financial Functioning of the UN (Group of 18) was established (GA Res 40/237 (1985)) and produced a report recommending changes to the budgetary procedure (UN Doc A/41/49 (1986)). Some of these were adopted, including that the CPC should continue to reach decisions by consensus and the Fifth Committee should ‘make all possible efforts with a view to establishing the broadest possible agreement’ (GA Res 41/213 (1986)). See also para 14.15. This reflected a general agreement that decisions From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

on budgetary matters will not be taken against the will of the largest contributors (Schermers and Blokker, n 22, 655–6). When the Government of the People’s Republic of China (PRC) replaced the Government of Taiwan in the UN, the PRC Government refused to pay the debt of $30 million in unpaid arrears accrued by Taiwan. The debt was transferred to a special account and effectively written off (Bissell, ‘A Note on the Chinese View of United Nations Finances’ (1975) 69 AJIL 628; GA Res 3049 C (XXVII) (1972); 1972 UNYB 715–20). The General Assembly rejected a similar argument by the Government of the Democratic Kampuchea, which claimed not to be responsible for the arrears of the Lon Nol Government (1970–5) (UN Doc A/32/11 (1977), para 88). For more examples, see Cot, Pellet, and Forteau, La Charte des Nations Unies Commentaire article par article (3rd edn, 2005), 368–9; and Tomuschat ‘Die Beitragsverweigerung in internationalen Organisationen’ in Internationales Recht und Wirtschaftsordnung Festschrift für FA Mann (eds Flume et al, 1977), 440. 205

  In 1967, 1968, and 1969, Haiti and the Dominican Republic were disregarded in a number of roll-call votes and in the distribution of voting bulletins (Tomuschat, n 194, 647– 8). In 1973, the President of the General Assembly agreed with the Central African Republic that it would not vote in the plenary or the Main Committees, it would not be called upon in a roll-call vote, and its position would not be taken into account in informal votes (ibid). A similar agreement was reached with the Central African Republic and the Congo in 1976 (UN Doc A/31/219 (1976) and UN Doc A/31/PV.1 (1976), para 43), and with the Central African Empire and the Dominican Republic in 1977 (Tomuschat, n 194, 647). In 1977, UN documents show that South Africa and Democratic Kampuchea were in arrears (see UN Docs A/32/224 (1977) and A/32/PV.1 (1977), paras 16–18). In 1978, six states in arrears were not called during the final vote on the Declaration in Namibia (GAOR (S-9), 15th plenary meeting, 3 May 1978, p 241, paras 58–9). In 2009, Chad was in arrears under the terms of Art 19 of the UN Charter and had no vote in the General Assembly (UN Doc A/ 64/11 (2009), para 126). In 2012 and 2015, it was Yemen (UN Doc A/67/11 (2012), para 158 and UN Doc A/70/11 (2015), para 144). 206

  See para 14.60. In 1977, the President of the General Assembly was elected by acclamation rather than a secret vote to avoid the application of Art 19 to Democratic Kampuchea (UN Doc A/32/PV.1 (1977), para 18). See also Mills, ‘The Financing of United Nations Peacekeeping Operations: The Need for a Sound Financial Basis’ (1989) International Peace Academy Occasional Paper No 3, 11–12; James, ‘The Security Council: Paying for Peacekeeping’ in The United Nations in the World Political Economy: Essays in Honour of Leon Gordenker (ed Forsythe, 1989), 13. 207

  In practice many member states pay enough of their assessed contributions to remain one year and 364 days in arrears, thus avoiding the application of Art 19 (Daws ‘Financing the Activities of the UN System: Introduction’ in Taylor, Daws, and Adamczick-Gerteis (eds), n 12, 181). 208

  Bolivia in 1960 and Haiti in 1963 were in arrears for two years, but their delegations were not present when the relevant General Assembly sessions opened, and thus the question of depriving them of their vote did not arise; by the time of the first vote, they had paid their arrears (Stoessinger, Financing the United Nations System (1964), 81. 209

  The financial crisis in the 1960s was largely a result of the withholding of contributions by the Soviet Union in protest at the financing of UNEF and ONUC. Four intergovernmental organs were set by the General Assembly to seek solutions to the financial problems in the 1960s and 1970s: the Special Committee on Peacekeeping Operations (GA Res 2006 (XIX) (1965)), the Committee of Fourteen (GA Res 2049 (1965)), the Special Committee on the Financial Situation of the UN (UN Doc A/PV.2031 (1971), para 93), and the Negotiating Committee on the Financial Emergency of the UN (GA Res 3538 (1975)). No agreement From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

could be reached on how to address the non-payment of contributions (Schmidt and Koschorreck, n 22, 312). The financial crisis in the 1980s was due to the withholding of payments relating to peacekeeping operations, the arrears incurred by Taiwan and not accepted by China, and the limitation of contributions by the US subject to the adoption of budgetary and administrative reform, expressed in the Kassebaum Amendment (UN Doc A/40/1102 (1986); UN Doc A/C.5/41/24 (1986)). Austerity measures were adopted by the Secretary-General in 1986–7 (UN Doc A/40/1102 (1986)) and a movement to consensus decision-making on budgetary matters was agreed upon (see para 14.15). The crisis in the 1990s was also a factor of the US position towards the UN: Congress refused to appropriate funds for major peacekeeping operations and US arrears quintupled in two years (Laurenti, n 44, 689). This led to a reduction of the US percentage of the regular budget to 22 per cent (GA Res 55/5 B (2000)) and of the peacekeeping special accounts to not quite 27 per cent (Laurenti, n 44, 690). In the 2000s, the UN suffered as a result of the global financial crisis, which increased the unpredictability in payments by member states. At the same time, the Capital Master Plan and increasing costs of peacekeeping and the International Tribunals put financial pressure on the organization (see, eg, UN Doc A/62/539/Add.1 (2008) and UN Doc A/65/519 (2010)). 210

  Suggestions have included levies on airline traffic and shipping related to the maintenance of peace, taxes on arms sales, taxes on the production of hydrocarbon fuels, a foreign currency exchange transactions tax (Tobin tax), charges for use of the global commons, and an international UN lottery. The Ogata-Volcker Report (annexed to UN Doc A/48/460 (1993)) found such ideas neither practical nor desirable (see para 14.26). 211

  The Capital Master Plan was established pursuant to GA Res 55/238 (2000). It was for the defined period of UN Headquarters’ renovation between 2006 and 2014 (GA Res 61/251 (2006)). The works were substantially completed in September 2014 (UN Doc A/70/343 (2015), para 8) and completion is expected in 2017 (UN Doc A/71/309 (2016), para 15). 212

  GA Res 57/292 (2002), s II, para 24. The Capital Master Plan had an approved budget of $1.9 billion (GA Res 61/251 (2006)), though it has suffered from cost overruns (GA Res 62/87 (2007) and GA Res 65/269 (2011)). 213

  Funding options were explored in 2004 (UN Doc A/58/729 (2004)). The financing for a preliminary phase (developing viable alternatives) came through special assessments to all member states. The financing of the Capital Master Plan used the scale for the 2007 regular budget assessments over either a five-year period or a one-time payment up front (GA Res 61/251 (2006), para 15). A working capital reserve fund was established to mitigate cashflow fluctuations (GA Res 61/251 (2006), paras 9, 22). An internationally syndicated letter of credit facility may be used to cover temporary cash-flow deficits (UN Doc A/61/549 (2006), paras 35–8 and GA Res 61/251 (2006), para 24). 214

  The General Assembly called upon the ACABQ to examine the agency relations ‘on behalf of the General Assembly’ and to make proposals (GA Res 14 A (I) (1946), para 2(c)). Reviews and report are also undertaken by the CPC, JIU, and ad hoc committees (see, eg, GA Res 32/197 (1977) on the Ad Hoc Committee on the Restructuring of the Economic and Social Sectors of the UN System and GA Res 45/264 (1991)). The General Assembly set up statutory bodies that the specialized agencies can join of their own accord, such as the United Nations Joint Staff Pension Fund (UNJSPF), the International Civil Service Commission (ICSC), and the JIU (Woeste and Thomma, n 22, 610–11).

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215

  In 1946, a standing committee (the Advisory Committee on Coordination (ACC)), chaired by the Secretary-General and composed of the executive heads of the specialized agencies, was created for the purpose of ‘taking all appropriate steps under the leadership of the Secretary-General to ensure the fullest and most effective implementation of the agreements entered into with these agencies’ (UN Doc E/245/Rev.1 (1947), p 24). With the growth of the UN’s Programmes and Funds, and the creation of new entities, the scope of the work of the ACC expanded beyond the implementation of the relationship agreements. The ACC was renamed the CEB in 2000 to ‘highlight both its function as a “board” concerned with fostering the unity of the entire United Nations system, and its capacity to bring together all its member organizations at the highest executive level’ (UN Doc E/ 2001/55 (2001), para 63). The CEB brings together on a regular basis the executive heads of the organizations of the UN System, under the chairmanship of the Secretary General. The CEB is supported by three High-Level Committees: the High-Level Committee on Programmes (HLCP; promotion of global policy coherence), the High-Level Committee on Management (HLCM; harmonization of business practices), and the United Nations Development Group (UNDG; promotion of oversight) (UN CEB at http://www.unsceb.org/ content/how-we-work; see also UN Doc E/2015/71 (2015), Summary). 216

  See, eg, the relationship agreement with UNIDO (GA Res 40/180 (1985)), which provides that the Secretary-General is to be consulted in order to promote uniformity in budget presentation and the agency budget is to be presented to the UN at the same time it is transmitted to UNIDO members. The agreements with the IMF and World Bank emphasize the budgetary autonomy of those institutions and only require transmission of their annual reports and quarterly financial statements to the UN (GA Res 124 (II) (1947) and UN Doc A/349 (1947)). See also Woeste and Thomma, n 22, 611. 217

  There have been periodic efforts to coordinate the essential elements of the budget presentation (GA Res 311 (IV) (1949); UN Doc A/6343 (1966) (report of the Committee of Fourteen); UN Doc A/39/592, 23 October 1984 (report of the ACABQ); GA Res 40/250 (1985); UN Doc A/C.5/41/23 (1986), Annex (Fifth Committee report on recommended methods for making cost estimates); and UN Doc A/38/515 (1983) (comparison of programme budget and evaluation methods). Most agencies adopt financial regulations aligned with those of the UN. See Woeste and Thomma, n 22, 612. 218

  Doubts have been raised as to whether this sort of general review is an adequate implementation of Art 17(3). This is balanced against the concerns to ensure the autonomy of the specialized agencies and to avoid duplication (Woeste and Thomma, n 22, 614.). Until 1991, a statistical report on the budgetary and financial situation of the organizations of the UN System was produced by the ACABQ and included in its annual reports on administrative and budgetary coordination of the UN with the specialized agencies and the IAEA (see, eg, UN Doc A/41/671 (1986)). Since 1991, these biennial reports have been produced by the ACC (and later its successor, the CEB) (see, eg, UN Doc A/63/185 (2008); UN Doc A/63/612 (2008); and UN Doc A/69/694 (2014)).

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Part 2 The United Nations: What it is, 15 The United Nations Secretariat and Secretary-General Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): International organizations

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(p. 495) 15  The United Nations Secretariat and SecretaryGeneral 1.  Structure and functions of the Secretariat 15.01 2.  The International Civil Service 15.12 3.  The Secretary-General 15.38 Bailey, The Secretariat of the United Nations (rev edn, 1964); Chesterman, ‘Article 97’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), 1991; Chesterman, ‘Article 98’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), 2002; Chesterman, ‘Article 99’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al (eds), 2012), 2009; Cot, Pellet, and Forteau (eds), La Charte des Nations Unies: Commentaire article par article (3rd edn, 2005); de Cuéllar, ‘Le rôle du Secrétaire général des Nations Unies’ (1985) 89 RG 233; de Ginestel, ‘La réforme des nations unies et l’autonomie du secrétariat’ (2006) 7 Annuaire français des relations internationales 909; Ebner, ‘Article 100’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), 2022; Gordenker, The UN Secretary-General and the Maintenance of Peace (1967); Gordenker, The UN Secretary-General and Secretariat (2nd edn, 2010); Jonah, ‘Secretariat: Independence and Reform’ in The Oxford Handbook on the United Nations (eds Weiss and Daws, 2007), 160; Langrod, The International Civil Service: Its Origins, Its Nature, Its Evolution (1963); Meron, The United Nations Secretariat (1977); Newman, ‘Secretary-General’ in The Oxford Handbook on the United Nations (eds Weiss and Daws, 2007), 175; Radi, ‘La réforme du système de justice interne de l’organisation des Nations Unies’ (2008) 126 Revue française d’administration publique 307; Rovine, The First Fifty Years. The Secretary-General in World Politics 1920– 1970 (1970); Schermers and Blokker, International Institutional Law: Unity within Diversity (4th rev edn, 2003), ch 4; Schwebel, The Secretary-General of the United Nations: His Political Powers and Practice (1952); Sesso, ‘Il segretariato delle Nazioni Unite’ (1972) 27 La Comunità Internazionale 329; Stöckl, ‘Article 101’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), 2053; Sutterlin, ‘The United Nations Secretary-General as Chief Administrator’ in The Challenging Role of the UN SecretaryGeneral: Making ‘the Most Impossible Job in the World’ Possible (eds Rivlin and Gordenker, 1993).

(p. 496) 1.  Structure and functions of the Secretariat 1.1  Principal organ of the UN 15.01  Article 7(1) of the UN Charter provides that the Secretariat is one of the six principal organs of the UN.1 The organization of the whole Secretariat was provided for in General Assembly Resolution 13(I) (1946). The UN diverged from what had been the classic structure for international organizations—one principal organ with a subordinate secretariat.2 Whereas some earlier international organizations had been staffed by nationals of the host country or officials on secondment from their governments,3 the Secretariat of the League of Nations—and later of the UN—was based on the notion of an international civil service.4

1.2  Relationship between the Secretariat and the Secretary-General

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15.02  The Secretariat is composed of the Secretary-General and staff, in accordance with Article 97 of the UN Charter.5 The Secretary-General is the head of the Secretariat and responsible for appointing the staff.6 He/she is also the ‘chief administrative (p. 497) officer of the Organization’,7 which encompasses responsibilities beyond the organ of the Secretariat.8

1.3  Scope and extent of the Secretariat 15.03  Article 97 of the UN Charter provides that the Secretariat comprises the SecretaryGeneral and the staff required by the UN organization.9 The Secretariat supports the other principal political organs.10 Article 101(2) states: ‘Appropriate staffs shall be permanently assigned to the Economic and Social Council, the Trusteeship Council, and, as required, to other organs of the United Nations. These staffs shall form a part of the Secretariat.’11 The assignment of staff pursuant to Article 101(2) has resulted in the decentralization of the Secretariat beyond New York and the multiplication of services provided by Secretariat staff.12 Secretariat staff members serve at duty stations,13 (p. 498) regional commissions,14 field missions,15 and at the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) (when they existed), and the International Residual Mechanism for International Tribunals (IRM, also known as the MICT).16 Major duty stations and many peacekeeping missions recruit their own staff.17 15.04  Some subsidiary organs and some Funds and Programmes have a special status in matters of appointment, as granted by the General Assembly. These ‘related entities’ include the United Nations Development Programme (UNDP), the United Nations Entity for Gender Equality and the Empowerment of Women (UN Women), the United Nations Population Fund (UNFPA), the Office of the United Nations High Commissioner for Refugees (UNHCR), the United Nations Children’s Fund (UNICEF), the United Nations Institute for Training and Research (UNITAR), the United Nations Joint Staff Pension Fund (UNJSPF), the United Nations Office for Project Services (UNOPS), the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), the United Nations University (UNU), the ICJ, International Civil Service Commission (ICSC), and the International Trade Centre United Nations Conference on Trade and Development/World Trade Organization (International Trade Centre) (UNCTAD/WTO) (ITC).18 The general principles of the Staff Rules apply to the staff of these bodies. UNRWA is an exception, in that it has not adopted the same Staff Regulations and Staff Rules as the UN Secretariat.19 The (p. 499) resolutions founding some of these organizations reflect a desire to grant them administrative independence and flexible management.20

1.4  Structure of the Secretariat 15.05  The Secretariat has a functional structure. It is organized into different Departments and Offices with specific areas of responsibility.21 Each Department/Office is divided and subdivided into several hierarchical organizational elements, each of which is responsible for a segment of the functions of that Department/Office.22 The Secretariat also includes the staff of the ICTY, the ICTR,23 (when they existed), the IRM, special advisers,24 the UN Regional Commissions,25 UN Offices away from (p. 500) the New York Headquarters,26 and other issue-specific offices27 and entities.28 Departments and Offices can be restructured or abolished according to the perceived needs of the organization.29 The Secretary-General, while not being a principal organ himself/herself, is the head of the Secretariat and appoints the Under-Secretaries-General (USGs) and Assistant-Secretaries-General (ASGs) who are in charge of the different Offices and Departments.30 The individual Offices and Departments are further divided into divisions, sections, branches, and units. The heads of

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these sub-divisions usually hold the rank of Director or Chief and report directly to the USG or ASG.31

1.5  Functions of the Secretariat 15.06  The UN Charter is largely silent as to the functions of the Secretariat.32 In practice the Secretariat carries out the diverse day-to-day work of the UN.33 The Secretariat’s functions derive from its role in supporting the organs of the UN and the specific tasks given to it by the Secretary-General.34

(p. 501) 1.5.1  Administrative functions 15.07  A large proportion of the Secretariat’s work is directed to supporting the work of the principal political and subsidiary organs of the UN. These tasks include the provision of rooms and related facilities for meetings and conferences; the accreditation of delegates; the drafting, translation, reproduction, and distribution of documents; the compilation of documents; intervention, through the offices of the chair during discussions; the transmission of nominations of persons for membership in sub-committees, or election as chairpersons or rapporteurs.35 The preparation of the UN’s budget is also a task of the Secretariat, as is the subsequent implementation and monitoring of the budget once it has been approved by the General Assembly.36

1.5.2  Information functions 15.08  The Secretariat deals with information in two ways.37 First, it communicates information on the work of the organization to the member states, civil society, and the general public.38 Second, it transmits information within the organization, including to delegates and experts.39

1.5.3  Recording and reporting functions 15.09  The Secretariat is involved in recording meetings and conferences.40 In addition, the Secretariat may collect reports from member states or gather data.41 Organs may call (p. 502) upon the Secretariat to compile statistics, produce studies, or survey economic, legal, or social trends in order to assist with their decision-making.42 The Secretariat is responsible for registering and publishing treaties or international agreements entered into by any member of the UN.43

1.5.4  Substantive functions 15.10  The Secretariat also engages in tasks related to the substantive function of the Department or Office, such as encouraging the progressive development of international law and its codification,44 coordinating humanitarian action,45 ensuring the safety and security of staff,46 providing electoral assistance,47 promoting disarmament efforts,48 and managing peacekeeping operations.49

(p. 503) 1.6  Efforts to reform the Secretariat 15.11  There have been proposals to reform the Secretariat almost since the date of its establishment.50 Reform proposals have originated from the Secretary-General, the member states, and independent bodies.51 Reforms tend to be introduced by the Secretary-General at the beginning of his/her term, but calls for reform have also come from the exposure of scandals52 and pressure from member states.53 Reforms have been implemented to varying degrees.54 Secretary-General Dag Hammarskjöld initiated the first wave of reforms in 1954.55 Secretary-General Lie was prompted to (p. 504) look into reform and did so.56 The next real wave came from Secretary-General U Thant in 1968.57 Secretary-General Kurt Waldheim introduced reforms in 1975.58 Institutional reforms were also undertaken by Secretary-General Boutros Boutros-Ghali.59 Secretary-General Kofi Annan made reforming

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the UN a priority during his two terms, making major efforts in 1997, 2002, 2005, and 2006.60 Secretary-General Ban announced his reform agenda in 2008.61

(p. 505) 2.  The International Civil Service 15.12  The independence of the International Civil Service is protected by Article 100 of the UN Charter.62 Effective 1 January 2003, all UN staff members are referred to as ‘international civil servants’.63 This terminology also applies to staff members working for bodies that are related to, but not part of, the UN Secretariat.64

2.1  Applicable rules 15.13  Three sets of rules apply to the staff of the UN Secretariat. First, the UN Charter contains provisions relating to the service of staff. These address the eligibility of men and women to participate in any capacity and under conditions of equality (Article 8), the basic composition of the Secretariat (Article 97), the independent and international character of the responsibilities of the staff (Article 100), the appointment, assignment, and recruitment of staff (Article 101), and privileges and immunities (Article 105). Second, the General Assembly issues Staff Regulations, setting out the broad principles of human resources policy for the staffing and administration of the Secretariat.65 Third, the Secretary-General is required by the Staff Regulations to provide and enforce Staff Rules, which implement the Staff Regulations.66 In addition, the International Civil Service is subject to regulation by relationship (p. 506) agreements between the UN and specialized agencies,67 headquarters agreements,68 and the conventions on the UN’s privileges and immunities and the privileges and immunities of specialized agencies.69 Moreover, the General Assembly can develop and modify the service regulations by passing resolutions.70 SecretaryGeneral’s Bulletins71 and Administrative Instructions72 also affect the rights of staff.

2.2  Common system 15.14  The common system represents common standards, methods, and arrangements being applied to salaries, allowances, and benefits for the staff of the UN, the specialized agencies that have entered into a relationship agreement with the UN, the IAEA, and other specialized agencies.73 It is designed to avoid major discrepancies in terms (p. 507) and conditions of employment, to prevent competition in the recruitment of staff, and to facilitate the exchange of personnel.74 The common system is composed of principles, not binding legal norms.75 Coordination and administration is carried out through a number of entities.

2.3  Secretariat’s role in the common system 15.15  Within the OHRM, the Conditions of Service Section conducts salary surveys and provides advice on the administration of the common system.76

2.4  Fifth Committee’s role in the common system 15.16  Member states are involved in the working of the common system through participation in the Fifth Committee, which considers and approves financial and budgetary arrangements with specialized agencies and makes recommendations to the agencies concerned.77

2.5  Chief Executives Board’s role in the common system 15.17  The Chief Executives Board (CEB) promotes coordination and cooperation on issues facing UN system organizations. It is composed of the executive heads of the (p. 508) organizations of the UN System, under the chairmanship of the Secretary-General.78 The Human Resources Network of the CEB provides strategic advice on human resource

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management developments, and prepares, on behalf of the CEB, input and exchange with the ICSC.79

2.6  International Civil Service Commission’s role in the common system 15.18  The ICSC is an independent expert body established by the General Assembly in 1974.80 Its mandate is to regulate and coordinate the conditions of service of staff in the UN common system.81 The ICSC has 15 members, appointed by the General Assembly.82

2.7  Joint Inspection Unit’s role in the common system 15.19  The JIU,83 the independent external oversight body of the UN system, aims to achieve greater coordination in human resources matters.84 It has prepared a number of reports (p. 509) on the common system.85 There have been divergences of views between the JIU and the ICSC.86

2.8  Appointment and classification 15.20  The power of appointment of staff members lies with the Secretary-General.87 He/ she is directly involved in the appointment of senior staff,88 while recruitment of lower- and mid-level staff is undertaken by the heads of Departments or Offices responsible for programme delivery.89 The process is often prolonged, leading to high vacancy rates, particularly in the field.90 The paramount consideration in the appointment or transfer of staff is the need to secure the ‘highest standards of (p. 510) efficiency, competence and integrity’.91 Preference in appointment, transfer, and promotion is given to internal candidates.92

2.8.1  Geographical distribution 15.21  According to Article 101(3) of the UN Charter, ‘Due regard shall be paid to the importance of recruiting the staff on as wide a geographical basis as possible.’93 At the same time, selection of staff members shall be made without distinction as to race, sex, or religion.94 The General Assembly has adopted ‘desirable ranges’ for the geographical distribution of staff. Three factors are used to calculate these ranges: membership, contribution, and population.95 Member states are characterized as ‘overrepresented’, ‘within range’, ‘underrepresented’, and ‘unrepresented’.96 In reality, of the more than 40,000 staff in the UN Secretariat, only 3,582 are in posts subject to geographical distribution.97 There is a perception that the requirement of geographical distribution and representation applies more broadly, and in practice managers do pay attention to achieving a balanced geographical distribution during recruitment, regardless of whether the post in question is subject to the requirement. Concerns have been expressed as regards the overrepresentation of nationals from Europe and North America at the senior and policymaking levels of the Secretariat.98 The positions of USG and ASG are sometimes in practice reserved for nationals of certain member states or regional groups.99

(p. 511) 2.8.2  Gender 15.22  For many years, men have occupied most of the senior posts within the UN. Efforts have been made by the General Assembly and the Secretary-General to increase the number of women in posts subject to geographical distribution in the Secretariat, especially in senior and policymaking roles.100 In 2010, the UN’s work on gender equality and the empowerment of women was consolidated into a new agency called UN Women.101

2.8.3  National competitive recruitment examination

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15.23  The National Competitive Recruitment Examination (NCRE) was established in 1980; and the examinations were held on an annual basis, targeting the nationals of member states that were not adequately represented in the Secretariat.102 These examinations sought to establish rosters of candidates to fill positions at the P-2 (young professional) level.103 In practice, the process was too slow to meet the demands of the organization and the legitimate expectations of the candidates on the (p. 512) roster.104 The last NCRE examination was held in 2010, and it was replaced with the Young Professionals Programme (YPP) in 2011.105

2.8.4  Secondment 15.24  Secondment has occurred in the UN Secretariat in two senses. First, secondment occurs when UN staff members move from one organization to another for a fixed period, during which they are normally paid by and are subject to the staff regulations and rules of the receiving organization but retain their rights of employment in the releasing organization.106 This type of secondment is uncontroversial.107 Second, it can refer to an individual’s temporary detachment from the public service of their member state in order to be put at the disposal of the UN for a limited period of time. This type of secondment was favoured by Soviet states during and after the establishment of the UN.108 The legality of this practice has been challenged before the ICJ, as well as within the UN internal justice system.109 Both types of secondment are subject to UN salary scales and can be funded on a reimbursable or non-reimbursable basis.110 With the expansion of peacekeeping in the 1990s, the DPKO (p. 513) became increasingly reliant on ‘gratis’ Secretariat staff seconded by member states.111 This practice was later severely restricted by the General Assembly.112

2.8.5  Categories of staff 15.25  The categories of staff in ascending order of seniority are: General Service (GS)-1, GS-2, GS-3, GS-4, GS-5, GS-6, GS-7; Professional (P)-1, P-2, P-3, P-5, P-5; Director (D)-1, D-2; Senior Appointments ASG, USG, and Secretary-General.113 The heads of Department and Offices of the UN Secretariat are usually at the level of USG or ASG.114 Staff having substantive and managerial functions or providing language services are in the Professional and higher categories.115 Administrative support staff and staff engaged in maintenance, security, or technical assistance are in the General Service category.116 Staff members employed in peacekeeping missions are in the Field Service category.117 Staff members in other categories may take competitive examinations for recruitment to the Professional category.118

(p. 514) 2.9  Conditions of service 15.26  The conditions of service of UN staff reflect the need for securing the highest standards of efficiency, competence, and integrity in recruiting staff, with due regard being paid to equitable geographical distribution, as stated in Article 101 of the UN Charter. The conditions of service for staff in the Professional and higher categories are based on the Noblemaire principle.119 Conditions of service for staff in the General Service and other locally recruited categories are founded on the Flemming principle.120 Specific conditions of service are provided to staff to encourage mobility and service in hardship duty stations.121

2.10  Duration of appointment 15.27  Historically, a large percentage of UN staff has had permanent contracts.122 Security of tenure has been seen as vital to the independence of the International Civil Service.123 However, permanent contracts can also be seen as promoting stagnation and as an obstacle to equitable geographical distribution of staff.124 There is an ongoing (p. 515) debate within the UN as to the tensions between security of tenure and the need to have a flexible and mobile workforce. As part of his reform agenda, Secretary-General Kofi Annan From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

proposed the phasing out of permanent contracts and the establishment of three new contractual arrangements.125 Under Secretary-General Ban, long-term ‘continuing contracts’ were introduced after some resistance from member states.126 Most UN staff in the Secretariat have contracts of one year or longer.127 15.28  While the Secretary-General establishes a normal working week and official holidays for each duty station, the whole time of staff members is at the disposal of the SecretaryGeneral.128

2.11  Remuneration and pensions 15.29  The Secretary-General has the authority to fix the salaries of staff members of the Secretariat.129 Nonetheless, the overall approach to remuneration and the review of salary scales are the responsibility of the General Assembly, with the involvement of the ICSC.130 From the outset, remuneration has been fixed (p. 516) according to the Noblemaire principle.131 The base/floor scale is used for annual adjustments.132 Depending on the status of a staff member, the basic salary may be supplemented with a post adjustment133 and special allowances.134 The remuneration of UN staff members is generally not subject to national taxation, but there is a staff assessment applied to the base salary.135 The UN Joint Staff Pension Fund (UNJSPF) was established by the General Assembly in 1949 and provides retirement, death, disability, and related benefits for UN staff and staff of the other organizations admitted to membership in the Fund.136

(p. 517) 2.12  Personal conduct and disciplinary measures 15.30  The parameters of the ethical conduct expected of UN staff members— independence and integrity—are set out in Articles 100 and 101 of the UN Charter.137 The Staff Regulations and Rules elaborate on the duties and obligations of staff.138 Each staff member must make a solemn declaration to exercise functions in loyalty, discretion, and conscience.139 There has been an effort since 2009 to foster a sense of personal responsibility among Secretariat staff through an Accountability System.140 15.31  Staff members may vote in national elections of their respective countries, but may not actively participate in political activities.141 Staff members shall not accept honours, gifts, or remuneration from any government.142 They must avoid conflicts of (p. 518) interest and outside employment.143 Senior staff must file financial disclosure statements144 and sign annual Accountability Compacts.145 Failure by a staff member to comply with obligations under the UN Charter, the Staff Regulations, Staff Rules, relevant administrative issuances, or the standards of conduct expected of an international civil servant may amount to misconduct.146 The decision to launch an investigation into allegations of misconduct and to impose disciplinary measures is within the discretionary authority of the Secretary-General and officials with delegated authority.147 Disciplinary or administrative measures may be imposed on the staff member,148 who may submit an application challenging the imposition of such measures.149

(p. 519) 2.13  Internal justice 15.32  Conflicts between the UN and its staff are resolved through the internal system of justice.150 For many years the system was criticized for being slow, cumbersome, and biased.151 After a major review, a new system was introduced in July 2009, including a professionalized judicial body of first instance with authority to issue binding decisions, with the UNAT 2 as an appellate tribunal.152 Claims of harassment, discrimination, and abuse of authority are handled through a separate process.153

2.13.1  Informal system

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15.33  Staff members are encouraged to use informal channels to resolve disputes.154 Either the staff member with the grievance or the Secretary-General may initiate informal (p. 520) resolution,155 which will be conducted by the Office of the Ombudsman, including mediation.156 A staff member may not file an application with the UN Dispute Tribunal (UNDT) if the dispute arising from a contested decision has already been resolved by an agreement reached through mediation.157

2.13.2  Formal system 15.34  The institutions of the formal internal justice system have been created and amended through resolutions of the General Assembly, even though there is no express provision to this effect in the UN Charter.158 A staff member contesting an administrative decision in the formal justice system may first submit to the Secretary-General a written request for a management evaluation of the administrative decision he/she wishes to challenge.159 The next step may be to file an application with the UNDT, (p. 521) the tribunal of first instance in the two-tier formal justice system.160 The UNDT is composed of three full-time judges in New York, Geneva, and Nairobi, respectively, and two half-time judges.161 In general, cases are decided by a single judge,162 who may order rescission, specific performance, or compensation.163 The judgments of the UNDT are binding upon the parties.164 The staff member or the Secretary-General may appeal a judgment of the UNDT—on certain grounds—to the second tier of the formal system (UNAT 2).165 UNAT 2 is composed of seven judges, who generally sit in New York, with sessions as needed in Geneva and Nairobi.166 The cases are normally reviewed by a panel of three judges and decided by a majority (p. 522) vote.167 The judgments are binding upon the parties and may order rescission, specific performance, or compensation.168 Subject to applications for revision, correction or interpretation, UNAT 2 judgments are final.169 Legal assistance to staff members is provided by professional legal officers in the Office of Staff Legal Assistance (OSLA).170 Unlike with the former UNAT, the Statutes of the UNDT and UNAT 2 do not provide for a procedure for their judgments to be reviewed by the ICJ by way of an Advisory Opinion.171 Nonetheless, for a long time the possibility of ICJ review still existed in the Statute of the Administrative Tribunal of the International Labour Organization (ILOAT).172

(p. 523) 2.14  Safety and security 15.35  International legal protection for UN staff members has developed in a piecemeal manner. The safety and security of UN staff is premised on two principles: that the primary responsibility rests with the host country, and that the UN security management system should be unified, but decentralized to the country level.173 The UN has taken decades to develop a comprehensive approach to staff security; initiatives have been taken after major attacks on UN operations.174 Since 2005, the Department of Safety and Security (DSS) has been mandated to oversee, coordinate, and support the UN security management system.175 (p. 524) 15.36  Staff deployed as members of the military, police, or civilian components of a UN operation, or as officials or experts on mission, are covered by the 1994 Convention on the Safety of United Nations and Associated Personnel.176 The Optional Protocol to the Convention entered into force in August 2010.177

2.15  Staff representative bodies 15.37  Staff representative bodies are intended to maintain contact and communication between the Secretary-General and the staff.178 All staff members assigned to the Secretariat in New York are members of the UN Staff Union, but few staff members are contributing members of the Union.179 Coordination on matters of common interest across the UN System is undertaken by the UN International Civil Servants Federation (UNISERV).180 Negotiations between staff representatives and the UN administration are

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facilitated by the Staff-Management Coordination (p. 525) Committee (SMCC)181 and the Joint Negotiation Committee at Headquarters (JNC).182

3.  The Secretary-General 15.38  The Secretary-General is the chief administrative officer of the organization183 and performs functions entrusted to him/her by the principal organs.184 Beyond this, the Secretary-General may take political initiatives to maintain international peace and security.185 He/she is independent from any government or any authority external to the organization.186 15.39  The responsibilities of the Secretary-General have increased de facto through mandates given by resolutions of the Security Council and the General Assembly. His/her responsibilities—and those of the Secretariat staff—often go beyond those listed in the UN Charter187 and may also reflect the advancing of his/her own agenda and themes of interest.

(p. 526) 3.1  Appointment 15.40  Article 97 of the UN Charter briefly states that ‘The Secretary-General shall be appointed by the General Assembly upon the recommendation of the Security Council.’188 In practice, the Security Council—in particular the permanent members—has a strong influence over the appointment process.189 Sometimes a Secretary-General has surprised member states with his interpretation of the role.190 15.41  The exact procedure for appointment has had to develop through practice. The ‘recommendation’191 by the Security Council is discussed in private meetings, and the vote may be taken by secret ballot or by acclamation.192 It is a decision that is subject to the veto of the permanent members.193 The President of the Security Council communicates the decision to the President of the General Assembly,194 but no (p. 527) longer officially communicates the recommendation to the person chosen.195 The General Assembly appoints the incoming Secretary-General in a public meeting by acclamation.196 In 2016, the General Assembly passed a consensus resolution submitted by its President, referring to the recommendation of the Security Council, noting also that the selection and appointment process in 2016 was guided by the principles of transparency and inclusivity, including by organizing informal dialogues with all candidates.197 15.42  The 2016 selection process was the most transparent in the history of the UN. General Assembly Resolution 69/321 (2015) set out a number of requests and observations of the General Assembly as to the selection and appointment of the Secretary-General in 2016, including providing member states with comprehensive details on all candidates, and improving the gender and regional balance among candidates.198 The process of selection and appointment also involved the participation of candidates in public debates and informal dialogues with the members of the General Assembly and Security Council.199 (p. 528) 15.43  A number of norms have emerged as to the national origin of the candidate for Secretary-General.200 A proposal in 1960 to replace the post of Secretary-General with a ‘troika’ of three persons was rejected.201

3.2  Term of office 15.44  The UN Charter is silent as to the term of office of the Secretary-General.202 The term of office of the first Secretary-General was fixed by General Assembly resolution for a period of five years.203 It is now decided by General Assembly resolution at each appointment.204

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3.3  Re-election 15.45  As with the term of office, the UN Charter is silent as to the possibility of reelection. The possibility of a second term of office was raised in General Assembly Resolution 11(I) (1946) in respect of the first Secretary-General.205 The procedures for the re-election of the Secretary-General have evolved through practice.206 In general, the (p. 529) Security Council makes a recommendation that is approved by the General Assembly by acclamation.207

3.4  Termination of office and extension or replacement 15.46  The resignation of the Secretary-General or the end of his/her term for any reason is not regulated by the UN Charter. The practice has evolved over time, including the extension of the term of Trygve Lie208 and the appointment of Sithu U Thant as Acting Secretary-General.209

3.5  Administrative functions 15.47  The Secretary-General’s administrative functions210 derive from the status of ‘chief administrative officer of the Organization’, provided for in Article 97 of the UN Charter, and his/her support to the principal organs described in Article 98.

3.5.1  Meetings of principal organs 15.48  According to Article 98 of the UN Charter: The Secretary-General shall act in that capacity [as ‘chief administrative officer of the Organization’] in all meetings of the General Assembly, of the Security Council, of the Economic and Social Council, and of the Trusteeship Council, and shall perform such other functions as are entrusted to him by these organs. (p. 530) 15.49  The Secretary-General plays an important role in preparing the agenda and documents, notifying the participants, attending the meetings, and following up on the decisions taken by the principal organs. He/she often delegates a representative to attend various meetings.211 He/she has the right to place certain items for consideration on the agenda of UN organs.212 The main duties of the Secretary-General are set out in the Rules of Procedure of each organ.213 The Secretary-General may occasionally take the opportunity of attending meetings of principal organs to make statements on important substantive matters.214 15.50  In addition to his/her personal duties,215 the Secretary-General provides and directs the staff required by the principal organs.216 He/she is responsible for convoking special sessions of the General Assembly at the request of the Security Council or of a majority of the members of the UN.217 The Secretary-General also can participate in meetings of commissions, committees, sub-committees, and subsidiary bodies.218 (p. 531) 15.51  From time to time, the Secretary-General will directly address the staff of the Secretariat through ‘town hall’ meetings that are often broadcast to other UN duty stations. This has been done to celebrate awards, explain reforms, and to mourn the loss of colleagues.219

3.5.2  Communications 15.52  The Secretary-General is the main channel of communication from and to the UN. He/she is responsible for notifying the relevant UN organs of those communications that concern them.220 Tasks include circulating the text of resolutions, discussion protocols, draft conventions, and other documents to member states and other international organizations, receiving their comments, and transmitting them to UN organs.221 The UN Charter assigns specific responsibility to the Secretary-General to notify the General

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Assembly of matters relating to international peace and security being dealt with by the Security Council.222

3.5.3  Coordination 15.53  The Secretary-General is central to the coordination of the activities of the Secretariat (internal coordination), and to the coordination between the UN and the specialized agencies and intergovernmental bodies (external coordination).223 As regards internal coordination, the Secretary-General is involved in setting the calendar of conferences and meetings,224 planning work programmes and setting priorities, integrating UN (p. 532) activities in various thematic or substantive areas,225 and supervising the services (including documentation) provided to UN organs.226 Internal coordination is facilitated through the Senior Management Group (SMG) and a set of Executive Committees.227 External coordination with the specialized agencies is also the domain of the General Assembly and ECOSOC.228 The Secretary-General nonetheless undertakes external coordination at the request of these organs and in his/her capacity as Chair of the CEB.229

(p. 533) 3.5.4  Finances 15.54  The Secretary-General is responsible for the preparation and implementation of the budget of the organization.230 He/she notifies member states of their assessed contributions and collects such contributions. The Secretary-General instructs UN organs on the financial implications of proposed activities. He/she administers trust funds and special accounts, and supervises the collection of voluntary contributions.231 The Secretary-General may be authorized by the General Assembly to enter into commitments to meet unforeseen and extraordinary expenses, and to borrow money from special funds or governmental sources.232 He/she may also, within limits, restructure the Secretariat by transferring resources within and between Departments and Offices.233

3.5.5  Reporting 15.55  Article 98 of the UN Charter requires the Secretary-General to make an annual report to the General Assembly on the work of the organization.234 In addition, he/she prepares numerous reports and technical studies at the request of the principal organs, or on his/her own initiative to facilitate the work of those organs.235

3.5.6  Human resources 15.56  As chief administrative officer of the organization, the Secretary-General appoints staff, assigns them to posts, directs their work, and issues subsidiary rules on all (p. 534) aspects of human resources management.236 Nonetheless, the General Assembly retains ultimate control over staff matters.237 Although the UN Charter envisages the General Assembly laying down general rules and the Secretary-General applying such rules to specific cases, the General Assembly has increasingly been dealing with the particulars of administering the organization.238 For example, the General Assembly has, through its practice, diluted the Secretary-General’s power over human resources by assuming responsibility in respect of the appointment of certain senior officials and by assigning the power to administer the staff of certain subsidiary organs financed from voluntary contributions to the Executive Heads of these organs.239

3.6  Legal functions 3.6.1  Treaty depositary 15.57  The Secretary-General is the principal depositary of multilateral treaties worldwide.240 The Secretary-General’s policy has been in principle to restrict the assumption of (p. 535) depositary functions to open multilateral treaties of worldwide interest adopted by the General Assembly or concluded by plenipotentiary conferences convened by the UN.241 In practice, the Secretary-General has assigned all depositary From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

functions to the UN OLA.242 The depositary practice is guided by the provisions of the treaty concerned; customary treaty law, including as it may be deemed codified by various conventions on the matter; and the general principles flowing from pertinent resolutions or decisions of the General Assembly and other organs of the UN.243 The practice regarding treaties is publicized on an ongoing basis.244 (p. 536) 15.58  The depositary functions245 include checking the draft final clauses before the adoption of the treaty,246 checking all language versions of the treaty text at the time of adoption, receiving the authentic texts as adopted,247 keeping the original of the treaty, preparing and circulating certified true copies, organizing the ceremony for the opening for signature of the treaty,248 verifying that signatures, instruments, and other communications (including reservations) are in due and proper form,249 and informing the parties and states entitled to become parties, through depositary notifications, of any treaty action250 and of the entry into force of the treaty. The depositary functions can lead to political and legal complications surrounding, for example, declarations,251 reservations,252 succession to treaties,253 (p. 537) and determining which entities are ‘states’ for the purpose of participating in treaties.254 15.59  The Secretary-General also encourages universal participation in treaties.255

3.6.2  Legal advice 15.60  In addition to his/her role as depositary of multilateral treaties, the SecretaryGeneral may be asked by UN organs for advice on procedural or legal questions, and to (p. 538) prepare a legal opinion on specific questions.256 In practice these questions are delegated to the Legal Counsel, and may even come directly to the Legal Counsel or the ASG in the OLA.257 The actual involvement of the Secretary-General in the provision of legal advice is usually minimal.258 Most legal advice is provided by the Office of Legal Counsel and the General Legal Division.259 In recent years, providing advice on legal issues associated with the establishment and operation of ad hoc tribunals has taken up a substantial proportion of the time of the Office of Legal Counsel.260 (p. 539) 15.61  The Secretary-General also has special administrative functions listed in the Statute of the ICJ, including acting as a channel for communication.261

3.6.3  Immunities 15.62  If a court case is brought in a national legal system against a person claiming to be a UN official or an expert on mission for the UN, the Secretary-General determines whether the person does in fact enjoy such a status (or did at the relevant time) and whether he/she enjoys immunity from legal process in respect of the subject matter of that case.262 The Secretary-General specifies the categories of person who are granted immunity from legal process as officials of the UN,263 and he/she has the right and duty to waive the immunity of officials and experts on mission after considering the interests of justice and of the UN.264

(p. 540) 3.7  Representational functions 15.63  The Secretary-General represents the Secretariat, the UN, and, at times, the entire UN System.265 He/she acts on behalf of the organization in legal actions; and he/she may bring an international claim against a government on behalf of the UN,266 or represent the organization before a national court.267 Inter-organization agreements and agreements with member states are also undertaken by the Secretary-General.268 Agreements relating to peacekeeping forces are concluded under the Secretary-General’s authority.269 The Secretary-General also represents the UN by receiving the credentials of members of delegations.270

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3.8  Political functions 15.64  Article 99 of the UN Charter provides: ‘The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.’271 This forms the basis for much of (p. 541) the Secretary-General’s political functions.272 In practice, Secretaries-General have expressly invoked Article 99 on very rare occasions.273 Article 99 has given informal authority to the Secretary-General to engage in political functions to maintain international peace and security.274 The Secretary-General has also performed political (p. 542) functions within the scope of assignments under Article 98.275 Exercising the powers under Article 99 requires the Secretary-General to have access to intelligence information and early-warning systems.276 15.65  The suggestion has been made that it would enhance the Secretary-General’s dispute settlement role if he/she were empowered to request an Advisory Opinion from the ICJ.277 This has not been realized.278

(p. 543) 3.9  Deputy Secretary-General 15.66  The General Assembly established the post of Deputy Secretary-General in 1998 at the proposal of Secretary-General Kofi Annan.279 The Deputy Secretary-General is responsible for overseeing the work of the UN in the economic, social, and development fields, and on issues of management reform.280

Footnotes: 1

  Art 7(1) reads: ‘There are established as the principal organs of the United Nations: a General Assembly, a Security Council, an Economic and Social Council, a Trusteeship Council, an International Court of Justice, and a Secretariat.’ Chapter XV of the UN Charter is entitled ‘The Secretariat’. Art 2 of the Covenant of the League of Nations had stated that ‘The action of the League…shall be effected through the instrumentality of an Assembly and of a Council, with a permanent Secretariat.’ The phrasing implies that the League Secretariat was subordinate to the Assembly and Council, but in reality the Secretariat functioned as a principal organ of the League of Nations (Chesterman, ‘Article 97’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), 1991, at 1993). 2

  Bindschedler, ‘Internationale Organization’ in Wörterbuch des Völkerrechts (vol II, eds, Strupp and Schlochauer, 1961), 70, at 76–8. See also Schwob, Les organs integers de caractères bureaucratique dans les organisations internationales. Essai de typologie des organs administrates et exécutifs (1987); Langrod, The International Civil Service: Its Origins, Its Nature, Its Evolution (1968), 34–40. The Universal Postal Union (established in 1874) and the International Telecommunication Union (1865) each had a permanent organ dedicated to administration, known as the Bureau. 3

  The International Institute for Agriculture (established in 1905 and the precursor to the Food and Agricultural Organization) was the first international organization to provide formally for the independence of secretariat staff. Art 2 of its Staff Regulations stated that staff members ‘could not seek or receive instructions from anyone but their own superiors, to whom they were responsible’. These staff members were the first true international civil servants since, whatever their nationality, they were not to be considered representatives of their respective countries. Langrod, n 2, 42; Feld and Kilbourne, ‘The UN Bureaucracy: Growth and Diversity’ (1977) 43 International Review of Administrative Sciences 321, at 321.

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4

  The first Secretary-General of the League, Sir Eric Drummond, was the driving force behind this vision. He came from the tradition of the British civil service. He believed the Secretariat should be international in two ways: in its composition and in its responsibilities (Bailey, The Secretariat of the United Nations (rev edn, 1964), 18). He also believed the Secretariat should eschew political judgements and actions (Hammarskjöld, ‘The International Civil Service in Law and in Fact’, Lecture delivered to Congregation at Oxford University, 30 May 1961). 5

  The first sentence of Art 97 of the UN Charter provides: ‘The Secretariat shall comprise a Secretary-General and such staff as the Organization may require.’ 6

  UN Charter, Art 101(1). See also section 3.1, ‘Appointment’.

7

  This phrase occurs in the third sentence of Art 97.

8

  The ‘UN organization’ comprises the six principal organs: the General Assembly, the Security Council, the Economic and Social Council (ECOSOC), the Trusteeship Council, and the International Court of Justice (ICJ), as well as the Secretariat. See also ch 2, ‘The General Assembly’, on principal organs. The ‘UN System’ is even larger and is made up of the UN organization, the specialized agencies provided for in Art 57 of the Charter, and a number of Programmes established by the General Assembly under its authority derived from Art 22 of the Charter. The International Atomic Energy Agency (IAEA) is also part of the UN System, even though it is not strictly a specialized agency; the relationship agreement between IAEA and the UN is contained in GA Res 1145 (XII) (1957). See Chief Executive Board, Secretary-General’s High-Level Panel on UN System-Wide Coherence in the Areas of Development, Humanitarian Assistance, and the Environment, Basic Information on UN System Organizations: Mission, Structure, Financing and Governance (2007). 9

  As of August 2016, the global staff of the Secretariat numbered 40,131 (UN Doc A/ 71/360, p 11). In 1946, there were 1,500 staff. 10

  A deliberate choice was made by the Preparatory Commission to have one secretariat for all principal political organs instead of four autonomous secretariats attached to the General Assembly, Security Council, ECOSOC, and Trusteeship Council, due to the risk of divided loyalties, rivalry, and overlapping spheres of responsibility (First Report of the Advisory Group of Experts on administrative, personnel and budgetary questions to the Secretary-General of the United Nations submitted by the Advisory Group to the SecretaryGeneral by letter dated 9 March 1949, p 4). The secretariat for the fifth principal organ, the ICJ, is separate: see ch 29, ‘The International Court of Justice’. 11

  Oddly, the Security Council is not mentioned, although it obviously falls within the purview of the expression ‘other organs of the UN’. 12

  The risk of duplication of work has increased with the expansion of the Secretariat. GA Res 56/253 (2001) asked the Secretary-General, with the assistance of the Office of Internal Oversight Services (OIOS), to review administrative tasks, procedures, and policies with a view to eliminating duplication and unnecessary and complex bureaucratic procedures and practices within all departments and entities of the Secretariat, and to ensure that the UN organization is managed in an integrated manner in order to eliminate duplication. The resulting report (UN Doc A/58/211 (2003)) focused on duplication in travel, procurement, and the administration of staff entitlements. See also UN Doc A/60/342 (2005) (Report by Department of Management on the plan for the reduction of duplication) and UN Doc A/ 62/7/Add.29 (2007) (Report of the Advisory Committee on Administrative and Budgetary Questions (ACABQ) on the duplication and overlap of functions between the Department of Political Affairs (DPA) and the Department of Peacekeeping Operations (DPKO) with respect

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to planning for the establishment of new field missions and provision of political and substantive direction). 13

  See Report of the Secretary-General on the composition of the Secretariat, UN Doc A/ 64/352 (2009), table 5, pp 22–3. 14

  Economic Commission for Africa, Economic Commission for Europe, Economic Commission for Latin America and the Caribbean, Economic and Social Commission for Asia and the Pacific, and Economic and Social Commission for West Asia (UN Doc A/71/360 (2016), table 4, pp 19–22). 15

  Such missions are administered by the Department of Field Support (DFS).

16

  At the beginning, ICTY and ICTR staff were not considered Secretariat staff. This changed only after intervention by the Staff Union, which pointed out that ICTY and ICTR staff had no priority in applying for Secretariat posts unless they were considered Secretariat staff. The staff of the ICJ, however, are not considered part of the Secretariat. This situation is anomalous given that the ICJ is a principal organ of the UN; but it reflects the perceived need for a judicial body to be wholly independent of the other organs. Note, however, that the ICTY and ICTR staff members were, eventually, considered part of the Secretariat, and likewise the staff of the IRM. See also ch 29, ‘The International Court of Justice’, section 4.3, ‘The Court’s autonomy over staff matters’. 17

  The Department of Management, in particular the Office of Human Resources Management (OHRM), has the general delegation of authority from the Secretary-General to appoint staff. The OHRM has in turn delegated authority for recruitment to offices away from Headquarters. Until the reform of human resources in July 2009, recruitment processes were examined by the Central Review Body. Since July 2009, major duty stations have local bodies conducting such reviews, and the DFS has established Field Review Bodies to screen candidates and to ensure compliance with rules and policies. For many peacekeeping missions, a person has to be on a roster that is administered by the Secretariat. In order to be on the roster, a person has to pass a written test and oral interviews. Thus, many positions in peacekeeping missions are in a way controlled by the Secretariat. 18

  UN Doc A/70/360 (2009), table 3, p 17 and para 4. A number of posts in the ITC are financed jointly by the UN from the regular budget and by the WTO. 19

  The UNRWA has developed it own Area Staff Regulations, since 99 per cent of its staff are locally recruited Palestinians (Cod./A/59/Rev.2). See also, Stöckl, ‘Article 101’ in Simma et al (eds), n 1, 2053, at 2071, fn 118. 20

  GA Res 2029 (XX) (1965) and 2688 (XXV) (1970) (UNDP); GA Res 319 (IV) (1949), 538 (VI) (1952) and 62(I) (1946) (UNHCR); GA Res 57 (I) (1946) and 802 (VIII) (1953) (UNICEF); GA Res 302 (IV) (1949) (UNRWA). 21

  Offices tend to have fewer staff members than Departments. The Office of Legal Affairs (OLA) is as large as some other Departments. It was originally called ‘the Legal Department’ until 1955, but was later entitled ‘Office’ to match the US Office of the Legal Adviser. As at January 2017, the Secretariat included the following Offices: Executive Office of the Secretary-General, OIOS, OLA, Office for Disarmament Affairs, Office for the Coordination of Humanitarian Affairs, Ethics Office, Office of Administration of Justice, Office of the UN Ombudsman and Mediation Services, Peacebuilding Support Office, Global Compact Office, United Nations Office for Partnerships, United Nations Office on Sport for Development and Peace, and the United Nations Support Office for Somalia.

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The Departments comprised the DPA, DPKO, DFS, Department of Economic and Social Affairs (DESA), Department of General Assembly and Conference Management (DGACM), Department of Public Information (DPI), Department of Safety and Security (DSS), and the Department of Management. Some Departments have offices within them, such as the Office of Programme, Planning, Budget and Accounts, the OHRM, the Office of Central Support Services, and the Office of Information and Communication Technology inside the Department of Management. 22

  The number of levels varies and can include centres (minimum of 20 Professional posts headed by a D-2 or Assistant Secretary-General (ASG)), divisions (minimum of 15 Professionals headed by, or, in regional commissions, 8 Professionals headed by, a D-1), branches/services (minimum of 8 Professionals headed by a D-1), sections (minimum of 4 Professionals headed by a P-5 or P-4) and units (minimum of 4 posts headed by a chief of unit). The number of posts is indicative only and based on The Organization Manual: A Concise Guide to the Functions and Organization of the Secretariat, ST/SBG/Organization, 8 August 1996, para 19, which was superseded (omitting the references to numbers of posts) by ST/SGB/1997/5 as amended by ST/SGB/2002/11. 23

  See n 16.

24

  As of 2017, these were the Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and Small Island Developing States; Office of the Special Adviser on Africa; Office of the Special Adviser to the Secretary-General on the Prevention of Genocide; Office of the Special Adviser to the Secretary-General on the Responsibility to Protect; Office of the Special Representative of the Secretary-General for Children and Armed Conflict; Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict; Office of the Special Representative of the Secretary-General on Violence against Children; Office of the Special Adviser to the Secretary-General (sometimes styled the Special Adviser for Conflict Prevention, including in Burundi); Office of the Special Adviser to the Secretary-General on Cyprus; Office of the Special Envoy of the Secretary-General for the Great Lakes Region; Office of the Special Envoy of the Secretary-General for the Implementation of Security Council Resolution 1559 (2004); Office of the Special Envoy of the Secretary-General for the Sudan and South Sudan; Office of the Special Envoy of the Secretary-General for Syria; Office of the Special Envoy of the Secretary-General for Yemen. See at http://www.un.org/en/sections/about-un/secretariat/ index.html. 25

  The Economic and Social Commission for Asia and the Pacific (ESCAP), Economic and Social Commission for West Asia (ESCWA), Economic Commission for Africa (ECA), Economic Commission for Europe (ECE), and Economic Commission for Latin America and the Caribbean (ECLAC) (ibid). 26

  The offices in Geneva, Nairobi, and Vienna (ibid). The UN Secretariat provides secretariat services of the UN human rights treaty monitoring bodies in Geneva. 27

  Office of the UN High Commissioner for Human Rights, UN Office for Disaster Risk Reduction, and the UN Office on Drugs and Crime (ibid). 28

  The Counter-Terrorism Committee Executive Directorate (CTED) may be counted, though there is some debate about this. 29

  See, eg, the various mutations of the Office for Disarmament Affairs, which was originally established in 1982 upon the recommendation of the General Assembly’s second special session on disarmament (SSOD II) and functioned as a Department until 1992. A new Department of Disarmament Affairs was established in January 1998 as part of the Secretary-General’s programme for reform (UN Doc A/51/950 (1997)). From 1992 to 1997, it was a Centre under the DPA. It then became the Department for Disarmament Affairs

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until 2007, when it was changed to the Office for Disarmament Affairs (UNODA) headed by a High Representative with the rank of USG (GA Res 61/257 (2007)). 30

  UN Charter, Arts 97 and 101. See further section 2.8, ‘Appointment and classification’. The distinction between USG and ASG is not always clear in practice. 31

  Chiefs tend to be in charge of sections or units, whereas Directors head divisions. The Organization Manual: A Concise Guide to the Functions and Organization of the Secretariat, n 22. 32

  Art 102(1) of the UN Charter refers to the role of the Secretariat in registering and publishing treaties and international agreements entered into by any member of the UN. The Charter also refers to some functions of the Secretary-General. Some of these functions involve the Secretariat (eg, the organization of meetings), but other duties of the SecretaryGeneral are performed independently of the rest of the Secretariat and are his/her sole responsibility (eg, bringing matters to the attention of the Security Council). These latter duties are typically performed with counsel and assistance from his/her immediate staff: see generally Chesterman, n 1, 2000–1. 33

  See at http://www.un.org/en/sections/about-un/secretariat/index.html.

34

  The various reform proposals made by Secretary-Generals over the years have usually included the restructuring of the Secretariat and the removal or addition of functions. See further section 1.6, ‘Efforts to reform the Secretariat’. For example, Kofi Annan’s 1997 reform document proposed reorganizing the Secretariat’s work programme among five areas: peace and security, economic and social affairs, development cooperation, humanitarian affairs, and human rights (UN Doc A/51/950 (1997), para 28). 35

  See, eg, Rules of Procedure of the General Assembly, UN Doc A/520/Rev.17 (2007), Rule 47: ‘The Secretariat shall receive, translate, print and distribute documents, reports and resolutions of the General Assembly, its committees and its organs; interpret speeches made at the meetings; prepare, print and circulate the records of the session; have the custody and proper preservation of the documents in the archives of the General Assembly; distribute all documents of the Assembly to the Members of the United Nations, and, generally, perform all other work which the Assembly may require.’ See also Rules of Procedure of the Economic and Social Council (UN Doc E/5715/Rev.2 (1992)), Rule 29. See further Chesterman, n 1, 1993; Schermers and Blokker, International Institutional Law: Unity within Diversity (4th rev edn, 2003), 318–19. This work involves, eg, the DGACM and the Department of Management. 36

  See further, ch 14, ‘The Financing of the United Nations’.

37

  The UN has a DPI, established by GA Res 13(I) (1946). Information functions are also conducted by staff within Departments and Offices (eg, Office of the Spokesperson of the Secretary-General). The DPI has established 63 UN Information Centres worldwide. Information functions are also undertaken by the General Assembly Committee on Information (GA Res 33/115 C (1978)). See also, Schermers and Blokker, n 35, 320–1. 38

  Information is transmitted using radio, television, print, film, and the Internet. The Strategic Communications Division of the DPI develops communications strategies and campaigns to promote UN priorities. 39

  This can range from agendas and related documents (reports, studies, and summaries) to legal opinions produced by the OLA (see the UN Juridical YB for a selection of legal opinions issues each year).

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40

  A meeting or conference will often appoint a rapporteur from among its members, but the Secretariat staff assist the rapporteur and may even draft the majority of the report (Schermers and Blokker, n 35, 321). 41

  The Secretariat has inherent powers to engage in fact-finding, provided that the member states concerned have consented ([1973] UN Juridical YB 162–3; Schermers and Blokker, n 35, 322). 42

  Such tasks are often undertaken by the DESA or the OLA.

43

  According to Art 102(1) of the UN Charter: ‘Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.’ Treaties that are registered with the Secretariat are, with certain exceptions, published in the UN Treaty Series, together with related actions, such as declarations, reservations, objections, etc. See also section 3.6.1. 44

  The OLA, especially the Codification Division. In this regard, the support provided by the Codification Division to the work of the Sixth Committee of the General Assembly and of the International Law Commission is very important. 45

  The United Nations Office for the Coordination of Humanitarian Affairs (OCHA); UNHCR; and the International Strategy for Disaster Reduction (ISDR). Humanitarian action is no longer just in response to wars or natural disasters. The UN is also involved in coping with the humanitarian impact of climate change, involved in demining, concerned with global food security, and dealing with the impact of sanctions. 46

  The DSS. This function has taken on increased importance due to the expansion of peacekeeping, the UN’s involvement in peacebuilding territorial administration, and the targeting of UN staff and facilities, as seen in the bombing of the Canal Hotel in Baghdad on 19 August 2003, the bombing of the UN complex in Algiers on 11 December 2007, and the attack by suicide bombers on a guesthouse used by UN staff in Kabul on 28 October 2009. 47

  Electoral assistance has shifted between the DPKO and the DPA. In its 46th session, the General Assembly mandated the creation of a small unit to support the new role of Focal Point for electoral assistance activities (GA Res 46/137 (1991)). The unit was established within the newly formed DPA. In early 1994, the unit was transferred to the DPKO in an effort to rationalize the functions of both departments and to consolidate those Secretariat units working directly with the field. During this period, the unit was renamed the Electoral Assistance Division (Report of the Secretary-General, UN Doc A/49/675 (1994)). In July 1995, the Electoral Assistance Division was returned to the DPA. The UN provides seven basic types of electoral assistance: (i) organization and conduct of elections; (ii) supervision; (iii) verification; (iv) coordination and support for international observers; (v) support for national observers; (vi) observation; and (vii) technical assistance (Report of the SecretaryGeneral UN Doc A/49/675 (1994), Annex III, para 6). See ch 20, ‘Electoral Assistance’. 48

  The UNODA. The UN’s Programme on disarmament was established in 1998 with a focus on weapons of mass destruction. It also covers conventional arms, especially landmines and small arms, which have been the weapons of choice in recent conflicts. 49

  The DPKO and DFS. Peacekeeping operations have become more complex over time, with functions expanding to include the implementation of comprehensive peace agreements and assistance with establishing the conditions for sustainable peace. See further, ch 27, ‘Peacekeeping and Other Peace Operations’. The relatively recent establishment of the DFS (see ch 14, section 2.2.1, ‘Department of Field Support’) has

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created a new entity for managing the logistics of peacekeeping operations, which were originally managed by the DPKO. 50

  See de Ginestel, ‘La réforme des nations unies et l’autonomie du secrétariat’ (2006) 7 Annuaire français des relations internationales 909; Fröhlich, ‘The Ironies of UN Secretariat Reform’ (2007) 13 Global Governance 151. 51

  An example of an independent body suggesting reforms is the Independent Inquiry Committee (IIC), which issued several reports on the administration and management of the Oil-for-Food Programme in 2004–6. The reports identified management deficiencies throughout the Secretariat, especially in procurement and audit functions: see, eg, IIC Report on the Management of the UN Oil-for-Food Programme, 7 September 2005, vols III and IV. See also the Report of the International Law Association Study Group on United Nations Reform, United Nations Reform through Practice (2011). 52

  In 2004, following allegations of fraud and corruption regarding the Oil-for-Food Programme on the part of UN officials and agents, as well as contractors, including entities that have entered into contracts with the UN or with Iraq, the Secretary-General appointed an independent inquiry. The Security Council (SC Res 1538 (2004)) endorsed the inquiry and called for full cooperation. In 2005, the UN launched its own investigations through the OIOS into peacekeeping procurement, following claims of mismanagement and corruption. The resulting reports, as well as the results of an internal staff survey revealing lack of trust in management, led to the creation of the Ethics Office, an independent audit committee, and a review of the OIOS’s resources and mandate (UN Doc AP/2005/600/20 and UN Doc A/ 60/846/Add.5 (2006)). Evidence of sexual abuse by peacekeepers led to the introduction of a ‘zero tolerance’ policy on sexual abuse by peacekeepers in the Secretary-General’s bulletin on special measures (ST/SGB/2003/13), ‘A comprehensive strategy to eliminate future sexual exploitation and abuse in United Nations peacekeeping operations’ prepared by His Royal Highness Prince Zeid Ra’ad Zeid Al-Hussein of Jordan at the request of the SecretaryGeneral (UN Doc A/59/710 (2005)), and the report of the Secretary-General on special measures for protection from sexual exploitation and sexual abuse (UN Doc A/60/861 (2006)). ‘Conduct and Discipline Teams’ were established at UN Headquarters and in some peacekeeping missions. The UN has also introduced different Standards of Conduct, applicable to Civilian Personnel (including UN staff members, UN Volunteers, Consultants, and Contractors); Uniformed Personnel (military and police); and specific missions. 53

  Part of the 2006–7 budget was made conditional on the implementation of management reform, largely due to pressure from the US. See further ch 14, ‘The Financing of the United Nations’, on this event. The General Assembly subsequently adopted some reforms in July 2006 regarding the Ethics Office, the OIOS, procurement training, and the new post of Chief Information Technology Officer (UN Doc A/C.5/60/L.67 (2006) and GA Res 60/283 (2006)). 54

  As of 2004, 60 per cent of the 88 reforms proposed in 1997 and 38 per cent of the 66 reforms proposed in 2002 had been implemented (US Government Accountability Office (GAO) Report GAO-04-339 United Nations: Reforms Progressing, but Comprehensive Assessments Needed to Measure Impact (2004)). See also GAO Report GAO-07-14, Management Reforms Progressing Slowly with Many Awaiting General Assembly Review (2006); GAO Report GAO-08-84, Progress of Management Reform Efforts has Varied (2007); GAO Report GAO-08-2467, Management Reforms and Operational Issues (2008). See also the rejection of some of Secretary-General Annan’s 2006 proposed reforms in GA Res 60/260 and UN Doc A/60/831.

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55

  Hammarskjöld abolished the rank of Assistant Secretary-General, replacing it with the rank of Under-Secretary and enhanced the independence of the Secretariat by removing the US Federal Bureau of Investigation from the premises of the UN (UN Docs A/2554 (1953) and A/2731 (1954); and GA Res 784(VIII) (1953), 886 (IX) (1954), and 887 (IX) (1954)). See Jonah, ‘Secretariat: Independence and Reform’ in The Oxford Handbook on the United Nations (eds Weiss and Daws, 2007), 160, at 162. 56

  Memorandum of the Secretary-General on the administration of the United Nations, UN Doc A/2214 (1952). 57

  Secretary-General U Thant replaced the tier of Under-Secretaries with two tiers—USGs and ASGs—and promoted the recruitment of nationals from developing countries (UN Doc A/C.5/1128 (1967) and GA Res 2369 (XXII) (1967)). See Schwebel, The Secretary-General of the United Nations: His Political Powers and Practice (1952), 84 and 87. 58

  Waldheim established the new post of Director-General for Development and International Economic Cooperation, since abolished (Sutterlin, ‘The United Nations Secretary-General as Chief Administrator’ in The Challenging Role of the UN SecretaryGeneral: Making ‘the Most Impossible Job in the World’ Possible (eds Rivlin and Gordenker, 1993), 49). 59

  In 1992, Boutros-Ghali abolished the post of Director-General for Development and amalgamated various political offices and departments into the DPKO and the DPA (Jonah, n 55, 163). 60

  As he spent his career in the Secretariat, Kofi Annan was well placed to see the reform needs of the organization, and he took early action in this regard. In 1997, Annan introduced his reform agenda in his report A Programme for Reform (UN Doc A/51/950 (1997), Add.1, Add.2, Add.3, Add.4, Add.6, Add.7). It led to the new post of Deputy Secretary-General, the creation of the Department of Economic and Social Affairs from three existing departments, and the consolidation of two separate programmes into the Office on Drugs and Crime. The Centre for Human Rights was subsumed into the Office of the High Commissioner for Human Rights. One thousand posts that had not been filled in 1996 were eliminated. See also at http://www.un.org/en/strengtheningtheun/index.shtml. In 2002, Annan put forward An Agenda for Further Change (UN Doc A/57/387 (2002), Corr 1), which proposed restructuring the DPI, closing a number of UN Information Centres, improving the working methods of the Department of General Assembly and Conference Management, and establishing an Ombudsman’s Office. Changes proposed for human resources management included a web-based recruitment system, empowering programme managers to select their own staff, and encouraging mobility between duty stations and functions. In 2005, Annan published In larger freedom: towards development, security and human rights for all (UN Doc A/59 (2005)). As regards reform to the Secretariat, the SecretaryGeneral proposed establishing a Policy Committee to advise the Secretary-General on issues requiring strategic guidance and cross-cutting thematic policy decisions, and a Management Committee to consider reform and management issues. He requested a onetime staff buyout to rejuvenate the staffing pool. He also proposed a comprehensive review of mandates older than five years by the General Assembly, to better align resources with the priorities of the UN. The 2005 World Summit Outcome Document (GA Res 60/1 (2005)) had requested the Secretary-General to provide proposals for implementing management reforms to the General Assembly for consideration and decision. This was done in the report Investing in the United Nations: For a Stronger Organization Worldwide in 2006 (UN Doc A/60/692),

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which proposed further changes to the recruitment system and mobility, streamlining of contractual arrangements, and harmonizing conditions of service. 61

  The section on management reform in the document Building a Stronger UN for a Better World: The Secretary-General’s Vision (October 2008) was focused on improving accountability and oversight. 62

  Art 100 sets out obligations that lie on both the staff and the member states: 1.  In the performance of their duties the Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization. They shall refrain from any action which might reflect on their position as international officials responsible only to the Organization. 2.  Each Member of the United Nations undertakes to respect the exclusively international character of the responsibilities of the Secretary-General and the staff and not to seek to influence them in the discharge of their responsibilities.

63

  ST/SGB/2002/18.

64

  See section 1.3, ‘Scope and extent of the Secretariat’.

65

  This power is derived from Art 101(1) of the UN Charter: ‘The staff shall be appointed by the Secretary-General under regulations established by the General Assembly.’ The original Staff Regulations were adopted by GA Res 590 (VI) (1952). See UN Staff Regulations and Rules, ST/SGB/20014/1. The Staff Regulations ‘embody the fundamental conditions of service and the basic, rights and duties of the United Nations Secretariat’ (ST/ SGB/2014/1, 7). They may be supplemented or amended by the General Assembly without prejudice to the acquired rights of staff members (Reg 12.1). It is thus impermissible to issue regulations that reduce the rights of international civil servants and apply them retroactively. It is, however, disputed whether the Assembly may amend Staff Regulations for the future in a way that puts staff in a worse position (Stöckl, n 19, 2062). Cf Art 32(5) of the Statute of the International Court of Justice 1946 (‘These salaries, allowances, and compensation [of the members of the Court] shall be fixed by the General Assembly. They may not be decreased during the term of office’). 66

  See Staff Regulations 12.2, 12.3, and 12.4. The Staff Rules promulgated by the Secretary-General must be consistent with the principles set out in the Staff Regulations and are issued as he/she considers necessary (ST/SGB/2014/1, 7). The General Assembly retains control over the content of the Staff Rules in that the Secretary-General must report the full text of provisional Staff Rules and amendment on an annual basis. Should the Assembly find that a provisional rule or an amendment is inconsistent with the intent and purpose of the Regulations, it may direct that the rule/amendment be withdrawn or modified (Reg 12.3). 67

  These may contain provisions impacting on the common system (see section 2.2) and are issued pursuant to Arts 57 and 63 of the UN Charter. 68

  See, eg, Agreement between the United Nations and the United States Regarding the Headquarters of the United Nations, signed 26 June 1947. 69

  Convention on the Privileges and Immunities of the United Nations, 13 February 1946; and Convention on the Privileges and Immunities of the Specialized Agencies, 21 November

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1947. See also GA Res 22 C(I) and 90(I) (1946) on Privileges and Immunities of the International Court of Justice. 70

  Resolutions may be adopted on the recommendation of the ICSC (see section 2.6, ‘International Civil Service Commission’s role in the common system’), and these are not always integrated into the Staff Regulations. Changes to benefits under the UN Joint Staff Pension Fund (UNJSPF) may be approved by the General Assembly on the recommendation of the Pension Board, and have a direct effect even if they are not integrated into the UNJSPF Regulations. See para 15.29. The UN Administrative Tribunal (UNAT) has confirmed in a number of decisions that General Assembly resolutions constitute binding law for staff members and are directly applicable (UNAT Decisions No 4 (Howram), 25 August 1951; No 64 (Stepczynski), 1 September 1956; No 67 (Harris), 10 December 1956, vol 1, p 378; No 76 (Chmapoury), vol 11, p 35). See Stöckl, n 19, 2062. 71

  Secretary-General’s Bulletins are issued for the promulgation of rules for the implementation of regulations, resolutions, and decisions adopted by the General Assembly or the Security Council, as well as on matters related to the organization of the Secretariat or the establishment of specially funded Programmes. The Bulletins require the approval and signature of the Secretary-General (ST/SGB/1997/1, Section 3). One of the most important bulletins is ST/SGB/1999/13 (6 August 1999) on ‘Observance by United Nations forces of international humanitarian law’. 72

  Administrative Instructions prescribe instructions and procedures for the implementation of the Financial Regulations and Rules, Staff Regulations and Rules, or Secretary-General’s Bulletins. They are promulgated and signed by the USG for Management, or by other officials to whom the Secretary-General has delegated specific authority (ST/SGB/1997/1, Section 4). The extent to which these Administrative Instructions are legal rules is not clear. The UNAT accepted them as interpreting the Staff Regulations and Rules (UNAT Decision No 55 (Russell Cobb), 1954) and as additional regulatory instruments in the application of the Staff Regulations and Rules (UNAT Decisions No 15 (Robinson), vol I, p 45, 11 August 1952; No 138 (Peynado), vol IV, p 234, 30 October 1970. See Stökl, n 19, 2064. 73

  The system applies to over 52,000 staff serving at 600 duty stations (UNOHRM, Common System (2006)). The relationship agreements with the specialized agencies are concluded under Arts 57 and 63 of the UN Charter. Twelve agencies have concluded such agreements; the International Monetary Fund (IMF) and World Bank group do not belong to the common system. The IAEA concluded its cooperation agreement with the UN in 1957. The agreements concluded in the 1940s contain a declaration of intent to create a single, unified ‘International Civil Service’ (International Law Association (ILA) and Food and Agriculture Organization (FAO) Agreements (Art XI), World Health Organization (WHO) and International Civil Aviation Organization (ICAO) Agreements (Art XII), and the United Nations Educational, Scientific and Cultural Organization (UNESCO) Agreement (Art 13)), but the agreements concluded in later years so do not have such a declaration (International Telecommunication Union (ITU) Agreement (Art VIII), World Meteorological Organization (WMO) Agreement (Art IX), IAEA Agreement (Art XVIII), European Parliament’s Committee on Internal Market and Consumer Protection (IMCO) Agreement (Art X) and World Intellectual Property Organization (WIPO) Agreement (Art 15)). The agreements with the International Fund for Agricultural Development (IFAD) (1977) and the United Nations Industrial Development Organization (UNIDO) (1985) provide for institutionalized cooperation with the ICSC (created in 1975) (Stöckl, n 19, 2076). A general agreement ‘to consult and cooperate’ regarding personnel standards, methods, and arrangements appears in the relationship agreement between the UN and the International Criminal Court (ICC) (UN Doc A/58/874 (2004), Art 8) and the relationship and cooperation

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agreement between the UN and the International Tribunal for the Law of the Sea (ICLOS) (GA Res 53/251 (1998), Art 6). 74

  ICSC, A Framework for Human Resource Management (2001), 21. The basic principles for the International Civil Service (International Civil Service Advisory Board Report on Standards of Conduct in the International Civil Service, Coord/Civil Service/5 (1954)) are accepted by all the UN organizations. They are based on the British secretariat tradition established by Sir Eric Drummond during the time of the League of Nations, as well as on Arts 100 and 101 of the UN Charter (Stöckl, n 19, 2075). 75

  The suggestion of the International Labour Organization (ILO) to have a common system of binding legal norms has not been taken up, since the General Assembly and the specialized agencies wish to retain the freedom to make their own legal arrangements for staff (ACC/1984/PER/35). In theory, a specialized agency could deviate from the salary scales of the common system. The UNDP, eg, opted out of the human resources reform measures that reduced staff assessment in the field. There has nonetheless been a continuous process of administrative cooperation with regard to human resources policy that has led to a degree of uniform practice (Stöckl, n 19, 2075). 76

  The Conditions of Service Section provides advice to other agencies on emoluments policy, provides support to legislative bodies considering conditions of service issues, and participates in the development of job classification policies (UNOHRM, n 73). 77

  Promoting the common system is complicated due to the divergent views of member states and the fact that the opinions of the ICSC and Joint Inspection Unit (JIU) often differ. Member states may also adopt different positions in the General Assembly and in the specialized agencies as regards staffing policy: eg, UN Doc A/AC.150/4, 1971, para 56; Stöckl, n 19, 2065–6. 78

  The CEB is the successor to the Administrative Committee on Coordination (ACC), which was established by ECOSOC in 1946 (ECOSOC Res 13(III)). 79

  The former ACC had created the Consultative Committee for Administrative Questions (CCAQ) in 1948, which created a personnel section. In 2002, this personnel section became the Human Resources Network. The Network meets twice a year, usually in conjunction with meetings of the ICSC, and reports to the CEB’s High-Level Committee on Management. 80

  GA Res 13 (I) (1946) stated that ‘in order to implement Article 101(3) of the Charter, an International Civil Service Commission shall be established by the Secretary-General’. The International Civil Service Advisory Board (ICSAB) was established in 1949 to foster uniformity in staff policies. In 1970, the Consultative Committee for Administrative Questions studied the feasibility of establishing the ICSC, and a Special Committee was set up by the General Assembly to review the UN salary system (ICSC/R.263, p 13; GA Res 2743 (XXV) (1970)). The Committee’s Report proposed the establishment of the ICSC (UN Doc A/8728 (1972)), and the Assembly decided in principle to establish the ICSC in GA Res 3042 (XXVII) (1972). The ICSC’s Statute was adopted by GA Res 3557 (XXIX) (1974) and revised in 1987. 81

  The mandate covers all aspects of employment, but the type of action it is empowered to take in a specific area is regulated by its Statute (ICSC/1/Rev.1). It may take decisions itself on, eg, the establishment of the daily subsistence allowance and the schedule of post adjustment in the different duty stations (Art 11 of the ICSC Statute). However, in areas such as Professional salary scales, dependency allowances, and the education grant, the ICSC may only make recommendations to the General Assembly (Art 10); it may also only

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make recommendations to the specialized agencies regarding recruitment and job classification (Arts 13 and 14). 82

  Art 2 of the ICSC Statute. The appointment is only made, however, after the SecretaryGeneral has consulted with member states, the executive heads of the other organizations, staff representatives, and the ACABQ; the Secretary-General then compiles a list of candidates for appointment that is submitted to the General Assembly (Art 4). Two of the members shall be designated Chairman and Vice-Chairman and shall serve full-time (Art 2). The members are appointed in their personal capacity and no two should be of the same nationality; they shall have ‘substantial experience of executive responsibility in public administration or related fields’ (Art 3). The members serve for a four-year term and are eligible for reappointment (Art 5). The full Commission meets twice a year. 83

  For more on the establishment and composition of the JIU, see the papers published by the UN on the occasion of JIU’s 50th anniversary in 2016. 84

  GA Res 31/192 (1976) established the JIU as a standing subsidiary organ. Under Art 1(2) of the JIU Statute, the JIU is responsible to the General Assembly, and similarly to the competent legislative organs of those specialized agencies and other international organizations that have accepted its Statute. The JIU Statute is binding on all UN subsidiary bodies in respect of which the General Assembly may exercise its authority, which includes UN Programmes, Funds, and Offices: ‘Definition of “United Nations Affiliated Bodies” in relation to the Statute of the Joint Inspection Unit—United Nations Subsidiary Organs and Bodies—Question whether such bodies must abide by the provisions of the Statute’ [2000] UN Juridical YB 354, at 356. 85

  See, eg, Comparison of Methods of Calculating Equitable Geographical Distribution within the UN Common System (JIU/REP/96/7 (1996)); Relationship Agreements between the UN and the Specialized Agencies: Review and Strengthening of Sections pertaining to the Common System of Salaries, Allowances and Conditions of Service (JIU/REP/93/3 (1993)). 86

  This results from the different roles of these bodies. The JIU is an auditing body, which tends to take a critical approach in its examination of UN issues. The ICSC is a regulatory body, with a tendency to take note of problems rather than to criticize; it sees itself more as part of the documenting process. See, eg, UN Doc A/8454 (1971); UN Doc A/C.5/1601 (1974); Meron, The United Nations Secretariat (1977), 108–19; the adoption of GA Res 39/27 (1984) on the suspension of the increase in post adjustment due in part to the report of the JIU (JIU/REP/84/12 (1984)); the debate on UN emoluments between the ICSC, ACC, and JIU (ICSC/REP/A/40/30 (1985); UN Doc A/40/635 (1985); JIU/REP/85/8 (1985)). See also Stöckl, n 19, 2079. 87

  Art 101(1) of the UN Charter provides: ‘The staff shall be appointed by the SecretaryGeneral under regulations established by the General Assembly.’ Upon appointment, each staff member receives a letter of appointment signed by the Secretary-General or an official in the name of the Secretary-General (UN Staff Regulations and Rules, ST/SGB/2014/1, Reg 4.1). At the conference establishing the UN, Yugoslavia proposed that the appointment of Secretariat staff should be made with the consent of the member states of which the individual was a national. This proposal was rejected by a large majority (Schwebel, ‘The International Character of the Secretariat of the United Nations’ (1953) 30 BYIL 71, at 79– 80).

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88

  For Director-level posts, three candidates, including one woman, are usually submitted to the Secretary-General by the head of the relevant Department or Office. Priority for internal candidates does not apply to such appointments. The Secretary-General makes his/ her choice in consultation with the head of the relevant Department or Office. The Senior Review Group is composed of a number of USGs; it examines the process, but does not select the candidate. For the post of USG and ASG, the Secretary-General has discretion and does not have his/ her decision examined by the Senior Review Group. In practice, the Secretary-General appoints USGs and ASGs in consultation with member states, in particular the major donors and the G-77. 89

  This system was introduced in 2002 as part of the reforms under Secretary-General Kofi Annan (UN Doc A/59/263 (2004)). Applications are received and processed by the OHRM, facilitated by the Galaxy electronic-staffing tool. A central review body composed of staff members holding a fixed-term or continuing contract at the P-5 and higher levels must be satisfied that the evaluation criteria have been properly applied and that the applicable procedures were followed. See ST/AI/2002/4, ss 8 and 9. The DPKO has delegated authority to recruit peacekeeping staff. 90

  On average, it takes 174 days from the time a vacancy announcement is issued to the time a candidate is selected (Report of the Secretary-General, Investing in the United Nations For a Stronger Organization Worldwide, UN Doc A/60/692 (2006), para 25(b)). In June 2008, the vacancy rate for field positions was 22 per cent overall and 32.5 per cent for internationally recruited staff (Pollard, Assistant Secretary-General for Human Resources Management, Presentation to the Fifth Committee on Human Resources Reform Proposals, 6 October 2008). 91

  UN Charter Art 101(3) and Reg 4.2 of the UN Staff Regulations and Rules, ST/SGB/ 2014/1. Periodically, the Secretary-General has made proposals for the creation of a UN Staff College to train future international civil servants, but these have not been accepted (UN Docs A/8829 (1972), A/8935 (1972), A/8980 (1972), E/5133, and E/5133/Corr.2 (1972)). 92

  UN Staff Regulations and Rules, ST/AGB/2009/7, Reg 4.4 provides that ‘Subject to the provisions of Article 101, paragraph 3, of the Charter, and without prejudice to the recruitment of fresh talent at all levels, the fullest regard shall be had, in filling vacancies, to the requisite qualifications and experience of persons already in the service of the United Nations.’ The Secretary can limit eligibility to apply for vacancies to internal candidates. Internal candidates’ application may be considered earlier in the recruitment process (ST/ AI/2002/4, s 5) and the Programme manager may give them priority (s 7). 93

  See also Reg 4.2 of the UN Staff Regulations and Rules, ST/SGB/2014/1.

94

  ibid, Reg 4.3.

95

  See GA Res 42/220 A (1987). See also Report of the Secretary-General, Composition of the Secretariat, UN Doc A/64/352 (2009), Annex I. The membership factor means the number of member states. The contribution factor is based on the most recent scale of assessments, with the number of posts allotted for each member state varying proportionally. The population factor reflects the proportion of each member state’s population as compared with the global population of all member states. Regional groups are not relevant to the calculation of ‘desirable ranges’. 96

  See, eg, UN Doc A/71/360 (2016), para 38.

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97

  ibid, para 44, fn 10. This group is defined as staff appointed at the Professional and higher categories of staff to posts financed from the regular budget (GA Res 65/247 (2011), para 67). 98

  See GA Res 61/244 (2007), Section X, para 14.

99

  Meron, n 86, 93–8; Ebner, ‘Article 100’ in Simma et al (eds), n 1, 2022, at 2027. For example, there has been a tendency for the USG for Management to be a US national (to facilitate contacts with Washington), the USG for Political Affairs to be a UK national, and the USG for Peacekeeping Operations to be a French national (Myint-U and Scott, The UN Secretariat: A Brief History (1945–2006) (2007), 122). The General Assembly has called upon the Secretary-General ‘to reinforce the principle of rotation of posts in upper echelons of the Secretariat’ (GA Res 41/206 (1986), 42/220 (1987)). The positioning of USGs and ASGs is a challenge for the Secretary-General, who has to take into account the opinions of the major donors, the permanent members of the Security Council, regional groups, the Nordic countries, India, and Pakistan. 100

  A special effort was made by Secretary-General Kofi Annan: see GA Res 45/259 C (1991), 55/258 (2001) (section XIV, para 2), 57/305 (2003) (section II, paras 39–41). As of 30 June 2009, 34.5 per cent of staff at the D-1 level and above were women (UN Doc A/64/352, para 69). Since 1997, the Secretariat has encouraged ‘gender mainstreaming’ (ensuring that gender perspectives and attention to the goal of gender equality are central to all activities). Moreover, Art 8 of the UN Charter provides that no restrictions shall be placed by the UN on the ‘eligibility of men and women to participate in any capacity and under conditions of equality’ in the principal and subsidiary organs of the UN. On the exclusion of women from the UN, see Charlesworth and Chinkin, The Boundaries of International Law: A Feminist Analysis (2000). Considerations of gender equality sometimes affect the consideration of candidates for employment in the UN, despite there being no quota for women on the ICJ. Cf the ICC in ch 31, ‘Criminal Tribunals Established by, or in Relationship with, the UN’, section 3.4, ‘Composition of the ICC’. When the post of Secretary-General became open in 2006, states were strongly urged by non-governmental organizations (NGOs) to consider nominating women. Only one female candidate ran, Vaira Vike-Freiberga, then President of Latvia, nominated jointly by Latvia, Estonia, and Lithuania. In 2016, three female candidates ran: Helen Clark of New Zealand; Irina Bokova of Bulgaria; and Susana Malcorra of Argentina. 101

  UN Women merges four UN bodies: the Division for the Advancement of Women, the International Research and Training Institute for the Advancement of Women, the Office of the Special Adviser on Gender Issues and Advancement of Women, and the UN Development Fund for Women (UNIFEM). UN Women was established as part of SecretaryGeneral Ban’s efforts to improve system-wide coherence. It has three goals: to support inter-governmental bodies, such as the Commission on the Status of Women, in their formulation of policies, global standards, and norms; to help member states to implement these standards, by providing suitable technical and financial support and forming partnerships with civil society; and to hold the UN system accountable for its own commitments on gender equality, including regular monitoring of system-wide progress (GA Res 64/289 (2010), paras 49–90 and UN Doc A/64/588 (2010)). The mandate of UN Women is not very clear: it shall consist of the ‘consolidated mandates and functions’ of the four bodies, with the ‘additional role of leading, coordinating and promoting the accountability of the United Nations system in its work on gender equality and the empowerment of women’. Any new mandates shall be subject to approval by intergovernmental process (GA Res 64/289 (2010), para 53).

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102

  GA Res 35/210 (1980). The resolution stated that ‘at the P-l and P-2 levels, recruitment shall be made as a rule through competitive examinations’. 103

  Successful candidates are put on the NCRE roster, and programme managers can select and recruit from the roster for a vacant P-2 post. 104

  The average time of the NCRE cycle from the beginning of planning to the end of the examination is about two years, while the final placement of the candidate in a post takes a further six months to three years (JIU/REP/2007/9, Review of the National Competitive Recruitment Examination (NCRE) as a Recruitment Tool). 105

  The YPP was an initiative of Secretary-General Ban in response to the criticism of the NCRE (UN Doc A/65/305/Add.4 (2010)).The YPP also holds annual examinations for qualifying nationals from under-represented or unrepresented member states. Recruits are initially given a two-year fixed-term appointment, followed by conversion to a career contract, provided their performance is satisfactory. 106

  ICSC, n 74, p 22.

107

  It is governed by The Inter-Organization Mobility Accord (2005) issued by the CEB. UN Staff Rule 4.9(b) provides that ‘[t]he Secretary-General may allow a staff member to serve in a specialized agency or other intergovernmental organization, provided that such movement in no way diminishes the rights or entitlements of the staff member under his or her letter of appointment with the United Nations’. 108

  See further section 2.10, ‘Duration of appointment’. Until the 1990s, secondment was ‘practically the only way’ to recruit nationals of the former Soviet Union and most other Eastern European states (Ebner, n 99, 2034). Governments presented the candidates, agreed to the conditions of the fixed-term contract, and controlled whether the contract was extended. This practice created a strong dependence by seconded staff on their national state (ibid). Another form of secondment is where senior government officials are seconded to the Executive Office of the Secretary-General for a defined period to act as senior advisers. After their secondment, such officials return to their jobs in their national government. 109

  Application for Review of Judgment No 158 of the United Nations Administrative Tribunal (Advisory Opinion) ICJ Rep 1973, p 166. The case concerned a UNAT judgment regarding Mr Yakimetz, a national of the Soviet Union seconded to the UN Translation Service for a five-year fixed term, who was later denied an extension by the SecretaryGeneral after the Soviet Union refused to give its consent to such an extension. The ICJ held, inter alia, that the Secretary-General’s decision cannot be said to have failed to respect the ‘paramount’ character of the considerations mentioned in Art 101(3) of the UN Charter (paras 79–82). He had given ‘reasonable consideration’ to Mr Yakimetz’s communications, and the fact of his secondment had not been treated as a formal legal impediment to the extension. See also UNAT Judgment No 482 (Qiu, Zhou, and Yao) (1990), on the secondment of three Chinese nationals who subsequently sought career appointments at the UN that were opposed by the Chinese Government. The Secretary-General later issued a report on secondment introducing stricter written formalities for secondment (UN Doc A/C.5/45/12 (2010)), which was endorsed by the General Assembly (GA Res 45/239 A.II (1990)). 110

  A loan on a reimbursable basis occurs where the salary of the staff member is paid by the releasing government or organization but then reimbursed by the receiving organization (with the exception of some troop-contributing countries (TCCs)). A loan on a non-reimbursable basis occurs where the releasing government or organization is not repaid, although, in the case of secondment between UN entities, the releasing entity may

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be given a post in exchange. This latter type of funding arrangement may be used when UN bodies transfer staff members perceived as incompetent. 111

  These staff members were almost all from developed states and were placed at the disposal of the DPKO while being funded by their own governments. 112

  Expressing concern at the impact on geographical distribution, the General Assembly restricted this practice by only allowing type II gratis personnel to provide expertise not available within the organization for very specialized functions for a limited and specified period of time, or to provide temporary and urgent assistance in the event of new/expanded mandates, pending a decision by the General Assembly on the level of resources required (GA Res 51/243 (1997)). See also Report of the Secretary-General, Criteria under for recruitment to support account posts, UN Doc A/58/767 (2004). 113

  See ICSC, United Nations Common System of Salaries, Allowances and Benefits (UN August 2010). For types of appointment according to duration, see section 2.10, ‘Duration of appointment’. There is also Field Service category staff who may perform General Service or Professional Functions. They are ranked Field Service (FS)-4 through FS-7. 114

  In 2006, 0.4 per cent of all staff were in the category of USG or ASG (Myint-U and Scott, n 99, Annex I, p 126). 115

  This category usually requires a university or professional background, or equivalent experience. ‘National Professional Officers’ are not strictly in this category, but are employed by some organizations to perform professional duties that require knowledge and experience at the national level, such as development assistance and public information. In 2006, 26.5 per cent of staff were in the Professional category. In terms of hierarchy, the majority (68.5 per cent in 2006) of professional staff are concentrated in middle management (P-3 to P-4) (ibid). 116

  The General Service staff are recruited and paid on a local basis. A trend has emerged whereby previously separate career streams or occupational groups have begun to merge, leading to broader, increasingly complex jobs requiring higher levels of knowledge and greater skill diversity. Aided by the advancement of office technologies, many staff members in the General Service category undertake specialized, ‘paraprofessional’ work and are carrying out work once done by Professional staff (ICSC Annual Report 2009 (UN Doc A/ 64/30), para 101)). 117

  Staff in this category work in the fields of political affairs, legal affairs, human rights, election monitoring, humanitarian assistance, public information, general administration, procurement, logistics, civil engineering, and electronic data. They may be radio operators, transport personnel, or security office and office support personnel. 118

  See ST/AI/2003/7, as amended by ST/AI/2005/9. Competitive examinations are held annually in specific occupational groups in accordance with the needs of the organization. A staff member serving in the General Service and related categories, including the Field Service category, may apply to take a competitive examination in a particular occupational group, provided he/she has five years’ experience working in the Secretariat. 119

  Under the application of the principle, Professional salaries are determined by reference to those of the highest-paying national civil service, which has been the US Federal Civil Service since the inception of the UN (ICSC, n 74, 21). Georges Noblemaire was Chairman of a League of Nations Committee of Experts, which had recommended that salaries of League staff be based on the salaries of the highest-paid civil service of the world (at that time the British Civil Service) (Schermers and Blokker, n 35, 357).

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120

  The Flemming principle provides that conditions of employment are based on best prevailing local conditions (ICSC, n 74, 20). 121

  The concept of mobility in the UN common system includes movement within and across organizations in the UN common system, occupations, and geographic locations. For the purposes of the mobility and hardship scheme, mobility is the geographic reassignment of a staff member for a period of one year or more from one duty station to another (ICSC, A Guide to Mobility and Hardship Arrangements (2009), 6). As part of his reform agenda, Secretary-General Kofi Annan proposed making mobility an integral part of staff recruitment and promotion (UN Docs A/51/950 (1997) and A/55/253 (2000), paras 38–44 and Annex IV). In accordance with Staff Reg 1.2(c), staff members are subject to the authority of the Secretary-General and to assignment by him/her to any of the activities or offices of the UN. GA Res 51/226 (1997) requested the Secretary-General to encourage mobility and pursue the implementation of managed reassignment programmes. See also the further resolutions on mobility (GA Res 53/221 (1999), 55/258 (2001), 57/305 (2003), and 59/266 (2005)). The mobility policy was introduced in 2002 (ST/SGB/2002/5 and ST/AI/ 2002/4). The policy introduced a maximum post occupancy of five years for all 100 series staff from G-5 to P-5, and six years for those above P-5. It also linked promotion to mobility: two lateral moves are required before promotion to P-5. Despite these measures, the JIU has found a lack of an organization-wide culture of mobility, as well as the absence of a comprehensive strategic mobility plan. Moreover, mobility can conflict with other human resources goals, such as the need for specialized staff and the preservation of institutional memory (JIU/REP/2006/7, Staff Mobility in the United Nations, 2006). 122

  When the UN was created, the majority of member states supported the idea of a permanent international secretariat with a career civil service symbolized by permanent contracts. This was opposed by the Soviet Union and its allies, who supported fixed-term contracts of two to five years and the secondment to the UN of staff from national governments. Secretary-General Hammarskjöld proposed a compromise of 75 per cent permanent contract staff and 25 per cent fixed-term contract staff, with the option for secondment (Jonah, n 55, 164). 123

  See, eg, GA Res 13 (I) (1946) and the report of the Preparatory Commission of the UN (1945), PC/20, p 92. 124

  See, eg, GA Res 1436 (XIV) (2001) and 2241 (XXI) (1966); UN Doc A/55/253, paras 45– 50. 125

  Human Resources Management Reform: Report of the Secretary-General, Addendum: Contractual Arrangements, UN Doc A/59/263/Add.1 (2004). See also his initial proposal in UN Doc A/55/253 (2010), para 47. The eventual structure adopted consists of: temporary appointment (maximum duration of less than one year to meet seasonal or peak workloads and specific short-term requirements, and may be extended up to one year only); fixed-term appointment (granted for a period of one year or more, and renewable for a maximum duration of five years at a time); and continuing appointment (an open-ended appointment available to limited staff members as prescribed by the Secretary-General). See UN Staff Regulations and Rules, ST/SGB/2014/1, Rules 4.12, 4.13, and 4.14. Appointments of USGs and ASGs are normally for up to five years, subject to prolongation or renewal (Reg 4.5(a)). 126

  The proposal to introduce ‘continuing contracts’ was initially rejected by the General Assembly in GA Res 62/250 (2009) and then approved in GA Res 63/250 (2010), with effect from 1 January 2011. The background to this effort is the problem of high vacancy rates in peacekeeping missions, especially non-family missions. Appointments to peacekeeping missions are usually limited to a certain mission. The idea behind ‘continuing contracts’ is to allow staff to move more easily between missions, and also to encourage them to stay in the organization, even in difficult living conditions in the field. The attention to the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

conditions of service of staff in peacekeeping missions is partly a result of the fact that a greater proportion of senior management are rising through the organization (including periods in the field) rather than being recruited externally. Various criteria must be met to obtain a continuing contract, including five years of continuous service, receiving a performance rating of at least ‘Meets expectations’ in the four most recent performance appraisal reports, and not being subject to any disciplinary measure during the five years prior to consideration for the granting of a continuing contract: (GA Res 65/248 (2010), paras 51–61). 127

  As of June 2016, 70 per cent of staff in the Secretariat had fixed-term contracts (UN Doc A/71/360 (2016), Figure III, p 27). There is an expectation of renewal of contracts at or before their expiry. The widespread use of one-year contracts in the Secretariat leads to a sense of insecurity among staff members and can impact negatively on motivation. 128

  UN Staff Regulations and Rules, ST/SGB/2014/1, Reg 1.3(b). The fact that staff members may be required to work beyond the normal tour of duty is usually provided in the letter of appointment. During difficult periods, staff members may be expected to work on weekends or round-the-clock. 129

  ibid, Reg 3.1 and Annex I, para 6.

130

  The ICSC makes recommendations to the General Assembly—which then acts as the legislator for the rest of the common system—on such matters as Professional salary scales, the level of dependency allowances, and education grant (Arts 10 and 12 of the ICSC Statute). 131

  See section 2.9, ‘Conditions of service’. This principle has been reaffirmed by the General Assembly at regular intervals (GA Res 59/268 (2004)). It is related to Art 101(3) of the UN Charter, in that staff members with the highest professional qualifications and integrity can only be recruited if the conditions of service can compete with those offered to the national civil service of the member state whose levels were found to be highest and which otherwise lent itself to a significant comparison (see UN Doc A/10030 (1975), para 29). At the time of the League of Nations, the comparison was drawn with the British Civil Service. The UN uses the US Federal Civil Service as its comparator (UN Doc A/AC.150/3 (1971)). This measure has sometimes been challenged. The German Civil Service has also been considered as a comparator (see ICSC/43/R.8), but the US Federal Civil Service has been maintained as the comparator even when the US salaries were frozen in 1984 (UN Doc A/39/30 (1984), GA Res 30/27 (1984)). 132

  The base/floor salary scale was introduced, with effect from 1 July 1990, by GA Res 44/198 (1989) (section I.H). The scale was set by reference to the general schedule salary scale of the comparator civil service. Annual adjustments are made based on a comparison of net base salaries of UN staff in New York at the midpoint of the scale (P-4, step VI, at the dependency rate) with the corresponding salaries of their counterparts in the US Federal Civil Service in Washington, DC. The adjustments are implemented by increasing base salary while commensurately reducing post adjustment levels. See further n 137. See ICSC Annual Report 2009 (UN Doc A/64/30), para 61. 133

  Post adjustment is an amount paid to staff members serving in the Professional and higher categories and in the Field Service category to insure equity in the purchasing power of staff members across duty stations (UN Staff Regulations and Rules, ST/SGB/ 2007/9, Rule 3.7). It was established in 1977 (GA Res 32/200) and the levels are regularly reviewed by the ICSC, which has an Advisory Committee on Post Adjustment Questions. The decision of the ICSC to increase the post adjustment of staff in New York was rejected, as it

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would have raised the margin over US salaries by 24 per cent (GA Res 39/27 (1984)); a modified scale was adopted in GA Res 40/244 (1985). 134

  These include a dependency allowance (UN Staff Regulations and Rules, ST/SGB/ 2014/1, Rule 3.6), rental subsidy (Rule 3.7), language allowance (Rule 3.8), education grant (Rule 3.9), special post allowance (Rule 3.10), overtime and compensatory time off (Rule 3.11), night differential (3.12), a non-pensionable mobility allowance to encourage movement from one duty station to another (Rule 3.13), and a hardship allowance to compensate staff for difficult living conditions at certain duty stations (Rule 3.14). 135

  See ch 14, ‘The Financing of the United Nations’, section 5.1, ‘Income from staff assessment’. A few member states tax the emoluments of their nationals who work for the UN. In such cases, the UN reimburses the income tax to the staff member. 136

  GA Res 248 (III) (1948). The UNJSPF has its own Regulations and Rules, which are amended by the Assembly following recommendations by and consultation with the UNJSPF Board. Almost all the organizations of the common system are affiliated to the Fund, as well as external organizations such as the ICC and the Special Tribunal for Lebanon (STL). The Fund is administered by the UNJSPF Board, a staff pension committee for each member organization, and a secretariat to the Pension Board and to each staff pension committee. The Pension Board reports to and formulates recommendations for approval by the General Assembly. It is composed of members representing Governing Bodies, the member organizations, participants in service, and retirees. Contributions are made by the staff member on the basis of pensionable remuneration (Art 54 of the UNJSPF Regulations) and the employing organization (Art 25 of the UNJSPF Regulations). As of December 2015, the Fund was serving 23 member organizations, with 126,892 active participants and around 72,000 beneficiaries. Report of the United Nations Joint Staff Pension Board, UN Doc A/ 71/9. The Fund was also affected by the financial crisis in 2007–8. The market value of the Pension Fund’s assets was US$ 41.3 billion at the end of 2007, but decreased to US$ 31 billion at the end of 2008 (a 25 per cent drop in value) (UNJSPF Annual Report 2008, p 1). It had increased to US$ 52.4 billion, as at the end of 2015 (UNJSPF Annual Report 2016, p 4). The ACABQ considers the reports of the UNJSPF and makes recommendations to the General Assembly. 137

  Art 100(1) addresses the duty of independence: ‘In the performance of their duties the Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization. They shall refrain from any action which might reflect on their position as international officials responsible only to the Organization.’ Art 101(3) states that the ‘paramount consideration in the employment of the staff and in the determination of the conditions of service shall be the necessity of securing the highest standards of…integrity’. See also Amerasinghe, Principles of the Institutional Law of International Organizations (1996), 338–40. 138

  The ‘core values’ of UN staff members include faith in fundamental human rights, in human dignity, and in the equal rights of men and women. Staff members shall exhibit respect for all cultures and not discriminate against any individual or group. They shall uphold the highest standards of efficiency, competence, and integrity (United Nations Staff Regulations and Rules, ST/SGB/20014/1, Reg 1.2(a)–(b)). The ‘General rights and obligations’ include loyalty to the organization, conduct ‘befitting their status as international civil servants’, not using their office for private gain, ensuring participation in any political activity is not inappropriate, and respecting confidentiality (Reg 1.2(c)–(i)). See also ‘Specific instances of prohibited conduct’ in Rule 1.2(e)–(j).

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139

  This declaration is witnessed by the Secretary-General or his/her authorized representative. It is placed in the staff member’s official status file. A new declaration must be made after a break in service of more than three months. The obligations in the declaration do not lapse upon cessation of service with the UN (United Nations Staff Rules, ST/SGB/2014/1, Reg 1.1 (b) and Rule 1.1). 140

  The Secretary-General’s report (UN Doc A/69/676 (2014)) provided an update on the progress made towards the implementation of the accountability framework, as requested by GA Res 68/264 (2014). The report noted the introduction of a new element in the senior managers’ compact assessments in 2015, which will include a review by the Executive Office of the Secretary-General rather than by each senior manager himself/herself. Proposed revisions were also made to the performance management system, which commenced implementation in April 2015. The development of an online training and guidance package was ongoing in 2015, which is designed to educate managers and staffat-large on performance management to increase the accessibility of such programmes. There has been ongoing review of the senior managers’ Compacts to help improve performance earlier than at the end of performance cycles. 141

  The test is whether the participation is inconsistent with or might reflect upon their independence and impartiality (United Nations Staff Regulations and Rules, ST/SGB/ 2014/1, Reg 1.2(h)). Membership in a political party is permitted, provided it does not entail action contrary to the above Regulation; the payment of normal financial contributions to the party is allowed (Rule 1.2(s)). For specific examples of cases on active political involvement, see [1976] UN Juridical YB 207–8; [1979] UN Juridical YB 177–8; [1986] UN Juridical YB 337–9; [1990] UN Juridical YB 282–4. 142

  If refusal of an honour or gift would cause embarrassment to the organization, the staff member may receive it on behalf of the organization and report and entrust it to the Secretary-General (United Nations Staff Regulations and Rules, ST/SGB/2014/1, Reg 1.2(j)– (k)). No staff member may receive any honour, gift, or remuneration from any nongovernmental source without first obtaining the approval of the Secretary-General (Reg 1.2(l)). Minor gifts of nominal value may be accepted from non-governmental sources without prior approval, provided they are disclosed to the head of the office (Rule 1.2(l)). The UN, its specialized or related agencies, and staff have been awarded the Nobel Peace Prize 10 times: 2007 Intergovernmental Panel on Climate Change (IPCC) and Al Gore; 2005 International Atomic Energy Agency, Mohamed ElBaradei; 2001 United Nations, Kofi Annan; 1988 United Nations Peacekeeping Forces; 1981 Office of the UN High Commissioner for Refugees; 1969 International Labour Organization; 1965 United Nations Children’s Fund; 1961 Dag Hammarskjöld; 1954 Office of the UN High Commissioner for Refugees; 1950 Ralph Bunche. 143

  Staff members must not allow personal interests to interfere with the performance of their official duties and responsibilities (UN Staff Regulations and Rules, ST/SGB/2014/1, Reg 1.2(m)). Outside employment (whether paid or unpaid) requires the approval of the Secretary-General, which will only be given if the activity does not conflict with official status or functions, is not against the interest of the UN, and is permitted by local law at the duty station (Reg 1.2(o)–(p)). 144

  Staff at the D-1 level and above must file financial disclosure statements on appointment and at regular intervals to prove that the assets and economic activities do not pose a conflict of interest (United Nations Staff Regulations and Rules, ST/SGB/20014/1, Reg 1.2(n)).

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145

  These Compacts were introduced in 2006. They identify the programmatic priorities for the year and associated performance measures for each Department under the Programme budget and the strategic framework. Managerial targets are included and used to assess the performance of senior managers (USG, ASG, Heads of Peacekeeping/Political Missions, and Special Representatives of the Secretary-General) by the Management Performance Board chaired by the Deputy Secretary-General. The Compacts are kept in the official status files of senior managers. An assessment identifying areas of inadequate performance could trigger an administrative action by the Secretary-General against a senior manager. See Secretary-General’s Report, Towards an accountability system in the United Nations Secretariat, UN Doc A/64/640 (2010), ACABQ Report A/64/683 (2010). 146

  United Nations Staff Regulations and Rules, ST/SGB/2014/1, Rule 10.1(a).

147

  United Nations Staff Regulations and Rules, ST/SGB/2014/1, Rule 10.1(c). It is subject to the due process requirements, including notification in writing of charges, the opportunity to respond, and the right to seek the assistance of counsel (Rule 10.3(a)). Under the former internal justice system (in place until July 2009), the Secretary-General could impose a disciplinary measure only after a recommendation from a Joint Disciplinary Committee (JDC), except in cases of summary dismissal. 148

  Disciplinary measures include: written censure, loss of one or more steps in grade, deferment for a period of eligibility for salary increment, suspensions without pay for a period, a fine, deferment for a period of eligibility for consideration for promotion, separation from service, and dismissal (United Nations Staff Regulations and Rules, ST/ SGB/2014/1, Rule 10.2(a)). Administrative measures include: written or oral reprimand, recovery of monies owed to the organization, and administrative leave with or without pay (including pending the investigation and the disciplinary process) (Rules 10.2(b) and 10.4). 149

  United Nations Staff Regulations and Rules, ST/SGB/2014/1, Rule 10.3(c) and Chapter XI. See further section 2.13, ‘Internal justice’. 150

  Scenarios include: a staff member claiming his/her contract of employment or terms of appointment have been violated; a staff member formally contesting an administrative decision that is alleged not to comply with his/her contract of employment or terms of appointment; a staff member challenging an administrative measure imposing a disciplinary measure (United Nations Staff Regulations and Rules, ST/SGB/2014/1, Rules 11.1 and 11.2; Statute of the UN Dispute Tribunal, GA Res 63/253 (2009), Annex 1, Art 2(1)). The League of Nations permitted staff members who were dismissed after five years or more to appeal to the Council. For final resolution of such an appeal, the League deferred to a committee of jurists: League Assembly Res of 17 December 1920, Acts of the First Assembly, Plenary sessions, at 663–4; Akehurst, The Law Governing Employment in International Organizations (1967), 13. 151

  See, eg, GA Res 57/307 (2003) and 59/266 (2004). See also the management review of the appeals process conducted by the OIOS (UN Doc A/59/408 (2004)) and Meron, n 86, 159–71. The allegations of bias arose from the fact that the internal justice system was mostly handled within the Department of Management, the same entity making decisions on human resources and disciplinary matters. 152

  At the request of the General Assembly (GA Res 59/283 (2005)), the Secretary-General appointed the ‘Redesign Panel on the United Nations Administration of Justice System’ composed of five external exports. The resulting report (UN Doc A/61/205 (2006)) recommended major changes in five areas: the informal system of justice (the Ombudsman, mediation, Panel on Discrimination and Other Grievances); the formal system (Joint Appeals Board/Joint Disciplinary Committee and the UNAT); the legal representation of staff and the Secretary-General; the multiplicity of recourse mechanisms; and the decentralization of the internal justice system. The Redesign Panel recommended the abolition of the Joint Appeals

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Board/Joint Disciplinary Committee and its replacement with a professionalized judicial body of first instance with authority to issue binding decisions, with the UNAT 2 as an appellate tribunal, and the establishment of a standing, professionalized office of counsel to provide legal advice and representation for staff members. 153

  Informal resolution is encouraged through notifying the offender or seeking the assistance of a third party (eg, Ombudsman, human resources officer, the Medical Service). Formal procedures consist of a written complaint to the Head of Department or the ASG for Human Resources Management or the USG for Field Support (for mission staff). Upon receipt of the written complaint, a fact-finding investigation shall be undertaken by two or more trained officials, who will submit a report to the Head of Department, the ASG for Human Resources Management, or the USG for Field Support (‘the responsible official’). The responsible official may then close the case, take managerial action (eg, training, reprimand, counselling), refer the matter for disciplinary action to the ASG for Human Resources Management, or, if the allegations were unfounded and malicious, take disciplinary action against the complainant. Cases may also be reported directly to the OIOS. The complainant and alleged offender may both appeal using the internal justice system procedures (ST/SGB/2008/5). See also ST/SGB/2005/21 on the protection against retaliation for reporting misconduct. 154

  GA Res 63/253 (2009), para 18; United Nations Staff Regulations and Rules, ST/SGB/ 2014/1, Rule 11.1. 155

  United Nations Staff Regulations and Rules, ST/SGB/2014/1, Rule 11.1.

156

  The Office of the Ombudsman was established in October 2002 (ST/SGB/2002/12) and strengthened in 2008 (GA Res 62/228 (2008)) by creating an integrated Ombudsman structure that serves the Secretariat, UNDP, UNICEF, UNFPA, UNOPS, and UNHCR, and by establishing a Mediation Division. The Ombudsman offers services to all UN staff, including former employees and retirees, regardless of their type of contract and location. The Mediation Division handles cases referred to it by the parties, the Ombudsman’s Office, the Management Evaluation Unit, the UN Dispute Tribunal, and the Office of Staff Legal Assistance. All workplace disputes are eligible for mediation. The time limit for mediation shall not normally exceed three months (Mediation Division Guidelines). 157

  Art 8 of the Statute of the United Nations Dispute Tribunal (hereinafter Statute of the UNDT) (adopted GA Res 63/253 (2008), amended by GA Res 69/203 (2014), GA Res A/ 70/112 (2015) and GA Res 71/266 (2016)); UN Staff Regulations and Rules, ST/SGB/2014/1, Rule 11.1(d); Mediation Division Guidelines, para 20. Nonetheless, a staff member may file an application to enforce the implementation of an agreement reached through mediation (Art 8 of the Statute of the UNDT; Mediation Division Guidelines, para 25), or file an application with the UNDT if a dispute is not settled by mediation (Staff Rule 11.4(c); Mediation Division Guidelines, para 25). 158

  See GA Res 61/261 (2007), 62/228 (2008), and 63/253 (2009). The establishment of the former institutions of internal justice (eg, UNAT) was characterized by the ICJ as a result of the ‘implied powers’ of the UN rather than Art 22 of the Charter on the establishment of subsidiary organs. The Court held that the establishment of the UNAT was not an improper interference with the powers of the Secretary-General over human resources (Effects of Awards of Compensation made by the UNAT (Advisory Opinion) ICJ Rep 1954, p 56, at 60). The Court recalled its statement in Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) ICJ Rep 1949, p 182: ‘Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.’ See further, ch 9, ‘Powers’. The 1954 Advisory Opinion also held that the General Assembly could establish a tribunal with authority to make decisions binding on the General Assembly itself, but the precise nature and scope of the measures by From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

which the power of creating a tribunal was to be exercised was a matter for determination by the General Assembly alone. The fact that the tribunal is a subsidiary, subordinate, or secondary organ was of no importance; what mattered was the intention of the General Assembly in establishing the tribunal (Effects of Awards of Compensation Made by the UNAT (Advisory Opinion) ICJ Rep 1954, p 56 at 58–61). 159

  UN Staff Regulations and Rules, ST/SGB/2014/1, Rule 11.2. This is an opportunity for the Administration to examine whether the administrative decision being contested was proper or not, and to find, where relevant, an appropriate remedy. It is conducted by the Management Evaluation Unit within the Office of the USG for Management. However, a management evaluation is not required where the administrative decision in question was taken on the advice of technical bodies as determined by the Secretary-General, or a decision taken at Headquarters to impose a disciplinary or non-disciplinary measure pursuant to Staff Rule 10.2 (in such cases, the staff member can proceed directly to file an application with the UNDT (Rule 11.4(b)). Certain time limits apply to the filing of the request for the management evaluation and the written response of the Secretary-General. The formal system of justice is coordinated by the Office of Administration of Justice, separate from the Department of Management. 160

  See para 15.33. Interns, type II gratis personnel, and volunteers (other than UN Volunteers) may request a management evaluation, but do not have access to the UNDT or the UNAT (GA Res 63/253 (2009), para 7). Consultants and individual contractors have no access to the internal justice system. Several states, including Switzerland, are trying to change this, because the only mechanism available to those categories is arbitration. 161

  Statute of the UNDT, Annex 1, Arts 4(1) and 5. The judges are appointed by the General Assembly on the recommendation of the Internal Justice Council (GA Res 62/228 (2008)— the Council is composed of three external experts and two staff members); no two judges may be of the same nationality, and they shall be of ‘high moral character’ and possess at least 10 years’ judicial experience in the field of administrative law (Art 4(2) and (3)). Judges serve for a non-renewable term of seven years (Art 4(4)). The UNDT may order production of documents or other evidence as it deems necessary; and it may decide whether the personal appearance of the applicant or other person is required at the oral proceedings, which are generally held in public (Art 9). The former internal justice system was a peer-review system with volunteer staff member serving on the Joint Appeals Boards (JABs) and Joint Disciplinary Committees (JDCs). Judges of the UNAT were nominated by member states and elected by the General Assembly without any screening process or requirement regarding years of judicial experience. 162

  The President of the UN Appeals Tribunal (UNAT 2) may, however, at the request of the President of the UNDT, authorize the referral of a case to a panel of three judges of the UNDT due to particular complexity or importance (Statute of the UNDT, Art 10(9)). 163

  Statute of the UNDT, Art 10(5). The judge may also recommend mediation and suspend proceedings for a specified time (Art 10(3)). The former internal justice system could not issue binding decisions; the JABs and JDCs made recommendations that could be rejected by the Secretary-General. 164

  Statute of the UNDT, Art 11(3).

165

  The new body confusingly has the same acronym (UNAT) as the superseded UN Administrative Tribunal; to avoid confusion, the UN Appeals Tribunal is therefore referred to as ‘UNAT 2’ in this volume. The appeal must relate to the UNDT’s having exceeded its jurisdiction or competence, failed to exercise jurisdiction vested in it, erred on a question of law, committed an error in procedure such as to affect the decision, or erred on a question of fact resulting in a manifestly unreasonable decision (Statute of the United Nations

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Appeals Tribunal (hereinafter Statute of UNAT 2) (adopted by GA Res 63/253 (2008) and amended by GA Res 66/237 (2011), GA Res 69/203 (2014), GA Res 70/112 (2015) and GA Res 71/266 (2016)), Art 2(2)). The UNAT 2 may reverse, modify, or remand the judgment of the UNDT (Art 2(3)). In ‘exceptional circumstances’ the UNAT 2 may receive additional evidence instead of remanding the case to the UNDT, if it is in the interests of justice and the efficient and expeditious resolution of the proceedings (Art 2(5)). Under the former internal justice system, only the staff member could file an appeal to the UNAT. 166

  Statute of UNAT 2, Arts 3(1) and 4. Judges are appointed by the General Assembly on the recommendation of the Internal Justice Council (GA Res 62/228 (2008)); no two judges may be of the same nationality, and they shall be of ‘high moral character’ and possess at least 15 years’ judicial experience in the field of administrative law (Art 3(3)). Judges serve for a non-renewable term of seven years (Art 3(4)). 167

  Statute of UNAT 2, Art 10(1). The judge assigned to the case will determine whether to hold oral proceedings (Art 8(3)). 168

  Statute of UNAT 2, Arts 10(5) and 9(1).

169

  Statute of UNAT 2, Art 11. Where the judgment requires execution within a certain time period and such execution has not been carried out, either party may apply to UNAT 2 for an order for execution (Art 11(4)). 170

  OSLA has full-time Legal Officers based at New York, Geneva, Nairobi, Addis Ababa, and Beirut. Under the former internal justice system, legal assistance was provided by volunteers through the Panel of Counsel. 171

  See Art 11 of the Statute of the United Nations Administrative Tribunal (hereinafter Statute of the UNAT) (GA Res 957(X) (1955)). Under the previous system, there had been a UN Committee on the Applications for Review of the Judgments of the Administrative Tribunal. Member states, the Secretary-General, or the staff members involved could initiate the procedure acting within the framework of Art 11 of the Statute of the UNAT. As a result, the ICJ issued Advisory Opinions relating to UNAT in 1973, 1982, and 1987. As the ICJ became busier, there was an initiative at the Court in the 1990s to end such UNAT appeals, based on the idea that the ICJ should not be the final court of appeal for employer– staff disputes. Such disputes did not fall within the ICJ’s expertise in general international law and also took up valuable time that could be spent on the settlement of inter-state disputes or on advisory proceedings. When the General Assembly removed the provision for review of UNAT decisions by the ICJ in 1995, it stated that the procedure that had existed since 1955 had ‘not proved to be a constructive or useful element in the adjudication of staff disputes within the Organization’ (GA Res 50/54 (1995), preamble). 172

  In 1954, the Executive Board of UNESCO, acting within the framework of Art XII of the Statute of the Administrative Tribunal of the International Labour Organization (hereinafter Statute of the ILOAT) (adopted by the International Labour Conference on 9 October 1946 and amended by the Conference on 29 June 1949, 17 June 1986, 19 June 1992, 16 June 1998, 11 June 2008, and 7 June 2016), decided to challenge two decisions rendered by the Tribunal and to refer the question of their validity to the Court for an Advisory Opinion. In 2010, the Executive Board of the IFAD requested an Advisory Opinion from the ICJ regarding an ILOAT decision. The IFAD is one of the specialized agencies authorized by the General Assembly, on the basis of Art 96(2) of the UN Charter, to request Advisory Opinions of the Court on legal questions arising within the scope of their activities (Art XIII, para 2 of the Relationship Agreement between the United Nations and the International Fund for Agricultural Development; and Art XII of the Annex to the Statute of the ILOAT). In Judgment No 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development

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(Advisory Opinion) ICJ Rep 2012, p 10, the ICJ addressed the unequal position of the parties, in that the employer, but not the employee, may challenge a decision of the ILOAT. The Court noted that ‘questions may now properly be asked whether the system established in 1946 meets the present-day principle of equality of access to courts and tribunals. While the Court is not in a position to reform this system, it can attempt to ensure, so far as possible, that there is equality in the proceedings before it’ (ibid, para 44). On 23 June 2016, the Legal Adviser of the ILO advised the Registrar of the ICJ that Art XII of the Statute of the ILOAT—which had continued to exist alongside the revised UNAT 2—was now repealed, as was Art XII of its Annex. Taken together, these provisions had allowed the ILO and other parties to its Statute to contest the validity of a decision by the Tribunal and to submit the matter to the ICJ for an Advisory Opinion. However, this possibility for appeal had not been available to the staff members concerned. While ILOAT continued, these amendments ended recourse to the ICJ, bringing it into line with UNAT 2. 173

  Framework for Accountability for the United Nations Security Management System, para 2; also UN Doc A/57/300 (2002) and UN Doc A/57/365 (2002). See also Statement of the Chief Executives Board on safety and security of United Nations system staff, CEB/ 2009/1, Annex A; GA Res 59/276 (2004), Section XI. United Nations Staff Regulations and Rules, ST/SGB/2014/1, Reg 1.2(c) provides that the Secretary-General, in exercising his/her authority to assign staff members to activities or offices, shall seek to ensure ‘that all necessary safety and security arrangements are made for staff carrying out the responsibilities entrusted to them’. 174

  From 1992 to 2009, 270 UN civilian staff members and 2,468 uniformed personnel were killed as a result of malicious acts, including murder, bombings, landmines, and hijacking. Of the 270 civilians killed, 215 were locally recruited staff: see The Report of the Independent Panel on Safety and Security of UN Personnel and Premises Worldwide (2008), p 14; and at http://www.un.org/en/peacekeeping/resources/statistics/fatalities.shtml. Following the attack on the UN operations in Baghdad in August 2003 in which 22 UN staff (including the UN’s special representative in Iraq) and visitors were killed and 150 individuals injured, the Secretary-General established the Independent Panel on Safety and Security of UN Personnel in Iraq, which issued its report in October 2003, known as the ‘Ahtisaari Report’. The Panel found the UN was inadequate in its ability to respond to warnings, and had insufficient technical and financial resources to design and set up preventive and protective measures. Following the attack on UN Offices in Algiers in December 2007 in which 17 UN personnel were killed and 40 injured, the Secretary-General established the Independent Panel on Safety and Security of United Nations Personnel and Premises Worldwide in February 2008 (Report, Towards a Culture of Security and Accountability: The Report of the Independent Panel on Safety and Security of UN Personnel and Premises Worldwide, June 2008). The Panel observed that in the past, violence against the UN had comprised isolated incidents, but it was becoming more and more the result of deliberate targeting, including by extremist groups. Moreover, 75 per cent of the UN personnel in the field were ‘national staff’, whereas the UN security procedures, practices, and policies were designed for a small population of international staff. See also Secretary-General’s Reports, Strengthening the security and safety of United Nations operations, staff and premises (UN Doc A/59/365 (2004)) and Strengthened and unified security management system for the United Nations (UN Doc A/58/756 (2004)). 175

  The DSS was established in 2005, combining the pre-existing security management functions of the Office of the UN Security Coordinator, the Safety and Security Services, and the civilian field staff security component of the DPKO. As regards the UN System, the Inter-Agency Security Management Network (IASMN) is a forum for the elaboration of security policy and guidelines within the UN. It is chaired by the USG of DSS (UN Doc A/

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62/324 (2007)). It is not a governance body and meets twice a year to discuss and submit recommendations on safety and security to the High-Level Committee on Management (HLCM) and, in turn, to the CEB. 176

  As of December 2016, only 93 member states had ratified the Convention; less than half the UN membership. The Convention defines ‘UN Operation’ as ‘an operation established by the competent organ of the United Nations in accordance with the Charter of the United Nations and conducted under United Nations authority and control: (i) Where the operation is for the purpose of maintaining or restoring international peace and security; or (ii) Where the Security Council or the General Assembly has declared, for the purposes of this Convention, that there exists an exceptional risk to the safety of the personnel participating in the operation’ (Art 1(c)). This Convention shall not apply to a UN operation authorized by the Security Council as an enforcement action under Chapter VII of the Charter, ‘in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies’ (Art 2(2)). The Convention imposes duties to ensure the safety and security of UN personnel (Art 7), and to release or return personnel captured or detained (Art 8); and lists a number of crimes against UN personnel that parties must make punishable by appropriate penalties in their national systems (Art 9). 177

  The Optional Protocol was adopted in 2005 pursuant to GA Res A/60/42 (2005), and came into force on 19 August 2010 (Art 6(1)). As of December 2016, it had 30 parties; around 15 per cent of the UN membership. The Protocol extends the Convention to cover operations involved in delivering humanitarian, political, or development assistance, or emergency humanitarian assistance (Art 2). 178

  United Nations Staff Regulations and Rules, ST/SGB/20141, Reg 8.1(b) provides that staff representative bodies shall be entitled to initiate proposals to the Secretary-General on issues relating to staff welfare, including conditions of work, general conditions of life, and other human resources policies. They are to afford equitable representation to all staff members and shall hold biennial elections. 179

  The Union is composed of a President, two Vice-Presidents, a Staff Council (with a Chair, Deputy Chair and 37 units composed of 150–200 members each), and an Executive Board (nine members). The Union aims to promote and safeguard the rights, interests, and welfare of the staff assigned to the Secretariat, and to provide the Secretary-General and member states with the views of staff on staff welfare and conditions of service (Statute and Regulations of the UN Staff Union, 14 December 2007). In practice, the Staff Union tends to be composed of staff in the General Service category who serve on the Union for long periods. There is a perception that the Union is concerned with narrow, personal issues rather than broad human resources matters. There is great variation among duty stations in terms of how many staff members are contributing members of the Union. At the ICTY and ECLAC, nearly all staff are contributing members, whereas less than one per cent of staff in New York contribute to the Union. 180

  Membership of UNISERV is open to all staff associations of the common system. Its headquarters are in New York. UNISERV acts through an Assembly and an Executive Board. Statute of the United Nations International Civil Servants’ Federation, 7 May 2007. 181

  The SMCC is the Secretariat-wide mechanism for negotiation on staff welfare; it shall endeavour to reach agreement on recommendations to the Secretary-General on policies and procedures, and to monitor the implementation of agreements reached. Agreements can only be reached on matters for which the Secretary-General is the ultimate authority. The SMCC consists of 19 members, including members designated by staff unions of various duty stations, members representing the administration, a President selected by the Secretary-General from a list proposed by staff representatives, and a Vice-President nominated by members. The OLA designates a legal adviser to the SMCC, who participates From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

in a consultative capacity. The SMCC meets annually, but special sessions may be convened as necessary. See Secretary-General’s Bulletin, Staff-Management Coordination Committee, ST/SGB/2002/15, 3 December 2002; and UN Staff Regulations and Rules, ST/SGB/2014/1, Reg 8.2 on joint staff-management machinery. 182

  The JNC seeks mutual agreements relating to staff welfare. Preliminary agreements of the JNC that have Secretariat-wide implications are referred to the Secretariat-wide joint staff-management mechanisms. It consists of four members representing the administration (USG for Management, ASG for Human Resources Management, Director of the Division for Organizational Development of OHRM, and Director of the Operational Services Division of OHRM) and four representing the staff. Meetings are held no less frequently than every two months. Agreements can be reached only on matters for which the Secretary-General is the ultimate authority (Secretary-General’s Bulletin, Joint Negotiation Committee at Headquarters, ST/SGB/2007/9, 15 June 2007). 183

  UN Charter, Art 97.

184

  UN Charter, Art 98.

185

  UN Charter, Art 99.

186

  UN Charter, Art 100(1). Art 100(2) provides: ‘Each Member of the United Nations undertakes to respect the exclusively international character of the responsibilities of the Secretary-General and the staff and not to seek to influence them in the discharge of their responsibilities.’ 187

  For example, SC Res 1757 (2007) stated that it was for the Secretary-General to decide when the STL should commence functioning. This entailed establishing the STL as an organization (eg, finding a building, negotiating a headquarters agreement with the host State, establishing Staff Regulations and Rules and other administrative issuances). This task was delegated to the Office of Legal Counsel, which established a Task Force. Most of the staff of the Task Force transitioned into the Advance Team and then into STL staff. The Office of Legal Counsel (the Tribunals Team) was also de facto administering the UNassisted tribunals (Extraordinary Chambers in the Courts of Cambodia (ECCC), STL, the Special Court for Sierra Leone (SCSL), and the Residual Special Court for Sierra Leone (RSCSL). The OLA appointed judges, prosecutors, and investigators, and became involved when allegations of corruption of the national side of the ECCC surfaced. The OLA also served as secretary for all the Management Committees (and the Principal Donor Group in the case of the ECCC) of the voluntary funded tribunals. For many of these responsibilities there is no explicit legal basis. Since the Secretary-General was asked to implement certain resolutions, the Secretariat had to take on these responsibilities. 188

  Art 6(2) of the League of Nations Covenant stated that ‘the Secretary-General shall be appointed by the Council with the approval of the majority of the Assembly’. The UN Charter reverses the procedure. Although the Charter version may appear to shift the power in favour of the General Assembly, the actual power lies with the Security Council since it controls the choice of candidate presented to the Assembly. See also Chesterman, n 1, 1995–6. 189

  The actual way in which this influence lays the groundwork for the election of a particular candidate remains a mystery. In the past, every attempt to achieve greater transparency was halted by the permanent members, who wished to retain their practice of private consultations. This changed for the 2016 process. 190

  Dag Hammarskjöld was expected to be a behind-the-scenes administrator, ‘a sort of confidential clerk’, but he soon took on political responsibilities and expanded the understanding of the role of Secretary-General (Lash, ‘Dag Hammarskjöld’s Conception of his Office’ (1962) 16 International Organization 542, at 542). While in office, he observed that no aspect of his task was ‘more challenging than the one which consists in trying to From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

develop all the potentialities of that unique diplomatic instrument which the Charter has created in the institution called the Secretary-General of the UN’ (American Association for the United Nations speech, 14 September 1953, UN Press Release SG/336, quoted in Lash, above, at 542, fn 1). See also Perez de Cuellar, ‘Du Secrétaire général, des États et de la Charte des Nations Unies’ in La Charte des Nations Unies, constitution mondiale? (eds Chemain and Pellet, 2006), 195. Kofi Annan also challenged expectations, becoming a vocal critic of the US during the invasion of Iraq in 2003. See Gourevitch, ‘The Optimist’, New Yorker (3 March 2003); Meisler, Kofi Annan: A Man of Peace in a World of War (2007). 191

  ‘Recommendation’ is somewhat misleading, in that the practice is for the Security Council to offer only one candidate to the General Assembly (GA Res 11(I) (1946); Chesterman, n 1, 1996). A proposal by Uruguay at the San Francisco Conference that the Security Council should propose a list of three candidates to the Assembly was rejected ((1945-55) VIII UNCIO 502–3). 192

  See GA Res 11(I) (1946): ‘a vote in either the Security Council or the General Assembly, if taken, should be by secret ballot’. Rule 48 of the Provisional Rules of Procedure of the Security Council (S/96/Rev.7) provides: ‘Any recommendation to the General Assembly regarding the appointment of the Secretary-General shall be discussed and decided at a private meeting.’ But see the vote taken in a private meeting by acclamation to recommend Ban in 2006 (SC Res 1715 (2006)). 193

  UN Charter, Art 27(3). Boutros Boutros-Ghali’s nomination for a second term as Secretary-General was vetoed by the US in 1996 (Gharekhan, The Horseshoe Table: An Inside View of the Security Council (2006), 296). Madeleine Albright, the US Secretary of State, suggested on several occasions that Boutros-Ghali could be appointed in the ICJ (Albright, Madame Secretary: A Memoir (2003), 205). See also Boutros-Ghali, Unvanquished: A US–UN Saga (1999). 194

  According to Rule 55 of the Provisional Rules of Procedure of the Security Council (S/ 96/Rev.7), ‘[a]t the close of each private meeting the Security Council shall issue a communiqué through the Secretary-General’. The early communiqués did not include the names of the candidates or the voting results, but since 1953 the names of the candidates, the identity of the Security Council members who proposed them, and the voting results have been disclosed (1953 UNYB 43ff; Chesterman, n 1, 1996). This may be done by letter (eg, Security Council Official Records (SCOR) (1), 1st series, Supp no 1, Annex 6, p 80; General Assembly Official Records (GAOR) (XXI), Annexes to agenda item 18, 2 December 1966 (UN Doc A/6540), or by the President of the Security addressing the General Assembly in person (GAOR, 61st Session, 31st plenary meeting, 13 October 2006 (UN Doc A/ 61/PV.31), p 1). 195

  The practice has been for the President of the Council to transmit the recommendation by letter of the President of the General Assembly, reproducing the text of the resolution. No communication is sent, however, to the recommended candidate for appointment as Secretary-General. This notwithstanding, there have been instances in the past of communications (cables and letters) sent from the President of the Council to the candidate in question. This was the case in relation to the recommendation for the appointment of Mr Dag Hammarskjöld in 1953 and 1957 (UNSC RP (1952–55) ch VI, p 77 and UNSC RP (1956– 58) ch VI, p 77), Mr U Thant in 1961 (UNSC RP (1959–63) ch VI, p 125), and Mr Kurt Waldheim in 1971 and 1976 (UN RP Supp no 5 (1970–78) vol 5). Thereafter, it appears that the practice was discontinued and none of the candidates recommended as Secretary-

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General was specifically addressed by the President of the Council. The assumption is that the nominating government would convey the decision to the candidate. 196

  This is contrary to the text of Rule 141 of the Rules of Procedure of the General Assembly, n 35: ‘When the Security Council has submitted its recommendation on the appointment of the Secretary-General, the General Assembly shall consider the recommendation and vote upon it by secret ballot in [sic] private meeting.’ At the time of the appointment of the first Secretary-General, the General Assembly agreed to hold a secret ballot in a public meeting (GAOR (1/1), 1st session, 17th plenary meeting, 24 January 1946 (GA Res 11(I) (1946), p 14)). For Secretaries-General Lie, Hammarsjköld, and U Thant, the General Assembly conducted secret ballots. Since Secretary-General Waldheim, the appointment has been made by acclamation: Waldheim (GA Res 2903 (XXVI) (1971)), de Cuéllar (GA Res 36/137 (1981)), Boutros-Ghali (GA Res 46/21 (1991)), Annan (GA Res 51/200 (1996)) and Ban (GAOR, 61st Session, 31st plenary meeting, 13 October 2006 (UN Doc A/61/PV.31), p 2; UN Doc A/61/L.3). 197

  See GA Res 71/L.4 (2016).

198

  GA Res 69/321 (2015), paras 36 and 38.

199

  GA Res 70/305 (2016), para 36. The Accountability, Coherence, and Transparency Group worked hard to make the process in 2016 more transparent and merit-based. 200

  The Secretary-General has not yet been a national of a state that is among the five permanent members of the Security Council. An effort is made to rotate the post among people from different regional groups (Newman, ‘Secretary-General’ in Weiss and Daws (eds), n 55, 175, at 176). 201

  Premier Khrushchev of the USSR declared before the General Assembly that a ‘troika’ of three persons (one from a Western state, one from the Eastern bloc, and one from the Non-aligned Movement) should replace the office of the Secretary-General (GAOR (XV), 869th plenary meeting, 23 September 1960 (UN Doc A/PV.869), p 68). 202

  At the San Francisco Conference, the USSR proposed a period of two years with no possibility for immediate re-election. A proposal for a three-year term with the possibility of re-election was made by the UK and China. Neither proposal gained enough support to appear in the final text of the UN Charter ((1945-55) VIII UNCIO 502–3). 203

  GA Res 11(I) (1946). In setting this term, the General Assembly noted that it should be ‘such as to enable a man of eminence and high attainment to accept and maintain the position’ (para 1). The Preparatory Commission had also proposed a five-year term (Report of the Preparatory Commission (1945), Chapter VIII, Section 1, paras 5–7; Section 2, paras 18–12, PC/20). 204

  See GA Res 71/L.4 (2016) for Secretary-General Guterres for a term of five years; GA Res 61/3 (2006) for Secretary-General Ban for a term of five years. 205

  The Assembly stated that the appointment would be ‘open at the end of that period for a further five-year term’ (GA Res 11(I) (1946), para 3). 206

  Near the end of his first term in office, Secretary-General Lie’s term was extended by three years by GA Res 492(V) (1950) after the Security Council failed to reach an agreement due to the veto exercised by the USSR (1950 UNYB 126; UN Doc A/1471). A public vote was taken by the General Assembly despite the President’s proposal for a secret ballot. This action was not a ‘re-election’ as such, but an extension of the first term pursuant to GA Res 11(I) (1946), motivated by the need to ensure the uninterrupted exercise of the functions of the Secretary-General (Chesterman, n 1, 1996).

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Secretary-General Hammarskjöld was re-elected upon the recommendation of the Security Council in a private meeting and in a secret ballot by the General Assembly. GA Res 1229 (XII) (1957) stated the length of his second term would also be five years (1957 UNYB 119). Secretary-General U Thant’s first term was extended until the end of the 21st session of the General Assembly at his request (UN Doc S/7481 (1966)). The extension was recommended by the Security Council (SC Res 227 (1966)) and accepted in a secret ballot by the General Assembly (GA Res 2147 (XXI) (1966)). One month later, the Security Council recommended U Thant for re-election for a further five-year term (SC Res 229 (1966)), which the General Assembly accepted by secret ballot (GA Res 2161 (XXI) (1966)). Secretaries-General Waldheim (SC Res 400 (1976), GA Res 31/60 (1976), Pérez de Cuéllar (SC Res 589 (1986), GA Res 41/1 (1986)), and Annan (SC Res 1358 (2001), UN Doc A/55/L. 87) have been re-elected following a recommendation of the Security Council and an acceptance by the General Assembly by acclamation. There is no limit to the number of five-year terms a Secretary-General may serve, but none so far has held office for more than two terms. Thus far, only Secretary-General BoutrosGhali has expressly not been considered for a second term. 207

  Both actions take the form of resolutions.

208

  Secretary-General Lie declared his resignation on 10 November 1952 by letter to the President of the General Assembly (UN Doc A/2253) and the President of the Security Council (UN Doc S/2846). The resignation was not accepted by the President of the General Assembly until 7 April 1953, immediately before the vote appointing Dag Hammarskjöld (GAOR (VII), 423rd plenary meeting, 7 April 1953 (UN Doc A/PV.423), p 669, para 2). Secretary-General Lie thus continued in the office of Secretary-General between the time of his declaration of resignation and its acceptance, even though this went beyond the designated expiry date of his extended term (1 February 1953); he was never officially appointed Acting Secretary-General. 209

  Secretary-General Hammarskjöld’s sudden death in a plane crash in 1961 led to the appointment of Sithu U Thant as ‘Acting Secretary-General’ for the remainder of Hammarskjöld’s term. This was achieved through the Security Council’s recommendation of U Thant’s appointment (UN Docs S/4972 (1961), S/4971 (1961), and 1961 UNYB 165), which was accepted by a secret ballot by the General Assembly on the same day (GA Res 1640 (XVI) (1961)). This was the first time that a recommendation of the Security Council was accepted in the form of a resolution by the General Assembly, but this has since been employed again (see GA Res 61/3 (2006) approving Ban as Secretary-General). U Thant’s official appointment as Secretary-General at the end of 1962 was carried out by recommendation of the Security Council, followed by approval by the General Assembly (UN Docs S/5212 (1962), A/5322 (1962), and GA Res 1771 (XVII) (1962)). For the first time, the recommendation and appointment specified the date that his term would end. 210

  The listing of functions is based in part on the framework used by the Preparatory Commission (Report of the Preparatory Commission of the UN, PC/20, 23 December 1945, Chapter VIII, Section 2, para 8). 211

  For example, the Legal Counsel usually represents the Secretary-General at meetings of the Sixth Committee and when the Security Council is considering the reports of international courts and tribunals. During the general debate in the General Assembly, the Secretary-General delegates the USG for DGACM to attend the sessions. He/she only attends when Heads of State, Ministers for Foreign Affairs, or Ambassadors speak during the general debate.

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212

  See para 15.62. See also Rules of Procedure of the General Assembly, n 35, Rule 13(g) (the provisional agenda of a regular session may include ‘[a]ll items which the SecretaryGeneral deems it necessary to put before the General Assembly’). 213

  See Rules of Procedure of the General Assembly, n 35, Rules 45–46; the Provisional Rules of Procedure of the Security Council (S/96/Rev.7 (1983)), Rules 21–26; Rules of Procedure of the Economic and Social Council (E/5715/Rev.2 (1992)), Rules 28, 30, and 31; Rules of Procedure of the Trusteeship Council (T/1/Rev.6 (1962)), Rules 21–25 (the Trusteeship Council suspended operation on 1 November 1994). 214

  When Secretary-General Kofi Annan visited the ICJ in May 1999 to mark the centenary of the 1899 Hague Peace Conference, he made a speech in the Great Hall of Justice. It was shortly after the NATO bombing of Kosovo, and there was ongoing debate as to whether this military action was lawful. Kofi Annan reiterated that force was only to be used in individual or collective self-defence, but then added that it was not enough that states simply berate unlawful uses of force. They had a responsibility, which they were failing to exercise, to ensure that extreme situations of suffering, which a state feels or states feel calls for humanitarian intervention, do not occur. It was not enough to allow such situations to arise and then simply protest at actions, perhaps unlawful, to alleviate them (Annan, ‘SecretaryGeneral says renewal of effectiveness and relevance of Security Council must be cornerstone of efforts to promote international peace in next century’, UN Press Release SG/SM/6997, 18 May 1999). 215

  For example, in the Security Council, the Secretary-General may be appointed as a rapporteur for specified question (Rules 23 and 28 of the Provisional Rules of Procedure of the Security Council (S/96/Rev.7)); he/she must give representatives notice of Security Council meetings (Rule 25) and be responsible for the preparation and distribution of documents (Rule 26). The Secretary-General or his/her deputy acting on his/her behalf, may make oral or written statements to the Council on any question under consideration by it (Rule 22). 216

  See Rule 46 of the Rules of Procedure of the General Assembly, n 35, and Rule 24 of the Provisional Rules of Procedure of the Security Council (S/96/Rev.7). 217

  UN Charter, Art 20(2). The Secretary-General may also be asked to convene international conferences, such as the UN Conference on the Law of the Sea (Chesterman, ‘Article 98’ in Simma et al (eds), n 1, 2002, at 2003). 218

  See, eg, Rules of Procedure of the General Assembly, n 35, Rule 45. The Provisional Rules of Procedure of the Security Council make no reference to attending meetings of committees and subsidiary bodies, but the report of the Committee of Experts of the Security Council recommended that the Secretary-General or the deputy should have the same rights and responsibilities with regard to the meetings of such entities as he/she does with regard to meetings of the Council (Report of the Committee of Experts to the Security Council, SCOR (1), 1st series, Supp no 1, Annex 1f, S/71, p 39; Chesterman, n 217, 2003). 219

  Kofi Annan spoke to UN staff at New York Headquarters after his receipt of the Nobel Peace Prize on behalf of the organization: ‘Nobel award should “urge us forward”, Secretary-General tells staff’, UN News Centre, 12 October 2001. Kofi Annan also addressed staff and answered questions in a town hall-style meeting (including via video with duty stations outside of New York) during the investigation into alleged fraud and mismanagement of the Iraq Oil-for-Food Programme: ‘Meeting with staff, Annan vows to make UN more accountable and transparent’, UN News Centre, 5 April 2005. Ceremonies at various UN locations were held to mourn the UN staff killed in the bombing of the Canal

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Hotel in Baghdad in 2003: ‘In worldwide ceremonies, UN mourns Baghdad terror victims on first anniversary’, UN News Centre, 19 August 2004. 220

  Chesterman, n 217, 2004. For example, the Secretary-General is the designated recipient of technical information from member states: Art 73(e) of the UN Charter provides that member states with responsibility for non-self-governing territories shall ‘transmit regularly to the Secretary-General for information purposes, subject to such limitation as security and constitutional considerations may require, statistical and other information of a technical nature relating to economic, social, and educational conditions in the territories for which they are respectively responsible other than those territories to which Chapter XII and XIII apply’. 221

  Chesterman, n 217, 2004.

222

  Art 12(2) of the UN Charter provides that the Secretary-General, ‘with the consent of the Security Council, shall notify the General Assembly at each session of any matters relative to the maintenance of international peace and security which are being dealt with by the Security Council and shall similarly notify the General Assembly, or the Members of the United Nations if the General Assembly is not in session, immediately the Security Council ceases to deal with such matters’. 223

  Chesterman, n 217, 2004.

224

  GA Res 1202 (XII) (1957) requested the Secretary-General to submit the annual calendar of meetings and conferences to the General Assembly. However, in 1988, GA Res 43/222 B (1988) established a Committee on Conferences to advise the General Assembly on all matters pertaining to the organization of conferences in the UN. The Committee plans and coordinates conferences and meetings in close consultation with the Secretariat and examines the proposals of the Secretary-General on the draft calendar prepared on the basis of his/her budgetary proposals and recommends to the Assembly a draft calendar of conferences and meetings. 225

  For example, GA Res 62/70 (2007) requested the Secretary-General to prepare and submit, after having sought the views of member states, a report identifying ways and means for strengthening and coordinating the activities listed in the inventory of the current activities of the UN system devoted to the promotion of the rule of law at the national and international levels. See also Report of the Secretary-General, Strengthening and coordinating United Nations rule of law activities, UN Doc A/63/226 (2008). Under the Secretary-General’s authority and direction, the responsibility for the overall coordination of the organization’s rule of law work lies with the Rule of Law Coordination and Resource Group, chaired by the Deputy Secretary-General (UN Docs A/61/636–S/2006/980 (2006), paras 48–50). 226

  The Secretary-General has been asked to improve and expedite the availability of texts and documents required for meetings and to control and limit the amount of documentation (Chesterman, n 217, 2004). See, eg, GA Res 52/214 (1997). 227

  The SMG is a committee of senior UN managers that serves as the Secretary-General’s ‘cabinet’ and the central policy-planning body of the UN. It aims to ensure strategic coherence and direction in the work of the organization: see at https://www.un.org/sg/en/ content/senior-management-group. The members are: the Secretary-General; the Deputy Secretary-General; the Chef de Cabinet and Deputy Chef de Cabinet; the USGs for Public Information, Humanitarian Affairs, Management, Peacekeeping Operations, Field Support, Legal Affairs, Political Affairs, General Assembly Affairs and Conference Management, Safety and Security, and Economic and Social Affairs; the High Representatives for Disarmament, for Least Developed Countries, Landlocked Developing Countries and Small Island Developing States; the ASG for Policy Planning; the ASG for Peacebuilding Support; the Executive Secretaries for ECLAC, ECE, ECA, ESCWA, ESCAP; the Executive Directors

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of UNICEF, the United Nations Human Settlements Programme (UN-HABITAT), the United Nations Environment Programme (UNEP), the World Food Programme (WFP), UNFPA, the United Nations Office on Drugs and Crime (UNODC); the Administrator of the UNDP; the High Commissioners for Human Rights, Refugees; the Secretary-General of UNCTAD; the Director-General of the UN Office in Geneva; the Special Adviser on Gender Issues and Advancement of Women; the Special Adviser for the Prevention of Genocide and Mass Atrocities; the Special Representative for Children and Armed Conflict; the Chief Technology Officer. The USG for Internal Oversight Services is an observer. The SMG was approved by the General Assembly in 1997 as part of the reform proposal submitted by Secretary-General Kofi Annan. See UN Doc A/51/950 (1997), p 17. Four Executive Committees were set up in January 1997 for peace and security, economic and social affairs, development cooperation, and humanitarian affairs (ibid, p 15). In 2000–1, an ‘Iraq Group’ was set up with no formal basis. Senior officials would meet two to three times a week, with the Chef de Cabinet chairing the meeting. In 2005, a Policy Committee was established to advise the Secretary-General on issues requiring strategic guidance and cross-cutting thematic policy decisions (UN Doc A/59, 2005). In 2017, Secretary-General Guterres created the Executive Committee and the Deputies Committee. The Executive Committee was established to assist the Secretary-General in taking decisions on issues of strategic consequence, drawing on contributions from the UN’s intergovernmental bodies. The Deputies Committee was established to resolve these issues, leaving only those that require principal-level attention to the Executive Committee. The Deputies Committee will also monitor and report progress on the implementation of decisions taken by the Executive and Deputies Committees. See Letter of Secretary-General Guterres, ‘Establishment of an Executive Committee’, 3 January 2017. 228

  See Arts 60 and 63 of the UN Charter.

229

  See further section 2.5, ‘Chief Executive Board’s role in the common system’. The CEB furthers coordination and cooperation on a range of substantive and management issues facing UN System organizations. See ECOSOC Res 13(III) (1946). 230

  See ch 14, ‘The Financing of the United Nations’, section 1, ‘Regular budget’.

231

  See ch 14, ‘The Financing of the United Nations’, section 4, ‘Voluntary contributions’.

232

  See ch 14, ‘The Financing of the United Nations’, section 1.8, ‘The Working Capital Fund’. See also, eg, GA Res 70/250 (2015). 233

  The General Assembly expressly recognized in its 1st session the authority of the Secretary-General to restructure the Secretariat (GA Res 13(1) (1946)). According to Financial Reg 5.6, the transfer of resources between Departments or Offices requires the approval of the ACABQ, but in practice the ACABQ is only informed ex post facto of such transfers. The creation or abolition of a post, the reformulation of sub-Programmes, or the introduction of new Programmes require full General Assembly approval. Thus, the Secretary-General is only free to transfer resources within Departments or Offices without ACABQ or Assembly approval. The Office of Legal Counsel has advised that the Financial Regulations should not be interpreted so as to limit the authority and responsibility of the Secretary-General to streamline the structure of the Secretariat. ‘Note relating to the powers and rule of the Secretary-General as Chief Administrative Officer of the United Nations in the context of the proposal for the creation of a position of Chief Operating Officer’ [2006] UN Juridical YB 458, at 461; and ‘Note relating to the powers and role of the Secretary-General’ [2006] UN Juridical YB 462, at 465. 234

  Rule 13(a) of the Rules of Procedure of the General Assembly, n 35, requires the annual report to be on the provisional agenda of the regular sessions of the Assembly. The form of the report has changed over time. Initially the reports were quite lengthy, but after the 32nd session of the General Assembly the reports were restricted in scope, and since the 33rd

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session, the reports have been limited to decisive developments in the previous 12 months (Chesterman, n 217, 2008). 235

  UN Charter, Art 98 and ch 28, ‘Peaceful Settlement of Disputes’, section 2.2.3, ‘Investigation of disputes and fact-finding missions’. The Secretary-General prepares studies and analyses of laws and administrative practice relevant to items on the agenda of UN organs; summaries of situations, needs, and available resources in specific fields; the collection and analysis of data received from member states and other international organizations in answering requests for information or comments; working papers, memoranda, proposals, and activity reports; compilations of reference material, bibliographies, and background documentation. See also Chesterman, n 217, 2007–8. The Secretary-General is also responsible for the publication of statistical, financial, cartographic, and demographic material prepared by the Secretariat. 236

  UN Charter, Art 101 and UN Staff Rules and Staff Regulations, ST/SGB/2014/1. The General Assembly has delegated to the Secretary-General the power to make subsidiary legislation (Staff Reg 12.2), but such delegated powers can always ben taken back by the Assembly, such as when the Assembly decided on the question of repatriation grants itself (GA Res 34/165 (1979), pt u, para 3). See ‘Note relating to the powers and rule of the Secretary-General as Chief Administrative Officer of the United Nations in the context of the proposal for the creation of a position of Chief Operating Officer’ [2006] UN Juridical YB 458, at 460. 237

  The Secretary-General’s administrative power is limited by the UN Charter in two respects: the General Assembly’s power to regulate the Secretariat under Art 101(1), and the Assembly’s power to consider and approve the budget under Art 17. The ICJ has held that by virtue of Art 101(1), the General Assembly could ‘at all times’ limit or control the powers of the Secretary-General in staff matters (Effects of Awards of Compensation Made by the UNAT (Advisory Opinion) ICJ Rep 1954, p 60). 238

  ‘Note relating to the powers and rule of the Secretary-General as Chief Administrative Officer of the United Nations in the context of the proposal for the creation of a position of Chief Operating Officer’ [2006] UN Juridical YB 458, at 462. 239

  The Assembly has assumed responsibility for appointing the Executive Director of UNEP and the High Commissioner for Refugees. It has assigned the power to administer staff to the Executive Heads of UNDP, UNICEF, and the UNHCR. The Office of Legal Counsel and the Secretary-General have expressed concern at this extension of the General Assembly’s jurisdiction, but the established nature of the practice and the SecretaryGeneral’s acquiescence makes it very difficult to contest its legality (‘Note relating to the powers and rule of the Secretary-General as Chief Administrative Officer of the United Nations in the context of the proposal for the creation of a position of Chief Operating Officer’ [2006] UN Juridical YB 458, at 460–1). Other examples of the General Assembly dealing with specific matters of staff administration include its urging of the SecretaryGeneral to ensure the successful candidates of the NCRE are offered positions within one year of their selection (GA Res 49/222 (1994), Section I, para 14), and requesting the Secretary-General to take measures to prevent the placement of staff members against higher-level unencumbered posts for periods longer than three months and to issue vacancy announcements within a three-month period (GA Res 51/226 (1997), Section III(B), para 10). GA Res 51/226 (1997) also limited the power of the Secretary-General to move staff within the organization by limiting his/her discretion to appoint and promote outside of established procedures staff to his/her Executive Office, USG and ASG levels, and special

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envoys (Section II, para 5) (‘Note relating to the powers and role of the SecretaryGeneral’ [2006] UN Juridical YB 462, 463–4). 240

  The Secretary-General acts as depositary for amendments to the UN Charter even though ratifications of the Charter are deposited with the US Government (Schwelb, ‘Amendments to Articles 23, 27 and 61 of the Charter of the United Nations’ (1965) 59 AJIL 845; [1964] UN Juridical YB 249 and [1966] UN Juridical YB 261; GA Res 1991 A and B (XVIII) (1963)). The Secretary-General also exercises the function of depositary with respect to the treaties that had been deposited with the Secretary-General of the League of Nations (GA Res 24 (1) part I A (1946)). In general, see Aust, Modern Treaty Law and Practice (2000). 241

  The Secretary-General also accepts regional treaties that are drawn up within the framework of the UN regional commissions and are open for participation to their entire membership (UN OLA, Treaty Section, Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, ST/LEG/7/Rev.1, 1999, paras 28 and 30; ST/SGB/2001/7, 2001). In very rare situations, the Secretary-General will act as depositary for a treaty falling outside these criteria. For example, the Agreement on Succession Issues among the five former Yugoslav states (adopted in Vienna, 29 June 2001, entered into force 2 June 2004). Another example is the Clusters Munitions Convention, which was negotiated outside of the UN. The Secretary-General was asked to be depositary by Ireland. He accepted upon the advice of the OLA. 242

  See [1974] UN Juridical YB 190 and ST/SGB/2008/13, 1 August 2008, s 11.2(a). The Treaty Section of the OLA discharges the responsibility for the depositary functions of the Secretary-General. In practice, the Secretary-General often receives treaty instruments, even though member states are recommended to send them directly to the OLA. The OLA keeps the Secretary-General informed of important developments in depositary practice, as needed. 243

  This last point specifically relates to GA Res 478 (V) (1950). Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, ST/LEG/7/Rev.1, 1999, para 14. It could be said that the depositary practice of the Secretary-General differs in certain ways from the Vienna Convention on the Law of Treaties (VCLT), which entered into force at a date after which the Secretary-General’s practice was already established. The VCLT provides that a reservation to a treaty is considered accepted if no objection is raised within a period of 12 months (Art 20(5)). The Secretary-General, on the other hand, accepts for deposit objections made even after the time lapse provided for in the Convention. When receiving an objection after the expiry of 12 months, the Secretary-General calls it a ‘communication’ when informing the parties concerned of the deposit of the objection (Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, ST/ LEG/7/Rev.1, 1999, paras 210–13). In fact, the Secretary-General does not consider himself to be bound by a provision of the VCLT that imposes on states a time-limit for objections. By accepting an objection for deposit after the 12-month time-limit, the Secretary-General is not taking the position that the reservation is not to be deemed accepted due to this late objection (which would be in contradiction with the VCLT), but is rather informing states of the receipt of the objection. 244

  Information on practice is provided in the Summary of Practice of the SecretaryGeneral as Depositary of Multilateral Treaties, the Treaty Handbook, and the Final Clauses of Multilateral Treaties Handbook, published in paper and online by the Treaty Section of the OLA (see at https://treaties.un.org). Certain legal opinions on depositary practice are published in the UN Juridical YB. Training sessions are conducted for officials and delegates by the OLA at Headquarters twice a year, as well as in different regions. Questions on depositary matters (eg, entry into force of amendments) are directed to the Treaty Section, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

whereas substantive questions about a treaty go to the Office discharging the secretariat functions for the treaty concerned (eg, UNEP for some environmental treaties). 245

  The Treaty Section broadly follows the functions set out in Art 77 VCLT. UN OLA, Treaty Section, Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, ST/LEG/7/Rev.1, 1999, para 11. 246

  All final clauses are sent in draft form to the Treaty Section for approval, and on occasion a staff member may be sent to the treaty conference to ensure that the clauses are drafted correctly. See ST/SGB/2001/7, 28 August 2001, s 4.2. 247

  The Treaty Section is in charge of preparing the original of any treaty deposited with the Secretary-General based on the adopted text submitted by the relevant Department, Office, or Regional Commission. In general, a period of four weeks should be allowed between the dates of adoption and the dates on which the treaties are opened for signature, to enable the preparation of the original and the distribution of certified true copies (ST/ SGB/2001/7, 28 August 2001, para 5.1). 248

  The ceremony is officiated by the Legal Counsel and/or an officer of the Treaty Section.

249

  In its current depositary practice, the Treaty Section accepts for deposit a signed copy of an instrument (eg, full powers or ratification) sent by e-mail or fax, subject to the receipt of the original as soon as possible thereafter (Treaty Handbook, n 244, section 3.3.5). 250

  Depositary notifications are circulated electronically through automated subscription services and published on the official website of the Treaty Section (see at https:// treaties.un.org). 251

  Declarations may be political in nature. The Treaty Section reviews all declarations to treaties that prohibit reservations to ensure that they are prima facie not reservations. Where a treaty is silent on or authorizes reservations, the practice is to make no determination about the legal status of declarations relating to that treaty. The SecretaryGeneral simply communicates the text of the declaration to all states concerned by depositary notification, allowing those states to draw their own legal conclusions as to its status (Treaty Handbook, n 244, section 3.6.5). 252

  For example, as regards reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, after the ICJ gave its Advisory Opinion in 1951, GA Res 598 (VI) (1952) advised the Secretary-General (i) to accept the deposit of documents containing reservations or objections; (ii) to refrain from passing [comment] upon the legal effect of such documents; and (iii) to communicate the text of such reservations or objections to all states concerned, leaving it to each state to draw legal consequences from such communications. This practice was to be followed in respect of reservations to the Genocide Convention and conventions concluded after the date (12 January 1952) of adoption of the Resolution (UN OLA, Treaty Section, Summary of Practice of the SecretaryGeneral as Depositary of Multilateral Treaties, ST/LEG/7/Rev.1, 1999, paras 175–6). 253

  The problem usually involves the status of the new state as concerns treaties the application of which was extended to the previously non-independent Territory concerned by the state that was at the time responsible for its external relations. In the absence of provisions setting specific conditions for succession, the Secretary-General is guided by the participation clauses of the treaties, as well as by the general principles governing the participation of states. The independence of the new successor state is without effect as concerns the treaty rights and obligations of the predecessor state as concerns its own (remaining) territory. For example, after its dissolution the USSR (as the Russian Federation) continued to exist as a predecessor state, and all its treaty rights and obligations continued in force in respect of its territory. The situation is different when the predecessor state disappears. When the Czech Republic and Slovakia were formed upon separation of their territories from Czechoslovakia, each of the new states was in the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

position of a succeeding state (UN OLA, Treaty Section, Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, ST/LEG/7/Rev.1, 1999, paras 297– 8). The depositary practice of the Secretary-General has been relevant to judgments of the ICJ concerning the Balkans: see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), (Judgment) ICJ Rep 2007, p 43, paras 67–79 (on the identity of the respondent party); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (Preliminary Objections) (Judgment) ICJ Rep 2008, p 412 at paras 93–117 (on notification of succession). 254

  If a treaty is open to ‘states’, there is no ambiguity where the entity is a member of the UN or a party to the ICJ Statute. Difficulties arise where an entity that otherwise appeared to be a state could not be admitted to the UN, nor become party to the ICJ Statute due to the opposition, for political reasons, of a permanent member of the Security Council (GA Res 1017 A and B (XI) (1957) concerning exclusion of Republic of Korea and Viet-Nam from membership, and UN RP Supp no 2 (1955–59) vol I, Art 4, para 7). Since there is no veto procedure as regards membership in the specialized agencies, a number of such entities have become members of specialized agencies. For example, UNESCO’s General Conference voted to admit Palestine as a member in October 2011 (for its membership to take effect, Palestine must sign and ratify UNESCO’s Constitution). In order to allow for as much participation as possible, a number of conventions provide that they are also open for participation to member states of specialized agencies. The VCLT, eg, provided that it was open for signature by all member states of the UN, or of any of the specialized agencies, or of the IAEA or Parties to the Statute of the ICJ, and by any other state invited by the General Assembly to become a party to the Convention. This type of participation clause is called the ‘Vienna formula’. Several multilateral treaties adopted under the auspices of the UN are open to participation by ‘all States’ without further specifications (eg, the Convention on the Suppression and Punishment of the Crime of Apartheid and the Convention on the Prevention and Punishment of Crimes against Diplomatic Agents and Other Internationally Protected Persons). The Secretary-General stated that there are certain areas in the world the status of which is not clear, and if he were to receive an instrument of accession from any such area, he would be in a position of considerable difficulty unless the General Assembly gave him explicit directives on the areas coming within the ‘any State’ or ‘all States’ formula. When the ‘any State’ or ‘all States’ formula was adopted, the Secretary-General therefore would be able to implement it only if the General Assembly provided him/her with the complete list of the states coming within the formula, other than those falling within the ‘Vienna formula’. This practice was set out in the understanding adopted by the General Assembly whereby ‘the Secretary-General, in discharging his functions as a depositary of a convention with an “all States” clause, will follow the practice of the Assembly in implementing such a clause and, whenever advisable, will request the opinion of the Assembly before receiving a signature or an instrument of ratification or accession’: [1973] UN Juridical YB 79, fn 9). See, eg, GA Res 3067 (XXVIII) (1973), in which the Assembly invited to the Third UNCLOS, in addition to states at that time coming within the longestablished ‘Vienna formula’, the ‘Republic of Guinea-Bissau’ and the ‘Democratic Republic of Viet Nam’, which were expressly designated in that resolution as ‘States’. Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, ST/LEG/7/Rev.1, 1999, paras 79–83. 255

  Since 2000, the Secretary-General has organized, on an annual basis, a ‘Treaty Event’, coinciding with the General Debate of the General Assembly in September. Every year, the Secretary-General writes to Heads of State and Government, inviting them to participate in the event by signing treaties for which the Secretary-General acts as depositary, and by depositing instruments of ratification or accession to those treaties. As of 2016, these From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

annual Treaty Events have resulted in 2,069 treaty actions, including signatures, ratifications, acceptances, accessions, etc. 256

  The Secretary-General does not give legal advice to individual member states. Certain legal opinions (though certainly not all) are published in the UN Juridical YB. A Committee within the OLA selects legal opinions for publication. 257

  If the legal question comes to the Secretary-General first, the Office of the SecretaryGeneral will send the question (in a letter or a note) to the Legal Counsel marked ‘For Action’, usually with no further commentary. The Legal Counsel also receives oral requests for legal advice in the Policy Committee and SMG meetings. Substantive units of other Departments and Offices may send requests for legal advice directly to the relevant Director in the OLA (eg, the Director of the General Legal Division) rather than channelling the request through the Secretary-General. Clients develop their own practice, and there is no clear policy on when a legal question goes to the Legal Counsel, the ASG, or a Director of a division of the OLA. The respective Division decides by itself whether the advice is signed by the Director, the ASG, the Legal Counsel, or the Secretary-General, depending on the political implications of the matter. Even if the question/request was sent to a Director, the response may be signed by the Legal Counsel or, on fewer occasions, the SecretaryGeneral. As a result of the volume of requests for legal advice increasing over time, Legal Counsel Nicolas Michel created the Office of the Under-Secretary-General for Legal Affairs, with two Professional posts dedicated to examining requests and assigning them to OLA staff members. 258

  If the General Assembly or the Security Council requests the Secretary-General to produce a report on a legal issue, the OLA will draft the report in the Secretary-General’s name and then send it to him/her. The Secretary-General will either send the report directly to the requesting body, or return it to the OLA for changes or with a request to send the report on his/her behalf. When the output is a letter rather than a report, the OLA will draft a Note to the Secretary-General setting out the background and attaching a draft letter in the Secretary-General’s name. Usually, the Secretary-General will sign the letter and send it back to the OLA for delivery to the requesting body. 259

  There is an ongoing problem as to how to allocate requests between these two divisions. In general, the Office of Legal Counsel deals with public international law issues and the General Legal Division deals with in-house legal advice (contracts, procurement, staffing matters), but there can be some overlap between these areas, mostly relating to matters pertaining to privileges and immunities. The majority of legal advice is not ‘signed off’ by the Secretary-General or by the Legal Counsel but by the staff within the Office of Legal Counsel or the Director of the General Legal Division. The Legal Counsel will ‘sign off’ on a legal opinion if it is a direct request from the Secretary-General. The average time to respond to requests varies according to the Division. In the General Legal Division, the request is initially dealt with by the most junior lawyer and works its way up the hierarchy. Each lawyer may have 30–50 pending requests for legal advice, each of which takes between two days and one week to answer. In the Office of Legal Counsel, there are teams of about four lawyers, each of whom work on specific issues (eg Tribunals, Privileges and Immunities, Security and Sanctions, and Peacekeeping). Letters and notes may take one to two days to produce unless consultation with member states is needed. A growing proportion of legal advice is provided via e-mail. 260

  There is a dedicated team in the Office of Legal Counsel working on Tribunal issues. Challenges have included negotiating the agreement between the UN and the Government of Cambodia to establish the ECCC, and bringing into force the agreement between the UN and the Government of Lebanon on the STL in the absence of ratification by the Lebanese Parliament. Such challenges have required a new style of lawyering, emphasizing creativity. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

The role of the UN in territorial administration in Kosovo and East Timor has also provided significant legal challenges. When he was Legal Counsel, Hans Corell introduced a procedure of reading every Security Council resolution ‘with human rights spectacles’ to ensure, eg, that the regulations for Kosovo did not violate international law ((2008) 102 ASIL Proceedings 129, at 134). See also ch 31, ‘Criminal Tribunals Established by, or in Relationship with, the UN’, sections 5, ‘The Extraordinary Chambers in the Courts of Cambodia’; 6, ‘The Special Tribunal for Lebanon’; 7, ‘Kosovo Regulation 64 Panels’; and 8, ‘The East Timor Special Panels for Serious Crimes’. 261

  The Secretary-General is responsible for preparing the list of nominees for election to the Court and submitting it to the General Assembly and Security Council (Art 7 of the Statute of the ICJ). He was responsible for the procedure of determining by lot the initial terms of the office of the first members of the Court (Art 13(2)). The Registrar of the Court must notify the Secretary-General or the dismissal of a member of the Court (Art 18(2)). States parties to the Statute deposit with the Secretary-General their declarations recognizing the jurisdiction of the Court, and the Secretary-General transmits copies to the other parties to the Statute and the Registrar of the Court ((Art 36(4)). The Registrar notifies the members of the UN through the Secretary-General of cases brought before the Court (Art 40(3)). The Court notifies the Secretary-General before the delivery of Advisory Opinions (Art 67). The Court can propose amendments to its Statute by written communications to the Secretary-General (Art 70). 262

  This is usually done by the issuance of a Note Verbale to national authorities, and upon the advice of the Legal Counsel (Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) ICJ Rep 1999, p 62, at paras 6–7, 60–1). The ICJ noted that ‘the Secretary-General, as the chief administrative officer of the Organization, has the primary responsibility to safeguard the interests of the Organization; to that end, it is up to him to assess whether its agents acted within the scope of their functions and, where he so concludes, to protect these agents, including experts on mission, by asserting their immunity. This means that the SecretaryGeneral has the authority and responsibility to inform the Government of a member State of his finding and, where appropriate, to request it to act accordingly and, in particular, to request it to bring his finding to the knowledge of the local courts if acts of an agent have given or may give rise to court proceedings’ (ibid, para 60). See further, ch 16, ‘United Nations Privileges and Immunities’. 263

  Art V, s 17 of the Convention on the Privileges and Immunities of the United Nations 1946. See UN Doc A/116 (1946) and Add.1 and GA Res 76 (I) (1946). While the Convention apparently conferred this power on the Secretary-General, the Secretary-General proceeded by making a proposal to the General Assembly, which the Assembly then endorsed. 264

  Art V, s 20 of the Convention on the Privileges and Immunities of the United Nations 1946 provides: ‘The Secretary-General shall have the right and the duty to waive the immunity of any official in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the United Nations. In the case of the Secretary-General, the Security Council shall have the right to waive immunity.’ See also Art VI, s 23 for a similar provision applying to experts on mission. 265

  He/she is the Chair of the CEB, and also represents the UN at conferences, official functions, and ceremonial and other occasions. See Chesterman, n 217, 2007. 266

  The ICJ held that the UN is capable of maintaining its rights by bringing international claims (Reparation for injuries suffered in the service of the United Nations (Judgment) ICJ Rep 1949, p 174, at 179). The General Assembly subsequently passed a resolution (GA Res 365 IV (1949)) authorizing the Secretary-General ‘to bring an international claim against the Government of a State, Member or non-Member of the United Nations, alleged to be From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

responsible, with a view to obtaining the reparation due in respect of the damage caused to the victim or to persons entitled through him and, if necessary, to submit to arbitration, under appropriate procedures, such claims as cannot be settled by negotiation’ (ibid, para 1). This Resolution adopted a proposal made by the Secretary-General in a report (GAOR, 4th Session, Annex to the Sixth Committee (UN Doc A/955) (1949)). See further ch 11, ‘The Legal Personality of the United Nations’, section 3.1, ‘Position in international law—member states and parties to the Privileges and Immunities Convention’. 267

  See, eg, Judgment in the Incidental Proceedings, in the case between the Foundation Mothers of Srebrenica et al v the Netherlands and the United Nations, District Court The Hague, Case no 295247, judgment of 10 July 2008 (UN as respondent); [1980] UN Juridical YB 224–42 (US Court of Appeals for the District of Colombia Circuit Broadbent et al v Organization of American States: Decision of 8 January 1980) (UN as amicus curiae). 268

  For example, Headquarters agreements or agreements on privileges and immunities (Schermers and Blokker, n 35, 323). 269

  See Siekmann, National Contingents in United Nations Peacekeeping Forces (1991). Status of Forces Agreements, Status of Mission Agreements, and transit agreements with third states are negotiated by the OLA and typically signed by the Head of Mission in theatre, or by the USG for the DPKO at UN headquarters. Memorandums of Understanding (MOUs) with TCCs are typically negotiated by the MOU Unit of the DFS and signed by the USG for the DFS. The situation is analogous with respect to Special Political Missions. Office agreements are typically negotiated by the OLA and signed by the head of the relevant unit. Conference and seminar agreements are typically negotiated by the substantive UN unit involved, with the advice of the OLA, and are signed by the head of that unit. Agreements for major international conferences are, however, typically negotiated by the OLA, except for their technical annexes. 270

  The credentials of representatives and the names of members of the delegation of each member state are submitted to the Secretary-General and are issued either by the Head of the State or Government, or by the Minister for Foreign Affairs (Rule 27 of the Rules of Procedure of the General Assembly, n 35). This relates to credentials to the General Assembly only. There are similar Rules of Procedure for the Security Council (Rules 13–15) and ECOSOC (Rule 17). Credentials of permanent representatives to the UN are another, separate matter: see GA Res 257 A (III) (1948). 271

  During the San Francisco Conference, the majority of members supported the words ‘may bring’ rather than ‘shall bring’ to give the Secretary-General discretion ((1945) UNCIO VII, p 556). A proposal by Venezuela that the Secretary-General should have the option of bringing peace and security matters before the General Assembly was defeated by a large majority (ibid, pp 162–9). The Annual Report of the Secretary-General in accordance with Art 98 was seen as an adequate basis for cooperation with the Assembly (Schwebel, n 57, 20). Uruguay, Iran, and Egypt proposed that the Secretary-General should be able to raise any matter that threatened to violate the principles of the UN Charter. This was defeated by 16:13 at the committee level ((1945) UNCIO VII, pp 168–9). Art 99 of the UN Charter can be compared to the authorization of member states to call ‘any dispute, or any situation’ to the attention of the General Assembly or Security Council (Art 35(1)) and the power of the General Assembly to call the attention of the Security Council to ‘situations which are likely to endanger international peace and security’ (Art 11(3)).

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272

  See ch 28, ‘Peaceful Settlement of Disputes’, sections 2.4, ‘Secretariat’s role in the peaceful settlement of disputes’ and 3.3, ‘Mediation and good offices’ for the SecretaryGeneral’s engagement in good offices, preventive diplomacy, and fact-finding. The Preparatory Commission observed that with the mandate in Art 99, the SecretaryGeneral ‘has been given quite a special right which goes beyond any power previously accorded to the head of an international organization’ (Report of the Preparatory Commission of the United Nations, PC/20, 23 December 1945, Chapter VIII, Section 2, para 16). Art 99 of the UN Charter forms the legal basis for every political activity that the Secretary-General performs on his/her own initiative, and not as an assignment of tasks under Art 98 of the Charter. It is the authorizing clause for declarations, proposals, and draft resolutions that he/she submits to the Security Council (Chesterman, ‘Article 99’ in Simma et al (eds), n 1, 2009, at 2009–10). 273

  Art 99 has been formally invoked only three times: by Secretary-General Hammarskjöld during the Congo Crisis (1960); by Secretary-General Waldheim during the occupation of the American Embassy in Tehran (1979); and by Secretary-General Pérez de Cuéllar in connection with events in Lebanon (1989). The Repertory describes four other cases where the Secretary-General has requested a meeting of the Security Council in respect of its treatment of Art 99: Korea, 1950; India–Pakistan, 1971 (UN Doc S/10410); Iran–Iraq, 1980 (UN Doc S/14196); and Lebanon, 1989 (UN Doc S/20789). During the Congo Crisis, the Secretary-General summoned an urgent meeting of the Security Council on the basis of Art 99 (UN Doc S/4381) and recommended that he should be authorized to send UN military assistance to the Congo: see SCOR (15), 873rd meeting, 13–14 July 1960. During the occupation of the American Embassy in Tehran, the SecretaryGeneral sent a communication to the President of the Security Council calling upon the Security Council to convene an emergency meeting (UN Doc S/13646 (1979)). SC Res 457 (1979) followed the Secretary-General’s assessment of the situation and asked him to offer his good offices. See also Chesterman, n 272, 2015. The Lebanon situation in 1989 led the Secretary-General to send a letter to the President of the Security Council expressing deep concern and asking that the Security Council be convened urgently (UN Doc S/20789 (1989)). The Secretary-General later explicitly acknowledged that he had invoked Art 99 (Report of the Secretary-General of 22 November 1989 on the situation in the Middle East (UN Doc S/20971 (1989)), para 43). The Security Council met immediately and adopted a presidential statement appealing to all the parties to observe a total and immediate ceasefire, and inviting the Secretary-General to pursue all appropriate contacts (UN Doc S/ 20790; UNSC RP (1989–92) ch VI, pp 219–20). The Security Council regularly encourages the Secretary-General to convey his/her assessment of potential threats to international peace and security in accordance with Art 99: see, eg, SC Res 1296 (2000), 1366 (2001), 1625 (2005), and 2171 (2014). The General Assembly has also encouraged him/her to make use of the power conferred by that Article: see, eg, the Annex to GA Res 43/51 (1988). In practice, the Secretary-General tends to raise issues in a bilateral context with the permanent members of the Security Council, rather than resorting to the formal invocation of Art 99. 274

  Schwebel refers to the ‘shadow’ of Art 99 and the difference between ‘invoking’ and ‘employing’ it (Schwebel, n 57, 84–7). See also Gordenker, The UN Secretary-General and the Maintenance of Peace (1967), 139, 143, on the ‘use by implication’ of Art 99. SecretaryGeneral Hammarskjöld stated the Article gave ‘by necessary implication, a broad discretion to conduct inquiries and to engage in informal diplomatic activity in regard to matters which might threaten the maintenance of international peace and security’ (Dag Hammarskjöld, ‘The International Civil Servant in Law and in Fact’, Oxford Lecture, 30 May 1961, in Foote (ed), The Servant of Peace: A Selection of the Speeches and Statements of Dag Hammarskjöld, Secretary-General of the United Nations 1953–1961 (1962), 335).

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Secretary-General Boutros-Ghali stated that Art 99 recognized that preventive diplomacy was a particular responsibility of the Secretary-General, in his Agenda for Peace (UN Doc S/ 24111, paras 23–7); see also Boutros-Ghali, ‘An Agenda for Peace: One Year Later’ (1993) 37(3) Orbis: A Journal of World Affairs 324. See also Newman, n 200, 178. The Repertory of Practice of United Nations Organs states that ‘the implicit powers of the Secretary-General in the spirit of Article 99 have been more liberally construed to include the right to initiate fact-finding missions, investigative commissions and the offer of good-offices or mediation’ (UN RP, Supp no 8 (1989–94) vol VI, Art 99). The implicit powers created by Art 99 have been recognized by the Security Council: see, eg, Statement by the President of the Security Council of 30 November 1992 (UN Doc S/24872); UNSC RP, Millennium Supp (2000–03) ch VI, p 61. For examples of practice related to the implicit rights conferred by Art 99, see Chesterman, n 272, 2015–21, as well as the Repertoire of the Practice of the Security Council, Ch VI in each Supp. See also ch 28, ‘Peaceful Settlement of Disputes’. 275

  During the Congo Crisis in 1960, the Security Council authorized Secretary-General Hammarskjöld under Art 98 to undertake political duties to re-establish peace (SC Res 143 (1960), UN Doc S/4405 (1960), para 2; SC Res 145 (1960), UN Doc S/4405 (1960), para 3; SC Res 146 (1960), UN Doc S/4426 (1960), para 1; UNSC RP (1959–63) ch I, p 9). Nonetheless, no political competences exist independently of Article 99 (Chesterman, n 272, 2009, 2010; Hammarskjöld, n 274, 340). 276

  For this purpose, the Office of Research and Collection of Information was established in 1987, but it was abolished in 1992 due to a lack of appropriate infrastructure and personnel issues (JIU/REP/95/13, Strengthening of the United Nations Capacity for Conflict Prevention, para 127). The DPA regularly provides the Secretary-General with analytical reports and briefing notes to help detect and respond to potential crises. See also ch 28, ‘Peaceful Settlement of Disputes’. 277

  See ch 29, ‘The International Court of Justice’, section 3.4, ‘Advisory Opinions’. As far back as 1950, the Secretary-General’s report on the Human Rights Committee to be established under the International Covenant on Civil and Political Rights proposed that the Secretary-General be entrusted by the General Assembly ‘with the function of considering suggestions of the Human Rights Committee in regard to requests for Advisory Opinions arising out of that Committee’s work’ (UN Doc E/1732 (1950), p 7); Higgins, ‘The Current Health of Advisory Opinions’ in Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (eds Lowe and Fitzmaurice-Lachs, 1996), 567, at 569). The issue was raised again by the Secretary-General in 1955 with regard to Advisory Opinions on legal questions regarding UNAT judgments (Judicial Review of United Nations Administrative Tribunal Judgments, Working Paper submitted by the Secretary-General, UN Doc A/AC.78/L.1 and Corr.1 (1991)). The suggestion was revived by Secretaries-General Pérez de Cuéllar and Boutro Boutros-Ghali (see 1990 and 1991 Annual Reports by Secretary-General Pérez de Cuéllar (UN Doc ST/DPI/1095 and A/46/1, p 4; [1992] UN Juridical YB 443–5; An Agenda for Peace, UN Docs A/47/277, S/24111 (1992), para 38). This time the focus was the role of the Secretary-General and the ICJ with respect to peace and security, rather than the idea of the Secretary-General’s being a ‘facilitator for more lowly organs to ask for advisory opinions (Higgins, above, 570–4). In GA Res 47/120 B (1993), Section III, para 6, the General Assembly merely decided to keep the proposal ‘under examination’. The issue was considered in detail by the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization in 1992 (see the Report A/47/33), but consensus could not be achieved. The issue appears to have been exhausted.

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See also Schwebel, ‘Authorizing the Secretary-General of the United Nations to Request Advisory Opinions of the International Court of Justice’ in Essays in International Law in Honour of Manfred Lachs (ed Makarczyk, 1984), 519; Fleischauer, ‘The Constitutional Relationship between the Secretary-General of the United Nations and the International Court of Justice’ in Boutros Boutros-Ghali amicorum discipulorumque liber: paix, développement, démocratie (vol I, 1998), 451. 278

  The Secretary-General does, however, usually submit a dossier of materials to the ICJ pursuant to Art 65(2) of the Statute of the ICJ (‘Questions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a written request containing an exact statement of the question upon which an opinion is required, and accompanied by all documents likely to throw light upon the question’). These dossiers often number hundreds of pages: see, eg, the dossiers in Legality of the Threat or Use of Force of Nuclear Weapons (Advisory Opinion) ICJ Rep 1996, p 226; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Rep 2004, p 136; Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (Advisory Opinion) ICJ Rep 2010), p 403. A former UN Legal Counsel, Hans Corell, has noted the difficulties inherent in preparing a complete factual dossier for an Advisory Opinion, and observed that the Court should not feel limited to basing its opinion on the dossier ((2006) 100 ASIL Proceedings 405). 279

  GA Res 52/12 B (1997). The Deputy Secretary-General also assists the SecretaryGeneral in managing the operations of the Secretariat, and acts for the Secretary-General at UN Headquarters in the absence of the Secretary-General and in other cases as may be decided by the Secretary-General. The Secretary-General appoints the Deputy SecretaryGeneral following consultations with member states and in accordance with Art 101 of the UN Charter; the term of office of the Deputy Secretary-General will not exceed that of the Secretary-General. 280

  See UN Doc A/51/950/Add.1 (1997).

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Part 2 The United Nations: What it is, 16 United Nations Privileges and Immunities Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): Diplomatic immunity — Immunity from jurisdiction — Responsibility of international organizations

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(p. 544) 16  United Nations Privileges and Immunities 1.  Sources of privileges and immunities 16.01 2.  Reasons for the conferral of privileges and immunities 16.19 3.  Privileges and immunities of the organization 16.27 4.  Privileges and immunities of representatives of member states 16.47 5.  Privileges and immunities of officials of the organization 16.61 6.  Privileges and immunities of experts on mission 16.79 7.  Abuse, waiver, and settlement of disputes regarding privileges and immunities 16.83 8.  Privileges and immunities during peacekeeping operations 16.85 9.  Immunities of international organizations and the jurisdiction of international criminal tribunals 16.106 Ahluwalia, The Legal Status, Privileges and Immunities of the Specialised Agencies of the United Nations and Certain Other International Organizations (1964); Amerasinghe, Principles of the Institutional Law of International Organizations, (2005), ch 10; Bekker, The Legal Position of International Organizations: A Functional Necessity Analysis of their Legal Status and Immunities (1994); ‘Article 105’ in La Charte des Nations Unies. Commentaires article par article (3rd edn, eds Cot, Pellet, and Forteau, 2005); Dominicé, ‘L’immunité de juridiction et d’exécution des organisations internationales’ (1984-IV) 187 RCADI 145; Jenks, International Immunities (1961); Miller, ‘United Nations Experts on Mission and their Privileges and Immunities’ (2007) 4 Int Org L Rev 11; Miller ‘United Nations Officials and their Privileges and Immunities’ (2007) 4 Int Org L Rev 169; Miller, ‘The Privileges and Immunities of the UN’ (2009) 6 Int Org L Rev 7; Muller, International Organizations and their Host States: Aspects of their Legal Relationship (1995); Reinisch, International Organizations before National Courts (2000); Reinisch (ed), The Conventions on the Privileges and Immunities of the United Nations and its Specialized Agencies: A Commentary (2016); Rieck, Privilegien und Immunitäten von im Auftrag der Vereinten Nationen oder einer ihrer Sonderorganisationen tätigen Sachverständigen (1994); Sands and Klein (eds), Bowett’s Law of International Institutions (6th edn, 2009); Schmalenbach, Die Haftung internationaler Organisationen im Rahmen von Miliäreinsätzen und Teritorialverwaltungen, (2004); Tauchmann, Die Immunität internationaler Organisationen gegenüber Zwangsvollstreckungsmaßnahmen (2004); Vorkink and Hakuta, Lawsuits against International Organizations: Cases in National Courts Involving Staff and Employment (1983); (p. 545) Ziegler, ‘Article 104’ and ‘Article 105’ in The Charter of the Nations: A Commentary (3rd edn, eds Simma et al, 2012); Legislative Texts and Treaty Provisions concerning the Legal Status, Privileges and Immunities of International Organizations, 1959 (ST/Leg/Ser. B/10); Practice of the United Nations, the Specialized Agencies and the IAEA concerning their Status, Privileges and Immunities: Study Prepared by the Secretariat, UN Doc A/CN/L.118 and Add 1 and 2, 1967, YBILC 1967, II, p 154; The Practice of the United Nations, the Specialized Agencies and the IAEA concerning their Status, Privileges and Immunities: Study Prepared by the Secretariat, UN Doc A/CN,4/L.383 and Add 1–3, 1985, YBILC 1985, II, p 145.

1.  Sources of privileges and immunities 1.1  The United Nations Charter

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16.01  International organizations like the UN require certain privileges and immunities from national jurisdictions for the effective performance of their tasks. These privileges and immunities are granted to preserve the independence of the UN from its member states and to secure the international character of the organization. The obligations of states to accord privileges and immunities to the UN and to certain persons connected with the organization derive from a number of sources. These sources include: the Charter; other multilateral and bilateral treaties; and customary international law. The domestic law of various states also sets out the privileges and immunities of the UN. 16.02  Article 105 of the UN Charter provides that the organization shall enjoy in the territory of each of its members such privileges and immunities as are necessary for the fulfilment of its purposes. The Charter also provides that the representatives of the members of the UN and officials of the UN shall enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the organization.1 16.03  Separate provision is made in the Statute of the International Court of Justice (ICJ), which is annexed to the Charter, for the judges of the Court and for agents, counsel, and advocates of parties who appear before it. Judges are to enjoy diplomatic privileges and immunities when engaged on the business of the Court,2 while agents, counsel, and advocates representing a party before the Court are to enjoy the privileges and immunities necessary for the independent exercise of their duties.3 16.04  Although the Charter contains an obligation on UN members to confer privileges and immunities on the organization, its officials, and representatives of other member states, the Charter provisions do not themselves specify what those privileges and (p. 546) immunities ought to be.4 The details of those privileges and immunities are to be found in other agreements concluded by states for the benefit of the organization, or agreements concluded between the organization and states. The main multilateral agreement that confers privileges and immunities on the organization and certain persons connected to it was concluded on the recommendation of the General Assembly.5 It is thus to be regarded as concluded in implementation of Article 105(3) of the Charter, which empowers the General Assembly to make recommendations or propose conventions with a view to determining the details of the privileges and immunities provided for in the Charter.6 16.05  Despite the many other agreements detailing the privileges and immunities to be accorded to the UN, its officials, and other persons who perform functions in connection with the organization, the fact that the Charter provides, even in such general terms, for privileges and immunities remains significant. In the first place, the Charter provisions bind all UN members. This means that all members have an obligation to confer privileges and immunities necessary for the functioning of the organization, even if the state concerned has not entered into any further agreement specifying which particular privileges and immunities are to be accorded.7 In such a (p. 547) case, the obligation of the state is to be determined by reference to the functional necessity of the privilege and immunity claimed, having regard to the contents of the UN Charter. Second, Article 105 of the Charter may impose obligations that go beyond the particular obligations established by subsequent treaties dealing with privileges and immunities.8 Third, the presence in the Charter of an obligation to confer privileges and immunities means that, under Article 103, these obligations will prevail over any inconsistent obligations that states may have under other agreements.9

1.2  Treaties conferring privileges and immunities

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16.06  Since the UN Charter does not specify the details of the privileges and immunities, the precise content of the Charter obligation is to be found in treaties that set out the privileges and immunities considered necessary for the independent functioning of the organization and of persons who exercise functions in connection with the organization. These privileges and immunities are set out in two multilateral conventions, which specifically deal with the status of the UN and of representatives and missions of states to the UN. They are also to be found in numerous bilateral agreements concluded between the UN and individual states, when the UN undertakes activities within that state.

(p. 548) 1.2.1  General multilateral conventions 16.07  The Convention on Privileges and Immunities of the United Nations10 (hereafter ‘UN General Convention’) is the main multilateral treaty specifying the privileges and immunities of the organization and of persons who exercise functions connected with it. The Convention was approved by the General Assembly in 1946,11 acting in accordance with Article 105(3) of the UN Charter. It fleshes out the obligation to accord privileges and immunities under Article 105 of the Charter.12 To that extent, the substance of the Convention is binding on all members of the UN. In addition to provisions with respect to the organization, its officials, and the representatives of members, the Convention also provides privileges and immunities for experts performing missions for the UN. An interesting feature of the Convention is that although it was concluded for the benefit of the organization and creates obligations for states with respect to how they treat the organization and persons connected with it, the UN is not itself a party to the Convention.13 Nevertheless, the UN must be (p. 549) considered as deriving rights from the Convention, and is entitled to invoke those rights against parties to the Convention who may be in breach of their obligations.14 16.08  The other multilateral convention that deals with immunities of persons who exercise functions in connection with the UN is the Vienna Convention on the (p. 550) Representation of States in their Relations with International Organizations of a Universal Character.15 The term ‘international organizations of a universal character’ is defined as including, but is not limited to, the UN and its specialized agencies.16 The Convention will only apply where it has been accepted by the host state and the organization has adopted a decision implementing the relevant provisions of the Convention.17 Many of its provisions are modelled on the corresponding provisions of the Vienna Convention on Diplomatic Relations. The Convention makes provision for the privileges and immunities of permanent missions of member states, as well as permanent observer missions of non-member states.18 In accordance with the existing practice of host states, the Convention grants the same privileges and immunities to members of permanent missions as are granted to members of diplomatic missions. However, the Convention goes beyond existing law in granting those same privileges and immunities to members of permanent observer missions,19 and to delegations and observer delegations to organs and conferences.20

1.2.2  Bilateral agreements 16.09  The privileges and immunities that are enumerated in the General Convention are the minimum privileges and immunities necessary for the UN, and those who exercise functions connected with it, to operate effectively and independently.21 However, (p. 551) there are circumstances in which these privileges and immunities may need to be supplemented. The particular relationship between the UN and a state, or the nature of the particular operation carried out by the UN, may justify the conclusion of an additional agreement, even in cases where the state is party to the General Convention. A fortiori, a bilateral agreement may be needed because the state concerned is not a party to the General Convention, or is not even a member of the UN. The UN has entered into numerous

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bilateral agreements with states by which privileges and immunities are conferred on the UN and those who exercise functions connected with it. 16.10  The special relationship between the organization and the states that host the Headquarters of the UN (the US) and major offices of the organization or its organs has necessitated the conclusion of bilateral agreements that define that relationship, including the obligations the host state has towards the organization or organ located within its territory.22 In particular, there is an Agreement between the United Nations and the United States Regarding the Headquarters of the United Nations.23 This Agreement defines the premises that constitute the Headquarters District,24 and sets out the powers the UN may exercise within that district, as well as the obligations of the US with respect to that district.25 The Agreement also makes some provision regarding the transit of persons connected with the organization (officials as well as representatives of members), or invited by it, to and from the Headquarters District.26 Although the Agreement makes particular provision for the privileges and immunities of resident representatives of member states,27 the immunities of the organization itself, as well as of officials and temporary representatives of members, are left largely unregulated by it. 16.11  Given that Switzerland is the host state for the European offices of the UN and of a number of UN organs, the UN has an agreement with Switzerland that covers the (p. 552) privileges and immunities of the UN.28 Although Switzerland was not a party to the General Convention at the time when this agreement was entered into (nor was it even a member of the UN), the agreement is modelled on the General Convention and contains similar provisions. There is also an agreement in the form of an exchange of letters between the ICJ and the Netherlands with regard to the privileges and immunities of the judges, staff, and other persons who work in connection with the Court (including representatives of parties before the Court).29 This has generally proved to be a satisfactory arrangement, but it has not been without its difficulties. 16.12  Each year, the UN also concludes numerous agreements with states regarding the establishment of UN offices, centres, or institutions, or regarding arrangements for UN meetings to be held in a particular country.30 United Nations programmes and (p. 553) Funds also conclude numerous agreements each year concerning technical cooperation and assistance, which include provisions on privileges and immunities.31 Finally, when UN peacekeeping operations or observer missions are to be introduced into a particular state, the UN concludes a Status of Forces Agreement with the state on whose territory the forces are located. These agreements typically include provisions on the privileges and immunities of the Force and its members.32

1.3  Customary international law 16.13  In addition to (and because of) the treaty provisions considered,33 the UN is entitled under customary international law to such privileges and immunities as are necessary for the independent functioning of the organization.34 In particular, the provisions of the General Convention, in addition to the fact that they flesh out the requirements (p. 554) of Article 105 of the UN Charter, also articulate rules that have become part of customary international law as it applies to the UN.35 This means that the essence of the obligations stated in that Convention is binding not only on states parties, but today is regarded as binding on all states.36 The fact that these obligations exist in customary international law will also be significant for those states in which treaties are not (p. 555) automatically incorporated into domestic law but where customary international law forms part of domestic law.37

1.4  National law

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16.14  Privileges and immunities of the UN are intended to be enjoyed within the national legal order, since they provide either for exemption from certain substantive rules of national law or for exemption from the jurisdictional reach of domestic authorities. This means that for such privileges and immunities to be effective, they must be reflected in, or at least respected by, domestic law. For this reason, many states have enacted domestic legislation governing the privileges and immunities of the UN and other international organizations. These laws are usually enacted in order to give effect to the international obligations of the state concerned, though in some cases they may provide privileges and immunities that go beyond what international law requires.38 In cases where there is no domestic legislation granting immunity to the UN, the organization’s immunity may still be recognized as flowing directly from the relevant treaties or from customary international law. Additionally, national courts may take the view that national law and national judicial competence do not apply to certain functions and disputes involving international organizations, thus reaching a position similar to that required by international law immunities.39

(p. 556) 1.5  Relationship between sources of law providing for privileges and immunities 16.15  Where national law fails to accord the privileges and immunities required by international law, the provisions of the national law cannot be invoked in international law as justification or excuse for violation of the state’s international obligations.40 The position under domestic law may well be different. 16.16  Given that privileges and immunities may be set out in different treaties, questions arise as to the relationship between these treaties. In particular, questions arise as to the relationship between the General Convention and bilateral treaties. The matter may be settled by the treaties themselves. For example, the US/UN Headquarters Agreement is to be regarded as complementary to the provisions of the General Convention. In so far as any provision of this agreement and any provisions of the General Convention relate to the same subject matter, the two shall wherever possible, be treated as complementary so that both provisions shall be applicable and neither shall narrow the effect of the other; but in the case of absolute conflict, the provisions of this agreement shall prevail.41 In other words, to the extent that one agreement provides obligations or rights not contained in the other, those rights and obligations are to be regarded as additional to the rights and obligations that are conferred in the other treaty. In short, both agreements are cumulative. This is important, as neither agreement is exhaustive of the privileges and immunities accorded, and they do not deal with exactly the same subject matter. For example, the General Convention expresses the general rule that the UN is immune from legal process,42 and this provision is not to be found in the Headquarters Agreement. By contrast, though the General Convention grants immunity to representatives of states only with respect to words spoken or written or (p. 557) acts done in their capacity as representatives,43 the Headquarters Agreement grants resident representatives the same privileges and immunities as are accorded to diplomatic envoys, which are considerably wider.44 However, if circumstances arise in which there is a genuine conflict, that is, the party concerned cannot fulfil its obligations under both agreements, the Headquarters Agreement prevails.45

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16.17  Other bilateral agreements are also to be regarded as complementary to the General Convention, and as providing additional rights and obligations where they go beyond the General Convention.46 As has been seen,47 some bilateral treaties expressly confirm the applicability of the General Convention but then set out further provisions with regard to issues not specifically covered by the Convention. 16.18  Questions may also arise as to the relationship between those provisions of the UN Charter providing for the immunity of the organization and persons connected with it, on the one hand, and provisions in multilateral and bilateral treaties providing for immunity. In particular, it ought to be noted that while the obligation to grant immunity provided for in Article 105 of the Charter is to grant such immunity as is (p. 558) necessary to enable the organization to perform its functions, the text of some treaties, particularly that of the General Convention, grants the organization absolute immunity from every form of legal process. It has occasionally been argued that since Charter obligations prevail over those arising under other treaties, the immunity of the UN should be limited only to what is deemed necessary on a case-by-case basis.48 However, as has already been stated,49 the General Convention is to be seen as an elaboration of the immunities that the General Assembly deemed to be necessary by the UN for the performance of its functions; and since it constitutes a fleshing out of the provisions of the UN, it is not to be regarded as inconsistent with it.50

2.  Reasons for the conferral of privileges and immunities 2.1  The difference between privileges and immunities 16.19  It is not always easy to draw a precise distinction between privileges and immunities. The relevant treaties do not purport to make any distinction between these terms, and it does not appear that any particular conclusion flows from labelling an exemption accruing to the UN as a privilege or an immunity. To the extent that there is a difference between the two, it may be suggested that an immunity is an exemption from the adjudicatory or enforcement jurisdiction of states but does not exempt the immune person from the jurisdiction of the state to prescribe.51 Therefore, immunity is not an exemption from the application of the law to the entity concerned. The law applies to the organization or the person concerned,52 but the person is exempt from the usual methods of inducing or enforcing compliance. Thus, immunity can be waived, and usual methods of enforcing the law can be brought to bear to secure compliance with a rule that, in any event, had always applied. A privilege, on the other hand, is an exemption from the normal application of the law (eg from the duty to pay certain taxes or customs duties) or the granting of benefits, facilities, or services that may otherwise be restricted by law (eg the right to operate certain (p. 559) communication facilities) or be unavailable (eg the obligation to protect the premises of the UN).

2.2  Functional necessity as the basis for the conferral of UN privileges and immunities 16.20  The immunities accorded to the UN are those that are necessary for the fulfilment of its purposes.53 Likewise, the immunities to which representatives of members, UN officials, or other persons who exercise functions in connection with the UN are entitled are those that are necessary for the independent exercise of their functions.54 The doctrine of functional necessity explains both why the UN and persons connected to it are accorded privileges and immunities, and the privileges and immunities to which they are entitled.55 However, the notion of functional necessity is vague and requires further clarification. The question must be explored why it would be necessary for the UN to enjoy privileges and immunities at all in order for it to fulfil its purposes. This process of clarification is essential, as it must always be borne in mind that the result of the immunity of the organization and persons connected with it is exemption from the enforcement of otherwise From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

applicable national laws and potential denial of access to ordinary judicial fora to third parties with claims against the organization. The following sections specify the reasons why privileges and immunities may be considered necessary.

2.3  Privileges and immunities as protection of the independence of the organization 16.21  The main reason immunities are granted to the UN and other international organizations is to protect the independence of the organization.56 Immunity ensures that (p. 560) national authorities, and other actors, may not unilaterally interfere in the operation of the organization either through direct action against the organization, or against its officials or agents. The independence of the UN is important, because it is established as a collective organization by states to carry out functions in the common interest. It would defeat the collective character of the organization if individual states were able to intervene in its affairs unilaterally and outside the mechanisms of participation provided for in the Charter.57 It is primarily the immunity of the organization and of persons who perform functions in connection with it, as well as the inviolability of the premises of the organization and of persons connected with it, that guarantees the independence of the organization.58 In addition, the exemption from taxation granted to the organization and its officials ensures that host states are not able to exercise indirect control over the work of the UN by exerting financial pressure on it or its staff.59

(p. 561) 2.4  Privileges and immunities as a means of ensuring the equality of member states and preventing the gaining of an undue financial advantage 16.22  Certain privileges are granted to the UN in order to ensure that the position of equality of member states is maintained. In particular, fiscal privileges (namely, the exemption of the organization, and persons connected with it, from certain taxes and charges60) are granted to the organization in the states in which it operates, in order to ensure that these states do not make unintended significant financial gains from the common financial assets of the organization.61 To permit a state on whose territory the organization operates to levy taxes on the organization and its officials would not only open a door through which the state might control the activities of the organization, but would also allow for diversion of a part of the funds provided by all states for the common interest to the benefit of a single state.62

2.5  Privileges and immunities as a means of facilitating the work of the organization 16.23  Privileges and immunities are also granted to the UN, to representatives of members, and to UN officials and others who exercise functions in connection with the UN, in order to facilitate the work of the organization. Some of the privileges conferred on the organization ensure that it is able to conduct its business as smoothly as possible.63 These privileges take into account the fact that the UN is a worldwide organization with a need to transfer funds, move goods, and communicate with its staff. The privileges also recognize that the representatives of states to the organization will (p. 562) need certain freedoms in order to be able to carry out their tasks independently and effectively. Accordingly, the basis for some of the privileges accorded to the organization is similar to the reasons for which privileges and immunities are conferred on those who carry out international relations on behalf of states.

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2.6  Similarities in the basis for conferral of privileges and immunities on the UN and on states and state agents 16.24  The immunities accorded to the UN from the jurisdiction of states are similar in some respects to the immunities states have from the jurisdiction of other states. The similarities lie in the fact that both immunities exempt the organization and other states from the exercise of some of the powers of states. Furthermore, the immunities granted to the UN are accorded in order to secure the independence of the organization and its freedom from interference by states, and this appears similar to the way in which state immunity protects the independence of states.64 Likewise the underlying basis of the privileges and immunities conferred on officials of the UN and other persons who perform functions in connection with the organization is, in some respects, analogous to the reasons for which immunities are conferred on diplomatic envoys and other state agents. International law recognizes that those persons and organs charged with the conduct of international relations may require immunity from the domestic jurisdiction of other states in order to enable them to perform their functions effectively and without harassment from other states.65 For this reason, international law accords privileges and immunities to diplomatic envoys accredited by one state to another.66 It also accords immunity ratione personae to other state officials who are charged with the conduct of international relations.67

2.7  Differences in the basis for conferral of privileges and immunities on the UN and on states and state agents 16.25  Despite their similarities, the analogies between the immunity of the UN (and other international organizations) and the immunities that accrue to states, state agents, and diplomatic envoys may not be pressed too far. In the first place, although both state immunity and the immunity of the UN serve to protect independence, they proceed from different notions. The independence of one state from another state is based on (p. 563) notions of equality, and immunity is reflected in the notion par in parem non habet imperium.68 However, the independence of the UN (and other international organizations) does not proceed from any notion of equality69 but rather from the desire that an organization established by a group of states to carry out common functions should not be subject to unilateral interference by one of these states outside the mechanisms of participation provided for in the structure of the organization.70 On the other hand, while the immunity of foreign states may be justified on the basis that they possess a national legal system to which disputes concerning those states may, at least in the first instance, be referred, the UN does not have a comparable internal judicial system to which all disputes concerning the organization may be referred.71 This would suggest that perhaps the immunity of the UN ought not to be as extensive as that of states. 16.26  There are also key differences between those persons who conduct international relations on behalf of the state, and officials of the UN and those who exercise functions in connection with it, which are significant for the development of the law relating to immunity. States are not obliged to accept as diplomatic envoys of other states persons who possess the nationality of the receiving state; and when they choose to do so, the immunities of such persons are more limited than are generally accorded.72 By contrast, the immunity of international officials and of UN experts on mission may well be most important with respect to the state of nationality of that official or expert. This is because it is the state of nationality (or the state of residence) that possesses the greatest capacity to put pressure on individuals through the application of national law and legal processes.73 A further difference between these types of immunities is that the law relating to diplomatic privileges and immunities is based on the concept (p. 564) of reciprocity. States are encouraged to respect the immunities of diplomats and state agents within their territory in order to prevent any interference with their own diplomats. However, this element of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

reciprocity is lacking with respect to UN officials and agents, since the organization has no comparable power over state agents. Another difference (which may point towards a weakening of immunity of UN officials) is that while state agents continue to be subject to the jurisdiction of the sending state, the UN does not have any general jurisdiction over the acts of its officials and experts.74

3.  Privileges and immunities of the organization 3.1  Immunity from legal process 16.27  The UN, its property, and assets enjoy immunity from every form of legal process, except where this immunity has been expressly waived.75 Immunity from legal process prevents law suits against the UN, or a subsidiary organ of the UN, before domestic courts.76 Clearly, the immunity applies not only to suits in which the organization is a named party;77 it also applies in cases in which the UN is not a party but where the (p. 565) proceedings would create a legal obligation for the UN to abide by the judgment or order of the court.78 A proper interpretation of the UN General Convention suggests that the immunity of the UN from the jurisdiction of domestic courts is not subject to the restrictive immunity doctrine that applies to state immunity. The immunity from legal process is expressed in absolute terms.79 It is therefore inappropriate to apply the principle of state immunity, that jurisdictional immunity exists only in relation to acts jure imperii (in the exercise of sovereign authority) but not with respect to acts jure gestionis (done privately).80 The basis of the immunity of the UN (p. 566) is functional necessity rather than notions of sovereign authority. The members of the UN, acting through the General Assembly in the formulation of the UN General (p. 567) Convention, have determined that the organization is immune with respect to all acts done in the exercise of its functions.81 The immunity of the UN from the jurisdiction of domestic courts applies not only in cases brought against the UN by third parties,82 but also in employment cases brought against the organization by its officials.83 It would also apply with respect to cases concerning disputes arising out of contracts entered into by the UN, or relating to other private law claims asserted by individuals or other third parties.84 The immunity of the UN from ‘legal process’ is very broad. It is immune not only from the actions of judicial agencies, but also from legal processes initiated by administrative and executive agencies. Therefore, its immunity extends to immunity from execution with respect to judgments entered against the UN.

(p. 568) 3.1.1  Waiver of immunity from legal process 16.28  The UN may waive its immunity from legal process. However, such waiver shall not be deemed to extend to any measure of execution.85 This means that no action may be taken by national authorities to enforce a court order against the UN, its property or assets, even in cases where the UN had permitted the suit to go ahead. In the practice of the UN, only the Secretary-General is regarded as competent to waive the immunity of the organization or of its organs.86 16.29  The UN will usually waive immunity where it holds an insurance policy covering liability to a third party and the insurance company is ready to defend the action against the UN.87 Waivers of immunity must be express and must be made with regard to a particular case.88 The UN takes the position that waiver may not be given in advance (for example in a contract) but only on a case-by-case basis once a dispute has arisen.89 However, it is not clear why a waiver provided in a contract with a third (p. 569) party should not be regarded as waiver for ‘a particular case’, since the waiver relates to a specific transaction.90 Questions arise as to whether an agreement to resort to arbitration is to be regarded as a waiver of immunity from the supervisory jurisdiction of the domestic courts with regard to the conduct of the arbitral proceedings and the possibility of confirmation or setting aside the award. Analogy is sometimes made to the position of foreign states, which, under the

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restrictive view of immunity, are deemed not to possess immunity from the supervisory jurisdiction of the courts over arbitral proceedings consented to by a state.91 However, the relevant provision with regard to the UN clarifies that a waiver of immunity must be express, and it is difficult to see how an agreement to subject a dispute to arbitration could constitute an express agreement for the organization to be subject to the judicial power of a state when no reference is made to the jurisdiction of those courts. Moreover, since the UN is bound to submit private law disputes to alternative methods of dispute settlement, and in fact regularly agrees to arbitration,92 to regard submission to arbitration as an agreement to submit to the supervisory jurisdiction of domestic courts is to suggest that the UN (despite the immunity from legal process) is always subject to the jurisdiction of the domestic courts.

3.1.2  Immunity, fairness to third parties, and human rights considerations 16.30  According absolute immunity to the organization leads to the result that third parties who may have claims against it do not have access to ordinary judicial process to resolve those claims (which may well be legitimate). Despite the fact that immunity from adjudicatory and enforcement jurisdiction does not mean that the organization is not bound to respect the law, the organization may be said to be in an unfair position (p. 570) with respect to third parties. As has been seen,93 the immunities accorded to the UN are justified by reference to the need to protect the organization from interference by member states. In that respect, immunity attempts to counterbalance the relatively weak position of the organization vis-à-vis its members. However, the effect of this is that the organization is given a tool that may, potentially, be used to the disadvantage of even weaker entities and individuals. It is for this reason that some national courts have been reluctant to interpret the immunity of international organizations like the UN as being absolute.94 Furthermore, developments in the law of state immunity, by which the immunities of foreign states from the jurisdiction of the courts of other states have been restricted, have suggested a precedent for restricting the immunity of international organizations.95 It may be argued that, as is the case with states, where the UN descends into the marketplace, or otherwise acts in a manner similar to a private party, it should not be immune from the jurisdiction of national courts.96 To allow the UN to remain immune in such cases may lead to a denial of justice, and to justified claims remaining unsatisfied. 16.31  These considerations of fairness are taken into account in the relevant treaties providing for immunity of the UN and in UN practice. In the first place, the UN may waive its immunity in order to permit claims against the organization to proceed before national courts.97 In fact, the UN Secretary-General is obliged to waive the immunity of any official or expert on mission in any case where he/she is of the opinion that the immunity would impede the course of justice and can be waived without prejudice to the interests of the UN.98 Second, and similarly, the UN has an obligation to make provision for appropriate modes of settlement of disputes arising out of contracts or other disputes of a private law character to which the UN is a party.99 Accordingly, the UN regularly makes provision in its contracts for recourse to arbitration.100 However, questions may arise as to whether a dispute is of a private law character, and whether the UN has acted appropriately in refusing to provide for alternative dispute settlement on the basis that a dispute is not of such character.101 (p. 571) In the context of UN peacekeeping, although the claims commissions provided for in the UN Model SOFA to handle private law disputes against peacekeeping missions have never been established, the UN has established ‘local claims review boards’ to handle those claims, in addition to concluding mass claims settlements with host governments.102 Also, the internal legal system of the UN has developed an elaborate judicial procedure for dealing with employment disputes with UN officials.103 Third, UN practice seeks to ensure fairness by obtaining insurance cover to deal with the (p. 572) non-contractual disputes of a private law nature.104 Fourth, the possibility exists for a state to bring claims against the organization on behalf of nationals of that state who have From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

suffered injury at the hands of the UN.105 To the extent that these mechanisms are in place and provide a forum in which a remedy by a potentially aggrieved party may be sought, an appropriate balance is reached between the desire to prevent interference by states in the workings of the organization through the exercise of domestic judicial power, and the obligation of the organization to ensure that justice is done to third parties. Unfortunately, there are cases, some of which, like the Haiti cholera case,106 became notorious, in which there is no insurance coverage or where other mechanisms of dispute settlement do not exist. In such cases, fairness demands that the UN provide a means by which the person concerned can seek redress for his/her claims.107 16.32  A further consideration that ought to be brought to mind in considering the existence and scope of UN immunity is the right of access to courts, which arises from a number of key human rights treaties.108 Although the UN is not a party to these instruments, states that grant immunity to the UN from the jurisdiction of their courts might be faced with claims alleging a violation of the human rights obligations of those states to individuals within their territory.109 The ECtHR has held that cases in which an international law immunity is accorded to an international organization may have implications for the right of access to a court.110 Earlier case law of that (p. 573) Court appeared to suggest that according immunity, even if provided for by treaty, will only be justifiable where the private party concerned has adequate alternative means of pursuing its claims.111 In the 2013 case of Mothers of Srebrenica v The Netherlands, the ECtHR clarified that in exceptional circumstances, according immunity might be justified even if the international organization in question does not offer any alternative means of dispute settlement.112 As far as the UN is concerned, this reasoning is convincing. Since the UN has the various alternative means already specified, it ought in most cases to be held that conferring immunity on the UN is not a violation of the right of access to a court. However, even in cases where there might be a potential violation by a state of its human rights obligations by according immunity to the UN, the fact that the UN’s immunities are derived from the UN Charter and that obligations under the Charter prevail over obligations arising under other treaties in the case of a conflict,113 means that the immunity of the UN ought to be respected.

(p. 574) 3.2  Inviolability of UN premises 16.33  Under the relevant agreements, the premises of the UN shall be inviolable.114 This means that the authorities of the state concerned shall not enter the premises except with the consent of the UN. Service of process may not be effectuated on the premises without the organization’s consent, irrespective of the addressee.115 A fortiori, the inviolability of UN premises means that they must not be attacked by local authorities.116 Because inviolability means that national authorities may not enter without consent, even to maintain public order or to ensure the application of laws concerning health and safety,117 the UN is required to ensure that (p. 575) order is maintained and that equipment and services are operated to an adequate standard.118 16.34  Despite the inviolability of UN premises, local law continues to apply on those premises, and local courts have jurisdiction with regard to acts committed within the premises.119 The continued application of local law to UN premises is important, as the UN, as a general matter, does have not an alternative legal system and court structure that can replace the operation of local law on its premises. However, in order to facilitate the control the UN has over its premises, the organization is empowered to make regulations for the Headquarters District in New York.120 Although US law continues to apply in the Headquarters District,121 regulations made by the UN prevail over US law, and must be

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taken into account by US courts when dealing with cases arising out of or relating to acts done or transactions taking place in the Headquarters District.122 16.35  The obligation to respect the inviolability of the UN’s premises also extends to an obligation on the host state to act with due diligence to protect the UN’s premises and to prevent interference with those premises by private parties.123 This includes a due diligence obligation to prevent unauthorized entry into or attacks on the premises.

(p. 576) 3.3  Immunity of UN property and assets from search and other forms of interference 16.36  In addition to the obligation on states to respect the inviolability of UN premises, ‘the property and assets of the United Nations, wherever located and by whomsoever held, shall be immune from search,124 requisition, confiscation, expropriation, and any other form of interference, whether by executive administrative, judicial or legislative action’.125 The terms ‘search, requisition, confiscation, expropriation’ bear the meaning they ordinarily bear in international law. The immunity is broad and covers any unusually burdensome requirements that would affect the ability of the UN to have access to or to use its property and assets.126

3.4  Inviolability of archives and documents 16.37  The archives and documents of the UN are inviolable.127 The purpose of this protection is to ensure the confidentiality of communications within the organization, and between the organization and members and others. Therefore, the obligation to respect inviolability applies to protect unauthorized disclosure of documents in the context of litigation before national courts.128 In addition, the obligation to respect the inviolability of archives includes an obligation not to coerce the disclosure of information contained in the archives, even when the actual documents are not themselves sought. Thus, states are obliged not to require staff members, former staff members, or other persons to disclose unpublished information held by the UN.129 16.38  Clearly documents held by the UN are part of its archives and inviolable. Also, all documents that ‘belong to’ the UN are inviolable even when they are no longer held by the UN.130 However, the question arises whether documents that have been communicated by the UN to members, observers, or other parties ought to continue to (p. 577) be regarded as part of the UN archives or as ‘belonging to it’.131 In principle, documents communicated to members in the course of the work of the UN ought to be regarded as continuing to benefit from inviolability. This is because members receive these documents not as third parties but in their capacity as part of the organs of the UN, and they are necessary for the work of those organs.132 To fail to respect the inviolability of such documents would be to restrict inviolability simply to documents prepared by the Secretariat and retained by it, since any disclosure to other organs would mean disclosure to member states.133 The effect of this position would be to undermine the confidentiality of communications within the UN.

3.5  Currency and fiscal privileges and immunities 16.39  The privileges and immunities conferred on the UN with respect to currency and fiscal matters illustrate all three reasons why privileges and immunities are conferred on international organizations. In the first place, the UN is granted certain exemptions from domestic taxation in order to avoid the possibility of states exercising indirect control over the work of the UN by creating financial pressures on it. Second, the exemptions from taxation are granted in order to prevent member states from gaining financially from the resources of the organization, which are provided by the member states collectively. Third, fiscal and currency privileges facilitate the work of the organization and prevent members from increasing the financial burden on the organization. For example, the fact that the UN operates all over the world means that it is essential that it be able to transfer the funds needed to carry out its work. A restriction on the ability of the UN to hold and transfer From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

funds would effectively amount to a restriction on the capacity of the organization to carry out its functions. 16.40  The UN General Convention provides: Without being restricted by financial controls, regulations or moratoria of any kind, (a)  The United Nations may hold funds, gold or currency of any kind and operate accounts in any currency; (b)  The United Nations shall be free to transfer its funds, gold or currency from one country to another or within any country and to convert any currency held by it to any other currency. 134

16.41  In addition, some agreements between the UN and states on whose territory the organization operates provide that the most favourable legal exchange rate shall be (p. 578) available to the UN.135 Application of a less favourable of rate of exchange to the UN would amount not only to a breach of the immunity from currency controls, but also to a confiscation or expropriation in breach of the obligation not to interfere with the assets of the UN. 16.42  The UN’s assets, income, and property are immune from direct taxes.136 However, the immunity of the UN does not apply to taxes that are no more than charges for public utility services enjoyed by the organization.137 The question whether a particular charge, fee, or tax is direct or indirect—and if direct, whether it is simply a charge for a public utility service, in which case the UN is not exempt from it—is one that has repeatedly been the subject of attention by the UN Office of Legal Affairs.138 The UN has correctly maintained that whether a tax is regarded as direct (p. 579) or indirect for the purposes of the UN General Convention cannot depend on the meaning given to those terms in the tax laws of member states.139 Rather, those terms must be deemed to have an autonomous meaning under the treaty. Otherwise, states would apply the terms differently and thus have different obligations. 16.43  Direct taxes are those where the burden of paying the tax falls directly on the UN.140 Indirect taxes, by contrast, are those not assessed directly against the purchaser (in this case the UN) but paid by the manufacturer or vendor and then passed on to the UN as part of the purchase price.141 The UN has consistently taken the view that whether a charge is for a public utility depends on whether the charge is directly related to a particular supply or service rendered. Furthermore, the amount charged must be linked to the amount of the supply furnished or the service rendered. Therefore, a flat fee (say, landing charges or parking fees at an airport) or a fee charged (eg for municipal services) not by reference to the amount of supply furnished or service rendered, but instead by reference to the value of the property supplied or some other independent criteria, would, in the view of the UN, be unlikely to be a charge (p. 580) for a public utility service.142 This approach serves to limit the UN’s exposure to taxes quite dramatically. The UN is correct to insist that non-exempt charges must relate to provision of a particular service or supply. All taxes are used for the provision by a state of public goods. Therefore, if the UN’s exemption from taxation were not confined to charges for the provision of particular services or supplies, all taxes might be brought within the exemption. However, it is less clear that the exemption must be confined to charges that are linked to the amount of supply furnished or service rendered to the UN. There seems to be no reason why a state or other entity should

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not choose to charge fees for particular services rendered or furnished as it wishes—either by flat fee, or on an itemized basis, or indeed on the basis of ability to pay.143 16.44  As a general rule the UN is not exempt from indirect taxes, such as excise duties or sales taxes that form part of the price to be paid for movable and immovable property.144 However, when such taxes are charged with respect to important purchases by the UN of property for official use, member states are, wherever possible, to make appropriate arrangements for remission of the duty or tax.145 (p. 581) 16.45  The UN is exempt from customs duties, as well as prohibitions and restrictions in respect of articles imported or exported for official use.146 The exemption from customs duty applies not only to the importation of material used by the UN in its administrative work, but also to the importation of material to be distributed by the UN’s operational programmes.147 Also, the exemption from prohibitions and restrictions means that members may not prevent the UN from importing from particular countries on which the members have imposed a boycott.148 In order to prevent abuse of the customs exemptions being discussed, ‘it is understood, however, that articles imported under such exemption will not be sold in the country into which they were imported except under conditions agreed with the Government of that country’.149 Specific provision is made for exemption from customs duties, prohibitions, and restrictions of UN publications.150 Publications for these purposes include films and recordings, as well as documents. Although publications are items imported for official use, the provision relating to exemption of publications from customs duties and restrictions does not include any restriction on the sale of imported publications. This may be explained on account of the fact that the relevant provision151 is primarily directed at items that have been used by the UN, which then wishes to dispose of them after it no longer has need of them. However, it is usually the case that the purpose (p. 582) of selling publications is to introduce them into distribution networks for dissemination in the first place.152

3.6  Privileges and immunities with regard to communication facilities 16.46  The UN is to enjoy most favourable treatment with respect to its official communications, and no censorship shall be applied to the UN’s official correspondence and communications.153 This means that the UN is to enjoy, in each state, treatment no less favourable than that accorded by that government to any other member in the matter of priorities, rates, taxes on mails, cables, telegrams, etc.154 Thus, whenever new privileges are granted to a government or its diplomatic mission, those privileges must also be granted to the UN.155 The UN is entitled to use codes, and to despatch and receive correspondence by couriers or in bags with the same privileges and immunities as diplomatic couriers and bags.156 Under a number of agreements, the UN may operate radio broadcasting facilities and its own postal services.157 It also (p. 583) flies its own flag on aircraft and ships.158 The UN justifies having its own radio system by its need for direct point-to-point contact (especially when exercising political functions), which cannot be effectively established by ordinary channels.

4.  Privileges and immunities of representatives of member states 4.1.  Purpose of privileges and immunities with regard to representatives

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16.47  For the organization to function effectively as a body with the collective participation of all its members, the representatives of those members to the organization must be free to carry out their work without harassment, and must be able to attend meetings and to communicate with their governments and each other. For these reasons, representatives of UN member states are granted such privileges and immunities as are necessary for the independent exercise of their functions in connection with the organization.159 The functional necessity test160 is therefore the appropriate test for determining which privileges and immunities are to be conferred on representatives of member states. However, because of the similarity between representatives of states to the UN and diplomatic envoys accredited to other states, in practice the former are often granted privileges and facilities that exceed what may be required by the functional necessity test, putting them in a position comparable to that of diplomatic envoys.

4.2  The distinction between resident and temporary representatives 16.48  The requirement in Article 105 of the UN Charter to extend privileges and immunities to representatives of members extends to all persons who represent the state at the UN. Therefore, the obligation applies both to permanent representatives to the organization (who may spend the whole year at the headquarters or other offices of the UN) and to temporary representatives (those who may be assigned to represent the state at a particular meeting or for a relatively short period of time). The term ‘representative’, as used in Article 105 of the Charter and in UN General Convention, has a wider meaning than the same term as used in those provisions of the Charter that provide for the number of ‘representatives’ a member may have in the principal organs of the UN.161 For the purpose of privileges and immunities, the term ‘representative’ means all members of the delegation of a state to the UN, and includes ‘all delegates, deputy delegates, advisers, technical experts and secretaries of delegations’.162 (p. 584) 16.49  The UN General Convention grants privileges and immunities to representatives only while they are ‘exercising their functions and during their journey to and from the place of meeting’. However, under the US/UN Headquarters Agreement, the principal resident representatives of UN members, and such resident members of their staff as are agreed upon between the UN Secretary-General, the US Government and the government of the UN member, are granted the same privileges and immunities as are accorded to diplomatic envoys accredited to the UN.163 Similarly, although Switzerland is not bound by treaty to do so, it accords full diplomatic privileges and immunities to members of permanent missions to the UN’s Geneva Office.164 Therefore, the position is that, in the UN’s major offices, ‘permanent representatives have been granted diplomatic privileges and immunities while temporary representatives, even if of equal or higher rank, have continued to receive privileges and immunities of a more restricted character’.165

4.2.1  The privileges and immunities of resident representatives 16.50  The question of who is to be regarded as a member of a permanent delegation, such that he/she is entitled to diplomatic privileges and immunities, is one that arises from time to time. Under the US/UN Headquarters Agreement, the principal resident representative is designated solely by the UN member, but the eligibility of other resident staff members to diplomatic privileges and immunities is by trilateral agreement between the SecretaryGeneral, the US Government, and the government of the UN member concerned.166 In truth, there are two separate questions here. The first is whether there is a need for agreement before a person can be admitted as part of the delegation or mission of a UN member. The second is whether such (p. 585) person, having been included in the

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delegation, is entitled to diplomatic privileges and immunities under the relevant agreement or legislation.167 16.51  With regard to the first question, it is important to note that representatives of member states are not accredited to the host state. Therefore, unlike the case of diplomatic envoys,168 there is no requirement for prior approval (agrément) of the host state (or of the organization) for the appointment of the head of a UN member’s mission to the UN.169 Likewise, the concept of persona non grata170 does not exist with regard to representatives of member states, and a host state is therefore not, as a general matter, entitled to require their departure (or to consider them unacceptable prior to their arrival).171 However practice is inconclusive as to whether, as is the case with diplomatic and consular missions,172 UN members are free to appoint persons who do not possess their nationality as members of the permanent mission of the state, or whether the approval of the host state is required (especially where the person has the nationality of the host state).173 Although the host state does not have a broad power to control the membership of the permanent mission of a UN member, the host state (p. 586) and the UN itself may exercise some control over membership in two ways. First, the UN and the host state may require the withdrawal from a permanent mission of a person who does not carry out functions in connection with the work of the mission.174 Second, the size of a mission must not exceed what is reasonable and normal, and the host state may request the sending state to reduce the size of its mission.175 16.52  However, the fact that there is no general requirement for host state consent to the inclusion of a person as a member of a permanent mission does not necessarily exhaust the question whether host state consent is required for the granting of certain privileges and immunities to the representative. The fact that a person is a member of a permanent mission generates an entitlement under the Charter and the UN General Convention to functional immunities; that is, immunities must be accorded while the person is exercising his/her functions.176 This is the minimum to which all representatives are entitled. However, whether a resident representative who is not the principal permanent representative is entitled to broader diplomatic privileges and immunities under the US/UN Headquarters will depend on the trilateral agreement of the US, the UN, and the state concerned.177 The requirement of the consent (p. 587) of the host state for these broader privileges and immunities is reasonable given that the burden of these privileges and immunities falls on that state.178 This consent once given should not be withdrawn, except in cases where the host state is entitled to demand withdrawal of the member of the mission. Given that the members of the permanent mission are not accredited to the host state, the consent to diplomatic privileges and immunities ought not to be withdrawn as a result of bilateral tensions between the host state and the member state concerned, or on the basis of reciprocity.179

4.3  Content of privileges and immunities of temporary representatives 16.53  All representatives of UN members are entitled to immunity from personal arrest or detention.180 Furthermore, the documents and papers of representatives are inviolable, and they must be accorded the same immunities and facilities in respect of their personal baggage, which may not be seized.181 In addition, they are immune from legal process of every kind in respect of words spoken or written and all acts done by them in their capacity as representatives.182 Representatives are granted exemptions for themselves and their spouses from immigration restrictions, alien registration, and (p. 588) national service obligations.183 They are also accorded the right to use codes and to receive papers or correspondence by courier or in sealed bags,184 as well as the same facilities with respect

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to currency or exchange restrictions as are accorded to representatives of foreign governments on temporary official missions.185 Lastly, they are entitled to such other privileges, immunities and facilities not inconsistent with the foregoing as diplomatic envoys enjoy, except that they shall have no right to claim exemption from customs duties on goods imported (otherwise than as part of their personal baggage) or from excise duties or sales taxes.186 16.54  This last provision of section 11—paragraph (g)—raises questions as to whether temporary representatives are entitled, after all, to full diplomatic privileges and immunities.187 However, to interpret this provision as conferring all diplomatic privileges and immunities (even in relation to matters covered by paragraphs (a) to (f) of that provision) is to make section 11(a)–(f) redundant. Furthermore, such an interpretation would actually contradict section 11(a), since that provision confers immunity from legal process only with respect to conduct done in the capacity of representative, which is narrower than the immunity accorded to diplomatic envoys. By contrast, serving diplomats have absolute immunity from criminal proceedings (whether or not they relate to official conduct), as well as a broad immunity from civil proceedings, subject only to narrow exceptions.188 The better interpretation is that section 11(g) relates to matters not falling within the scope of paragraphs (a)–(f), and does not extend or widen any of the immunities provided for in those earlier paragraphs.

4.4  Temporal scope of privileges and immunities of temporary representatives 16.55  Privileges and immunities are accorded to temporary representatives only while ‘exercising their functions’, and during the journey to and from the place of meeting.189 (p. 589) In order to prevent these rights from becoming illusory, these words must be construed broadly, and privileges and immunities should not be restricted to times when the representative is actually performing an act in connection with his functions. Rather, the representative benefits from privileges and immunities for the whole time he/she is in a state where he/she is exercising his/her functions, as well as during the journey to and from that place.190 Therefore the immunity from personal arrest and detention should apply not just when the representative is actually performing an act in connection with his/her functions, but also throughout the period in which he/she is in the host state for the purpose of exercising those functions. Furthermore, the immunity from legal process with regard to words spoken or written, or acts done in the capacity of representative, continues to apply after the person has left office.191

4.5  Rights of transit and access to meetings 16.56  The provision stating that immunities and privileges apply during the journey to and from the place of meeting192 guarantees the right of transit to the place of meeting. In addition, representatives are granted exemptions for themselves and their spouses from immigration restrictions and alien registration.193 Therefore, the refusal to grant a visa to a representative of a member in order to prevent him/her from attending a meeting would be a violation of the General Convention.194 The US/UN Headquarters Agreement regulates the matter in more detail and states: (p. 590) The federal, state or local authorities of the United States shall not impose any impediments to transit to or from the headquarters district of (1) representatives of

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Members…or families of such representatives…; … (5) other persons invited to the headquarters district by the United Nations…on official business.195

4.6  Waiver, abuse of privileges, and departure at the request of the host state 16.57  The immunities granted to representatives are not for the personal benefit of the individual but are intended only to safeguard the independent exercise of their functions. Therefore a member has a duty to waive those immunities where they would impede the course of justice and they can be waived without prejudice to their purpose.196 Under the US/UN Headquarters Agreement, a representative of a member may be required to leave where he/she abuses the privileges conferred on him/her.197 However, the person may not be required to leave the US on account of activities performed in an official capacity, and proceedings with respect to that person may only be instituted after appropriate consultation with the member concerned. Moreover, persons entitled to diplomatic privileges and immunities under section 15 of the Agreement shall not be required to leave except in accordance with the customary procedures applicable to diplomatic envoys to the US.198

4.7  Immunities with respect to the property and assets of the mission 16.58  Although the representatives of states are exempt from certain taxes,199 and their personal baggage is immune from seizure, neither the UN General Convention nor the US/ UN Headquarters Agreement contains provisions that explicitly prevent interference with, or taxation of, the assets or property of the member states used in (p. 591) connection with missions to the UN.200 It could be argued that since section 11(g) of the UN General Convention and section 15 of the US/UN Headquarters Agreement provide for immunities and facilities that diplomatic envoys enjoy, representatives of members are entitled to live in and work in premises that are inviolable and not subject to interference.201 It has also been argued that inviolability of premises of the mission or private residence of mission staff may be derived from Article 105(2) of the Charter, as facilities that are necessary for the independent exercise of the functions of the representatives.202 Nevertheless, despite a lack of a clear treaty basis, both US and Swiss law provide exemptions from real property taxes for property held by member states for the official purpose of the mission, or as a residence for the mission’s staff.203

4.8  The position of observers and other invitees to the UN 16.59  Non-member states, as well as other organizations, including national liberation movements, have maintained observer missions at the UN in order to participate in the work of the UN. In addition, other persons are invited from time to time to (p. 592) participate in the work of the UN. Questions have arisen whether the host state is obliged to respect the status of observer missions by refraining from interfering with the offices of the mission. Where an organization has been granted observer status by the UN, it would be a breach of the US/UN Headquarters Agreement to seek to close the office of the organization’s mission to the UN.204 16.60  Permanent observers are not entitled to diplomatic privileges or immunities under the relevant treaties,205 but as ‘persons invited to the Headquarters District by the United Nations…on official business’ they have a right of transit to and from the Headquarters District.206 Moreover, as is the case with representatives of states, when visas are required

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for invited observers or other participants in the work of the UN, they shall be granted without charge and as promptly as possible.207

5.  Privileges and immunities of officials of the organization 5.1  Officials entitled to privileges and immunities 16.61  In order to secure the independence of the UN and of its staff,208 it is necessary to grant them some immunities from the application of national law. Since the UN will most commonly carry out its decisions and functions through the acts of natural persons, the immunities accorded to the UN would be undermined if the persons who carry out its acts are not themselves shielded to some degree from the jurisdiction of national authorities. Accordingly, the Charter provides that UN officials are entitled to such privileges and immunities as are necessary for the independent (p. 593) exercise of their functions.209 These privileges and immunities are elaborated on in the relevant treaties dealing with privileges and immunities.210 16.62  The UN General Convention conferred on the Secretary-General the power to determine the category of officials entitled to immunity under that treaty.211 On the basis of this determination, made in 1946 and maintained since then, all members of staff of the UN, with the exception of locally recruited staff paid on hourly rates, are entitled to the immunities provided for in the UN General Convention and the Charter.212 The exemption for locally recruited staff who are paid on hourly rates is a rather limited exception and must not be regarded as equivalent to a lack of immunity for all locally recruited staff or for junior members of staff in general.213 Moreover, it is not a general exception from immunity for nationals of the state concerned. As the ICJ has noted: Section 15 of the General Convention provides that the [privileges and immunities] … relating to representatives of Members ‘are not applicable as between a representative and the authorities of the State of which he is a national or of which he is or has been the representative’. Article V, concerning officials of the Organization, and Article VI, concerning experts on missions for the United Nations, do not, however, contain any comparable rule. This difference of approach can readily be explained. The privileges and immunities of Articles V and VI are conferred with a view to ensuring the independence of international officials and experts in the interests of the Organization. This independence must be respected by all States, including the State of nationality and the State of residence.214 16.63  Officials or other persons connected solely with treaty organs established within the framework of the UN will not qualify as staff members, and accordingly will not benefit from UN privileges and immunities in cases when such a body is not an organ of the (p. 594) UN.215 By contrast, the UN has concluded numerous agreements, mainly regarding technical cooperation and assistance, establishment of a UN office, or the hosting of a UN conference, under which privileges and immunities are conferred on individuals who would otherwise not qualify under the UN General Convention. Under these agreements, the privileges and immunities provided for under the UN General Convention are accorded to ‘persons performing services’ for the relevant UN programme or office.216 Status of Forces Agreements with host states will similarly provide privileges and immunities to those members of the military component217 of a peacekeeping mission who would otherwise not qualify for immunity under the General Convention.

(p. 595) 5.2  The distinction between diplomatic privileges and immunities and functional immunity

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16.64  The UN General Convention makes a distinction between the privileges and immunities available to the most senior officials of the UN and the privileges and immunities available to the general body of officials. As might be expected, the most senior officials are entitled to a greater range of privileges and immunities than other officials. The general body of officials are entitled only to limited immunities, which relate to exercise of their functions for the UN.218 However, the Secretary-General and all Assistant Secretaries-General shall be accorded in respect of themselves, their spouses and minor children, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.219 16.65  Since the adoption of the UN General Convention, the ranks of Deputy SecretaryGeneral and Under-Secretary-General have also been created, and persons having those ranks are also entitled to diplomatic privileges and immunities. A number of bilateral agreements on privileges and immunity, as well as some national laws and practice, extend diplomatic immunities to persons who do not have a rank as senior as Assistant SecretaryGeneral.220 16.66  Under international law, persons entitled to diplomatic privileges and immunities are not only immune from legal process with respect to their official acts, but also absolutely immune from the criminal jurisdiction of the receiving state (whether with regard to official or private conduct), and have a broad immunity from the civil jurisdiction of the receiving state, subject to only limited exceptions.221 In addition, the private residences of such persons, as well as their papers, correspondence, and property, are considered inviolable.222 Further, such persons enjoy a broader exemption from (p. 596) taxation than is accorded to UN officials.223 Furthermore, the family members of the diplomatic agent who form part of his household are accorded similar privileges and immunities.224 16.67  The most important question that has arisen with respect to status of officials who are entitled to diplomatic privileges and immunities, is whether they are entitled to such privileges and immunities with respect to their national state. A number of states (including the US and the UK) have taken the view that they are not obliged to provide diplomatic privileges and immunities (but only functional immunities) for officials who have their nationality. This position is based on the provisions of the Vienna Convention on Diplomatic Relations, which state that ‘a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions’.225 It has been argued that because the obligation in UN General Convention is to grant the privileges and immunities accorded to diplomatic envoys ‘in accordance with international law’, the limitations that exist in international law must apply in similar fashion.226 It is further argued that to exclude this limitation in the case of senior UN officials would place those officials in a better position than diplomats.227 The UN has, rightly, opposed this view, which permits discrimination among officials on the basis of nationality.228 The drafting history of section 19 of the UN General Convention does not support this discrimination.229 Also, though such (p. 597) a basis for discrimination is explicitly provided for with respect to representatives of members, this is not the case with senior officials.230 States that do not wish to accord diplomatic privileges and immunities to their nationals who hold senior positions within the UN will need to rely on reservations permitting them to do so.

5.3  Immunity from legal process

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16.68  United Nations officials who are not entitled to diplomatic privileges and immunities are immune from legal process, ‘in respect of words spoken or written and all acts performed by them in their official capacity’.231 While the term ‘legal process’ is very broad, the immunity is accorded only with respect to acts coming within a staff member’s official duties. Immunity from legal process includes all measures taken with respect to the exercise of civil or criminal proceedings over the official. It also extends to attempts to compel the official to testify or appear before judicial, quasi judicial, or even parliamentary bodies.232 Likewise, it extends to detention of staff members in connection with their official acts, whether as part of judicial proceedings or not.233 To permit UN officials to be subject to personal liability with respect to, or interference in, their official functions would open up a route through which control of the UN might occur. 16.69  The most important issue with regard to the immunity of officials from legal process is the determination of who is entitled to decide whether a particular act or conduct is official or non-official. Differences of view might emerge between the UN and the state concerned as to whether a particular person is acting in the course of his/her functions.234 To allow this determination to be made unilaterally by the state that (p. 598) wishes to deny immunity might be to eviscerate the immunity.235 Therefore, it is for the UN SecretaryGeneral to determine whether an official whose actions are disputed has acted in exercise of his/her official capacity.236 The determination by the Secretary-General that conduct was undertaken in the exercise of official capacity ‘creates a presumption which can only be set aside for the most compelling reasons and is thus to be given the greatest weight by national courts’.237 Furthermore, since immunity from legal process is a procedural bar that would prevent further steps being taken with regard to the UN official, national authorities are obliged to determine the question of immunity as an initial matter. As the ICJ has held, ‘By necessary implication, questions of immunity are therefore preliminary issues which must be expeditiously decided in limine litis. This is a generally recognized principle of procedural law.’238 In addition, in making the determination as to whether an act is official or non-official, regard is to be had to objective factors relating to the capacity in which the act was done, the means by which it was carried out, and the purpose for which it was done, rather than by reference to the legality of the act.239

5.4  Exemptions from taxation and custom duties 16.70  United Nations officials are exempt from taxation on the salaries and emolument paid to them by the UN.240 They are also entitled to import their furniture and effects free of duty at the time of first taking up their post in the country in question.241 The general principle that the privileges and immunities granted to officials are not for their personal benefit but rather for the benefit of the organization242 also applies to the exemptions from taxation and duty. These privileges are granted to officials for the same reasons that privileges and immunities are granted to the UN. They preserve the independence of officials and of the organization; prevent the diversion of the collective financial resources of the organization to individual member states; and facilitate the work of the organization by making it easier for staff members to take up postings abroad. However, the exemption from taxation of UN salary is granted for another reason: to prevent the possibility of inequalities existing between (p. 599) officials of the organization. Such inequalities would arise were the salaries of officials to be subjected to the different taxation regimes of members. 16.71  The ability of the UN to prevent inequality among its officials has been hampered by the refusal of the US to exempt its nationals who are UN officials from national taxation.243 In an attempt to preserve equality, the UN General Assembly has established a staff assessment plan244 and a Tax Equalization Fund.245 Staff assessment is a direct assessment on (or deduction from) UN staff members’ gross pay comparable to national income taxes. This deduction is credited to the Tax Equalization Fund. In cases where a member does not impose income tax on its nationals who work for the UN, that member’s assessed From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

contribution to the UN budget is offset from the Tax Equalization Fund. However, when staff members are required to pay income taxes from their UN salaries, they are reimbursed from the Tax Equalization Fund.246 16.72  Officials of the UN are not only exempt from taxation of their salaries and emoluments paid by the UN; in addition, the rate of tax on their non-exempt income (ie income from other sources) may not be calculated by taking into account their UN income.247 Disputes frequently arise between the UN and members regarding the application of the exemption from taxation to locally recruited staff.248 To apply (p. 600) national taxation to such staff is to misconstrue the categories of staff members that benefit from the immunity provided to officials under the General Convention. Only locally recruited staff who are also paid on hourly rates are not accorded the benefits of the Convention.249 Therefore, the salaries of locally recruited staff who are not paid hourly rates should be exempt from taxation.250 16.73  Questions have also arisen as to whether mandatory social security (or similar) payments required by national authorities amount to a tax. The UN has consistently, and correctly, taken the view that such payments fall within the exemption from taxation provided for in the General Convention,251 as these are compulsory contributions to state revenue, even if they are set aside for specific purposes. The reasons for providing for exemption from taxation apply to such payments.

5.5  Other privileges and immunities 16.74  Officials of the UN are also immune from national service obligations, and together with their spouses and dependent relatives are immune from immigration restrictions and alien registration.252 They are also to be accorded the same privileges in respect of exchange facilities as are accorded to officials of comparative ranks in diplomatic missions. Further, UN officials and their families are entitled to the repatriation facilities in the event of a crisis.

5.6  Temporal scope of functional privileges and immunities accorded to officials 16.75  Section 12 of the UN General Convention specifically provides that the immunity from legal process accorded to representatives of states with regard to their official conduct shall continue even after the person is no longer a representative. This accords with the general principle observed with regard to immunity ratione materiae for state officials, which is that they continue to be immune, even after they have left (p. 601) office, for official acts committed whilst in office.253 No provision equivalent to section 12 was included with regard to officials. However, the functional immunity accorded to officials will only be effective if they are shielded from legal processes instituted even after they leave office, where those processes relate to official conduct. Otherwise, national authorities would have influence over UN officials by being able to threaten prosecution or other proceedings after the individual is no longer a staff member. Thus, the functional independence of UN officials (which is stipulated for in Article 105) requires that the immunity from legal process extend beyond the period of employment of the official. 16.76  The question has also arisen as whether the exemption from taxation applies to pensions paid to retired UN officials. Clearly these pensions are ‘emoluments paid by the United Nations’. However, these emoluments are not paid to ‘officials’, as is required by section 18 of the UN General Convention. It is therefore difficult to see the basis on which the exemption can be claimed for retired personnel.254

5.7  The different position of persons connected with judicial organs

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16.77  Separate provision is made with regard to the privileges and immunities of persons connected with the judicial organs of the UN. Although Article 105 of the UN Charter contains a general provision regarding the privileges and immunities of UN officials and representatives of member states, the Statute of the ICJ, which is annexed to the Charter, makes separate provision regarding the privileges and immunities of the judges of the Court, as well as agents, counsel, and advocates of parties who appear before it.255 Furthermore, when the General Assembly, in 1946, took up the task of elaborating on the privileges and immunities of the UN, as required by Article 105 of the Charter, it considered the privileges and immunities of the ICJ separately from those of the rest of the UN.256 (p. 602) 16.78  Likewise, the Statutes creating the ICTY, ICTR, and the UN Mechanism for International Criminal Tribunals (MICT)257 make provision with regard to the privileges and immunities of persons connected with those tribunals, as does the Statute of the Special Tribunal for Lebanon (STL).258

(p. 603) 6.  Privileges and immunities of experts on mission 6.1  The privileges and immunities accorded to experts 16.79  Despite not being mentioned in Article 105 of the UN Charter, the General Convention provides that experts performing missions for the UN are to be accorded such privileges and immunities necessary for the independent exercise of their mission.259 The purpose of this provision is to enable the organization to entrust missions to persons who do not have the status of officials. The privileges and immunities accorded to such experts include the immunity from personal arrest and detention; from seizure of their baggage; and from legal process with respect to words spoken or written and acts done in the course of performance of their mission.260 The papers and documents of experts are inviolable, and for the purpose of communicating with the UN, they are given the right to use codes and to receive papers or correspondence by courier or sealed bag.261 In addition, they are to have the same facilities in respect of currency exchange or exchange restrictions as are accorded by the host state to representatives of foreign governments on temporary official mission.262 Lastly, they are accorded the same immunities and facilities in respect of their personal baggage as are accorded to diplomatic envoys.263 16.80  These immunities are slightly different from those accorded to UN officials. In the first place, there is an express immunity from arrest and detention, something which is only to be implied from the officials’ immunity from legal process. Also, it is expressly provided for that the functional immunity of experts from legal process continues even beyond the time when they act as such.264 Also experts on mission are not granted the exemptions from tax that officials are granted. This is justified on the ground that such experts do not receive a salary from the UN but only special allowances and honoraria. The UN laissez-passer cannot be granted to experts on mission, but a similar, facilitated procedure can be extended to experts travelling on the business of the UN in accordance with section 26 of the 1946 Convention.265

(p. 604) 6.2  Definition of experts 16.81  The term ‘expert on mission’ refers to a person who has been assigned a particular task by the organization but who is not an official or a representative of a member.266 The ICJ has made clear that the term ‘mission’ is to be interpreted broadly, and that ‘Section 22 is applicable to every expert on mission, whether or not he travels.’267 The term ‘expert’ therefore includes a range of persons who serve in their individual capacities on UN organs such as the International Law Commission and the International Civil Service Commission. It also includes special rapporteurs of the human rights organs of the UN.268 The term further covers some members of peacekeeping forces established by the UN.269 Experts

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may or may not be paid, may or may not (p. 605) have a contract, and may be given as a task work requiring a lengthy or short period of time. 16.82  Experts on mission are granted privileges and immunities during the period of their missions, including the time spent on journeys in connection with their missions.270 This means that experts are entitled to privileges and immunities during the whole period of such mission, that is, from the time they are appointed until the time they complete their assignment.271 The privileges and immunities are available whether they travel or not, and they are available against a state of nationality or a state of residence.272

7.  Abuse, waiver, and settlement of disputes regarding privileges and immunities 7.1  Abuse and waiver 16.83  The conferral of privileges and immunities on UN personnel does not necessarily exempt those persons from the obligation to follow the relevant law of the state in which they find themselves. Unlike the position with diplomatic envoys, the concept of persona non grata does not apply to the officials and experts of the UN.273 This (p. 606) excludes a potential remedy for dealing with abuse of privileges and immunities. However, the UN is under an obligation to cooperate at all times with the appropriate authorities of members to facilitate the proper administration of justice, secure the observance of policy regulations, and to prevent occurrence of any abuse by its officials in connection with the privileges, immunities, and facilities conferred by the General Convention.274 This obligation to prevent abuse means that serious consideration must always be given in each case to whether privileges and immunities ought to be claimed; and the obligation of cooperation to facilitate the proper administration of justice and observance of police regulations means that UN officials ought to do what is reasonable to ensure that domestic law is not needlessly violated. In all cases, it is important to recall the reasons why privileges and immunities are conferred. In the case of privileges and immunities conferred on officials and experts on mission, it is emphasized that they are conferred not for their personal benefit but for the benefit of the organization.275 The Secretary-General has not only the right but also the duty to waive the immunity of any official or expert where the immunity would impede the course of justice and can be waived without prejudice to the interests of the UN.276 In circumstances where a dispute involves an official of the UN who, by reason of his official position, enjoys immunity, the UN is obliged to make provision for appropriate modes of settling the dispute.277

7.2  Settlement of disputes 16.84  Disputes arising as to the interpretation or application of the UN General Convention shall be referred to the ICJ, in the absence of an agreed dispute settlement mechanism. (p. 607) Where the dispute arises between the UN and a member, a request shall be made for an Advisory Opinion, which shall be accepted as binding by the parties.278

8.  Privileges and immunities during peacekeeping operations 8.1  Sources of privileges and immunities 16.85  The UN has carried out numerous peacekeeping or peace support operations since 1945. Since peacekeeping operations are generally considered subsidiary organs of the UN, they are conferred privileges and immunities in accordance with Article 105 of the Charter and the 1946 Convention.279 However, the Charter does not explicitly refer to the establishment of peacekeeping operations. Their legal framework is usually determined on the basis of ad hoc agreements between the parties involved.280 If the UN succeeds in negotiating a SOFA, this forms the central piece of such agreements.281 The privileges and

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immunities of the mission, UN officials, experts on mission, and member state contingents are set out therein. The UN’s 1990 Model SOFA reflects well-established UN practice.282 16.86  The question whether other sources of privileges and immunities exist is important with regard to members of national military contingents. Their privileges and immunities are regulated in SOFAs but do not find a clear basis in the UN Charter and the 1946 Convention, which only refer to the immunity of the organization and its officials. If the UN does not succeed in negotiating a SOFA, their legal status is uncertain. Some authors have affirmed that the UN Model SOFA reflects customary international law.283 However, it is questionable whether members of national contingents enjoy (p. 608) the privileges and immunities set out in the Model SOFA qua customary international law if consent of the host state to the peacekeeping mission is lacking.284 16.87  Peacekeeping missions have, in recent years, often been established on the basis of a Chapter VII authorization of the UN Security Council, rather than solely on the basis of the host state’s consent.285 When authorizing such operations, the Security Council has repeatedly determined that the UN Model SOFA shall apply until a SOFA has been agreed.286 In accordance with Article 25 of the Charter, member states must carry out decisions of the UN Security Council. In the case of the UN Mission in Kosovo (UNMIK), the Special Representative of the UN Secretary-General for Kosovo later adopted UNMIK Resolution 2000/47, which set out the privileges and immunities of the International Security Force in Kosovo (KFOR), and UNMIK and its personnel. 16.88  Lastly, where the host state has consented to the presence of peacekeepers but failed to sign a SOFA with the UN, the legal situation of national peacekeeping contingents resembles the one of friendly visiting forces. The host state generally waives its jurisdiction over the peacekeeping force.287

8.2  The privileges and immunities accorded to the peacekeeping mission 16.89  The UN considers peacekeeping operations established under its mandate and control as subsidiary organs.288 Peacekeeping operations therefore enjoy the privileges and immunities granted to the UN in accordance with Article 105 of the UN Charter and the 1946 Convention.289 This immunity is expressed in absolute terms.290 The immunity from jurisdiction covering the assets, property, and funds of the UN peacekeeping mission is extended to the assets, property, and funds of participating states.291 United Nations peacekeeping operations are bound to respect local laws and regulations.292 (p. 609) 16.90  The Model SOFA spells out a number of specific privileges to be granted to peacekeeping missions. The peacekeeping operation may import equipment, provisions, supplies, and other goods for its exclusive and official use free of duty or other restrictions.293 It may also establish and operate commissaries for the benefit of members of the operation.294 16.91  The host state shall further provide such areas for headquarters camps or other premises as may be necessary for the conduct of the operational and administrative activities, without cost.295 The premises shall be inviolable. As far as possible, water, electricity, and other facilities shall also be made available free of charge.296 In practice, this provision has rarely been strictly applied, and the UN has often had to negotiate agreements for the use of property with private parties. It has sometimes temporarily occupied privately owned premises.297 The UN generally accepts that it is liable to pay compensation in such cases.298

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16.92  In accordance with Article 29(a) of the 1946 Convention, the UN shall make provision for appropriate modes of settlement of disputes arising from breaches of contract or other private law disputes involving the UN as a party.299

8.3  The privileges and immunities accorded to members of the peacekeeping mission 8.3.1  Personal immunity 16.93  The Special Representative, the Commander of the military component of the UN operation, the head of the UN civilian police, and ‘such high-ranking members of (p. 610) the Special Representative/Commander’s staff as may be agreed upon with the Government’ enjoy the privileges and immunities accorded to diplomatic envoys.300 This means that they enjoy absolute immunity from criminal jurisdiction and a broad immunity from civil jurisdiction in the host state.301 As high-ranking UN officials, their privileges and immunities can be derived simultaneously from the SOFA, Article 105(2) of the Charter, and the General Convention. The Secretary-General can waive immunity where immunity would impede the course of justice and waiver is without prejudice to the interests of the UN.302

8.3.2  Functional immunity 16.94  Members of the Secretariat assigned to the civilian component of a peacekeeping mission remain UN officials entitled to privileges and immunities in accordance with the General Convention. These privileges and immunities of officials under the Convention may also be extended to UN Volunteers by the relevant SOFA.303 Military observers, UN civilian police, and civilian personnel not benefitting from personal immunity are considered ‘experts on mission’ for the purposes of privileges and immunities.304 Military observers are officers nominated by their governments following a request by the Secretary-General, and serve the UN in a personal capacity. They are entitled neither to carry weapons, nor to receive instructions from their governments.305 16.95  The General Convention provides that experts performing missions for the UN are to be accorded such privileges and immunities as are necessary for the independent exercise of their mission.306 In particular, there is an express immunity from arrest, detention, and seizure of baggage.307 Pursuant to sections 20 and 23 of the 1946 Convention, the Secretary-General has the authority and duty to waive immunity where ‘immunity would impede the course of justice and it can be waived without (p. 611) prejudice to the interests of the United Nations’.308 Article 46 of the Model SOFA furthermore provides that all members of the UN peacekeeping operation ‘shall be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity’. The immunity in relation to these acts continues after they cease to members of the operation. 16.96  As regards criminal offences committed by UN officials or ‘experts on mission’ during peacekeeping operations, the Commander shall carry out further investigations if necessary, and agree with the host government whether or not criminal proceedings should be commenced.309 In recent years, reports of criminal offences committed by members of peacekeeping forces have become a concern.310 According to the UN, ‘officials and experts on mission should be held accountable whenever they commit criminal acts not only because of the prejudice or harm caused to the victims but also because they undermine the work and image of the United Nations’.311 However, (p. 612) the UN itself cannot usually carry out criminal investigations, nor exercise criminal jurisdiction over individuals.312 The host state would normally have jurisdiction over criminal offences either if they were not committed in an official capacity, or if the UN has waived immunity. However, depending on the judicial system in place in the host state, waiving immunity may not always be possible.313 In practice, the UN has referred several cases of credible allegations of

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misconduct to the authorities of the sending state of the UN officials or experts on mission concerned.314 16.97  Locally recruited members of the contingents are exempted from taxation on salaries and from national service.315 As members of the peacekeeping operation, they also enjoy immunity in relation to all words written or spoken and all acts performed in an official capacity, pursuant to Article 46 of the Model SOFA. 16.98  Peacekeeping operations often rely on the services of individual contractors and consultants. Consultants are hired as specialists, whereas individual contractors may carry out tasks similar to those of staff members but are hired under temporary contracts.316 In principle, they are neither UN officials nor experts on mission, and are therefore not covered by the immunities set out in the 1946 Convention.317 They may, however, be attributed the status of experts on mission if necessary for the assignment, and this is usually included in a specific provision in their contracts.318 Some SOFAs provide for privileges of individual contractors and consultants, such as exemption from taxes.319

8.3.3  Force members of national contingents 16.99  Members of national military contingents remain formally in the service of their sending state. They are not directly employed by the UN and receive their training and salaries from the sending state.320 Article 105(2) of the Charter states that (p. 613) ‘Representatives of the Members of the United Nations and officials of the Organization shall…enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organization.’ Because peacekeeping operations were not envisaged at the time the Charter was drafted, it is clear that there could have been no intention to cover members of national contingents by this provision. However, the broad wording of Article 105(2) and the reference to the functional necessities of the organization suggest that members of UN peacekeeping contingents should enjoy such privileges and immunities as are necessary for the fulfilment of their functions.321 16.100  A second question is whether members of UN peacekeeping contingents can be considered either UN officials or ‘experts on mission’ in accordance with the 1946 Convention.322 The Model SOFA draws a clear distinction between experts on mission and UN officials, on the one hand, and members of national contingents, on the other hand.323 In practice, members of national peacekeeping contingents have sometimes been considered experts on mission,324 but this practice is not generally established. 16.101  Under SOFAs, the privileges and immunities granted to members of national contingents differ from the ones granted to experts on mission and normal UN officials. In addition to the general immunity relating to official acts, members of national military contingents ‘shall be subject to the exclusive jurisdiction of their respective participating States in respect of any criminal offenses which may be committed by them in [the host country/territory]’.325 This absolute immunity from jurisdiction in criminal proceedings reflects an important concern of contributing states. Members shall, however, be prosecuted for crimes by their respective states, and the Secretary-General will obtain assurances from governments that they are prepared to (p. 614) exercise jurisdiction over crimes committed during peacekeeping operations.326 Unlike UN staff and experts on mission, the Secretary-General cannot waive the immunity of individual members of national peacekeeping contingents.327 As an administrative measure, the Secretary-General may order the repatriation of any military member of a contingent who has been found culpable of serious misconduct in a mission investigation.328 16.102  A national court can uphold jurisdiction against a member of a national military contingent in civil proceedings.329 However, the Special Representative/Commander must be notified and can certify that the proceedings relate to official duties. Proceedings must

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then be discontinued. Property that is needed for the fulfilment of official duties cannot be seized, and the personal freedom of a member must not be restricted in civil proceedings.

8.4  Human rights and immunities in international territorial administrations 16.103  The UN peacekeeping practice is constantly evolving. Throughout the 1990s, there was a growing concern that by primarily targeting the security situation, ‘the root (p. 615) causes of conflict have often been left unaddressed’.330 United Nations peacekeeping operations have therefore increasingly assumed civilian tasks, exercising administrative and legislative powers in post-conflict societies. Examples include the United Nations Transitional Authority in Cambodia, the United Nations Operation in Somalia (UNOSOM II), the United Nations Transitional Authority in East Timor (UNTAET), and the United Nations Interim Administration in Kosovo (UNMIK).331 16.104  International territorial administrations can be seen as a culmination of this trend, as the administration of a territory is fully assumed by an international organization.332 The exercise of such extensive governmental powers led to the question whether the grant of immunities to the UN is equally justified in this context. In Kosovo, UNMIK derives its privileges and immunities largely from the UN Security Council’s Chapter VII authorization. The Special Representative of the Secretary-General for Kosovo adopted Regulation 2000/47 (2000) on the basis of UN Security Council Resolution 1244. Section 3 of Regulation 2000/47 imposed the regime usually agreed on in SOFAs. First, it provided that UNMIK, its property, funds, and assets shall be immune from any legal process. Second, it provided that the Special Representative of the Secretary-General, the Principal Deputy, and the four Deputy Special Representatives of the Secretary-General, the Police Commissioner, and such other high-ranking officials as may be decided are immune from local jurisdiction in respect of any civil or criminal act performed or committed by them in the territory of Kosovo.333 Lastly, it was provided that UNMIK personnel, including locally recruited personnel, would be immune from legal process in respect of words spoken and all acts performed by them in their official capacity. UNMIK personnel enjoyed immunity from any form of arrest or detention, and it was required that they be turned over to UNMIK authorities if erroneously detained. 16.105  This regime has been severely criticized, since UNMIK exercised elements of governmental authority in Kosovo.334 In his Special Report on the compatibility with recognized international standards of UNMIK Regulation 2000/47, the Ombudsperson in Kosovo concluded that the regime was incompatible with international human rights guarantees. In particular, the Ombudsperson was of the view that ‘the underlying purpose of a grant of immunity does not apply as there is no need for a government (p. 616) to be protected against itself’.335 However, to protect the mission from interference by host state administrative and judicial organs can be seen as functionally necessary for the performance of UNMIK’s functions.336 The obligation to provide alternative mechanisms of dispute settlement is therefore of particular importance in this context. In Kosovo, the Ombudsperson, established by UNMIK Regulation 2000/38, and the Human Rights Advisory Panel, established by UNMIK Regulation 2006/12, were mandated to hear cases involving alleged human rights violations by UNMIK. However, these institutions were only empowered to adopt recommendatory decisions.337 It has therefore rightly been questioned whether they could offer an adequate remedy in the particular context of international territorial administrations.

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9.  Immunities of international organizations and the jurisdiction of international criminal tribunals 16.106  In most cases where the UN asserts an immunity, it will be seeking exemption from the executive or adjudicatory jurisdiction of a state. However, questions may also arise as to whether the UN, its officials, or experts on mission (or indeed representatives of a state to the UN) are entitled to immunity from the jurisdiction of an international criminal tribunal.338 Or the question may arise as to whether a state that has an obligation to cooperate with an international criminal tribunal may do so in such a manner that it affects the immunity that would ordinarily be accorded to the UN or UN-related personnel. Such questions regarding the interaction between the immunity of the UN and the jurisdiction of international criminal tribunals may arise in a number of ways. For example, an international tribunal may seek a document that forms part of the archives of the UN (whether that document is in the possession of the UN or not). Or an international criminal tribunal may seek witness testimony from a UN official or expert, with respect to matters that relate to acts within the official capacity of the individual. Lastly, it is also possible that a UN official or expert is wanted for criminal prosecution by an international tribunal. Such a situation would raise questions of immunity in cases where the alleged crimes are said to have been committed in the course of the exercise of the official capacity of the individual. Or in the case of the limited group of senior officials who possess diplomatic immunity, any attempt to prosecute them, whether for official or private acts, would raise questions of immunity. 16.107  In considering the immunity that the UN or UN officials or experts on mission possess under international law, it is useful to separate out (i) the question of whether (p. 617) the UN or its personnel is or are immune from the jurisdiction of the international tribunal from (ii) the question of the immunity that the UN or UN personnel may have from the jurisdiction of national bodies that are acting at the request of an international criminal tribunal. 16.108  The question whether the UN or UN officials or experts is or are immune from the jurisdiction of the international tribunal is not clearly set out in the Statute of the ICC. However, these issues are addressed in the 2004 Relationship Agreement between the ICC and the UN. Whether or not the ICC may require the arrest and surrender of an official or expert of an international organization in circumstances where that person is immune from arrest under international law is not addressed in Article 98(1) of the ICC Statute, which requires to Court to refrain from making a request for surrender or assistance ‘which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State’.339 The text of that provision makes no mention of immunities accruing to international organizations but is limited to immunities of ‘a third State’.340 The declaration in Article 27(1) of the ICC Statute that the Statute applies equally, irrespective of official capacity, may be taken as including officials of international organizations.341 However, that provision does not itself bind the organization as a non-party to the Rome Statute, and may not be regarded as a waiver of the immunity of the official.342 The position remains the same even if all members of the organization are parties to the ICC Statute. This is because the organization is a separate legal person, and the immunity of its officials and experts is a right belonging to the organization and not to the member states.343 Only the UN can waive the immunities of its officials and experts,344 and nothing in the Statute can be regarded as having this effect. The 2004 Relationship Agreement between the UN and the ICC provides that if the Court requests the testimony of a UN official, or wishes to exercise criminal jurisdiction over a person who enjoys (p. 618) immunity under the General Convention, the UN undertakes to cooperate and to waive UN privileges and immunities.345 It is important to point out that the wording of this Agreement makes it clear that it does not in itself

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constitute a waiver of immunity; the Agreement is simply an undertaking to waive the immunity. Therefore, if an actual case were to arise, there would still need to be a further act of waiver by the UN Secretary-General. 16.109  Where an international criminal tribunal such as the ICC requests that a state cooperate with respect to the arrest or surrender of an individual, or with regard to the production of a document, whether that request is binding on the requested state or not will depend on whether that state is party to the Statute establishing the ICC, or is otherwise bound by the instrument establishing the tribunal. Where there has not been (or not yet been) a waiver of immunity, and the requested state is not a party to the ICC Statute but has obligations under the Charter, a treaty, or under customary international law to accord immunity to the UN or UN-related personnel, it is clear that the requested state is obliged to comply with its obligations to the UN, since the requested state is not even facing a conflict of obligations. However, where the requested state is under an obligation, for example under the ICC Statute, to comply with the request of the international tribunal, but is also under an obligation to accord immunity to the UN (because there has not been a waiver of immunity) then, unless one or the other instrument provides an exemption, the state will be facing a conflict of obligations.346 For example, a state party to the ICC Statute may face a situation where the ICC Statute requires the state347 to arrest a person entitled to immunity under the UN General Convention. In such a case, the fact that the relevant treaties are not treaties between the same parties means that one treaty does not ordinarily prevail over another.348 However, the fact that immunities of the UN and UN officials are derived from the UN Charter will mean that the obligation to accord immunity prevails over the obligation arising under the ICC Statute.349 (p. 619) 16.110  In conclusion, while Article 98 of the ICC Statute does not preclude the ICC from requesting the surrender of UN officials and experts, an ICC party that is party to a treaty conferring such immunity would be acting in violation of that treaty if it were to arrest and surrender the official or expert without a waiver from the UN. In order to prevent the possibility of inconsistent obligations arising, it will be prudent for the ICC not to request the surrender of officials or experts of international organizations until the organization has waived the immunity of those persons.350(p. 620)

Footnotes: 1

  UN Charter, Art 105(2).

2

  Statute of the International Court of Justice (ICJ), Art 19. For further discussion of privileges and immunities of the ICJ, see ch 29, ‘The International Court of Justice’, section 4.6, ‘Special arrangements for the Court regarding its protocol, standing, privileges, and immunities’. 3

  Art 42(3), Statute of the ICJ.

4

  The constitutive instruments of most specialized agencies of the UN contain similarly general provisions concerning the privileges and immunities to which those agencies and persons connected with them are entitled. In contrast, the constitutive instruments of the international financial institutions in relationships with the UN contain fairly detailed provisions concerning privileges and immunities. See, Art VII, Articles of Agreement of the International Bank for Reconstruction and Development, 1945, 2 UNTS 134 and Art IX, Articles of Agreement of the International Monetary Fund, 1945, 2 UNTS 40. 5

  See the Convention on the Privileges and Immunities of the United Nations (1946), 1 UNTS 15, approved by GA Res 1/22A (1946). See generally, Reinisch (ed), The Conventions

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on the Privileges and Immunities of the United Nations and its Specialized Agencies: A Commentary (2016). 6

  The General Assembly has used its powers to make recommendations under Art 105(3) to specify in greater detail the privileges and immunities to which the judges, officials, and others who work in connection with the ICJ are entitled (GA Res 90(I) (1946)). Despite its recommendatory language, privileges and immunities stated in that Resolution are binding on all members of the UN. This is because Art 105(3) provides that the details of Art 105(1) and (2) will be determined by General Assembly recommendations. Therefore, the precise content of the obligation in Art 105(1) and (2) is to be found in the recommendations made by the General Assembly. 7

  This view has been asserted by the UN on a number of occasions. See Memorandum of Law: United Nations Immunity from Real Property Tax, prepared by the UN Office of Legal Affairs, 1953, quoted in The Practice of the United Nations, the Specialized Agencies and the IAEA concerning their Status, Privileges and Immunities: Study Prepared by the Secretariat, UN Doc A/CN/L.118 and Add 1 and 2, 1967, YBILC, 1967, II, p 154, at 246, para 167, §4 (hereinafter ‘UN Privileges and Immunities Study (1967)’). See also the Statement made by the Legal Counsel at the 1016th meeting of the Sixth Committee of the General Assembly on 6 December 1967, [1967] UN Juridical YB 311, 313, para 9. This position is confirmed by the drafting history of the Charter and the practice of the UN. The Report of the Committee on Legal Problems at the San Francisco Conference that drafted the Charter stated that Art 105 ‘sets forth a rule obligatory for all members as soon as the Charter becomes operative’ (United Nations Conference on International Organization, 12 June 1945, IV/2/42(2)), XIII, United Nations Conference on International Organization (UNCIO), 703–5. Likewise, the Preparatory Commission on the United Nations stated that Art 105 is ‘applicable even before the General Assembly has made the recommendations referred to in paragraph (3) of the Article or the conventions therein mentioned have been concluded’ (Report by the Executive Committee to the Preparatory Commission of the United Nations (UN Doc PC/EX/11/Rev.1, 12 November 1945), chap V, sect 5, para 2). 8

  For example, neither the Convention on the Privileges and Immunities of the United Nations (1946), 1 UNTS 15, nor the Headquarters Agreement between the United Nations and United States (1947), 2 UNTS 11, provides expressly for the inviolability of premises of permanent missions to the UN or of the private residences of representatives of UN members. However, Art 105 has been cited by the UN as imposing such an obligation. See UN Privileges and Immunities Study (1967), n 7, 187, para 156. Art 105 has also been cited by the UN Legal Counsel as imposing an obligation on the host state not to interfere with legitimate activities of permanent missions to the UN by preventing those missions or their personnel from using funds on deposit in the host state. This was in connection with the possibility that the US might extend measures freezing the assets of another state within the US to a bank account maintained in order to conduct the business of the permanent mission of the state concerned. See [1963] UN Juridical YB 168. As discussed in n 216, UN Volunteers are not considered to be officials within the meaning of the UN General Convention of 1946. However, they and other ‘agents, who are not officials or experts on mission, may still be covered by paragraph 1, Article 105 of the Charter of the United Nations’. See [2009] UN Juridical YB 391, 393, para 9. 9

  See Stichting Mothers of Srebrenica v the Netherlands and the United Nations (Dutch Supreme Court, 13 April 2012) LJN BW1999, para 4.3.6: ‘That immunity is absolute. Its maintenance moreover is among the obligations of the Members of the United Nations, which… according to Article 103 of the United Nations Charter take precedence over obligations pursuant to other international agreements.’ The obligation of host states to confer immunity on representatives of member states attending meetings in the host state From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

will also prevail over the obligation of that state (eg under the Statute of the International Criminal Court (ICC)) to execute arrest warrants issued by international criminal tribunals: see Akande, ‘The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities’ (2009) 7 JICJ 333, at 351–2. For a discussion of whether Denmark would be entitled to execute a warrant issued by the ICC for the arrest of Sudanese President Omar Al Bashir, were he to attend the 2009 UN Climate Change Conference (to which all Heads of States were invited), see Akande, ‘Denmark Invites Sudanese President Bashir to Climate Change Conference’, November 2009, at http://www.ejiltalk.org/denmarkinvites-sudanese-president-bashir-to-climate-change-conference/. See also [2005] UN Juridical YB 443 for a UN Legal Opinion that the participants at a previous UN Climate Change Conference were entitled to UN privileges and immunities. 10

  1946, 1 UNTS 15. In December 2016, there were 162 parties to the Convention, including the major host nations such as the US and Austria. Switzerland acceded to the Convention on 25 September 2012. Thirty states parties lodged reservations to the General Convention, of which 25 remain in force. Many of these reservations relate to the jurisdiction of the ICJ over disputes arising under the Convention (Albania, Algeria, Belarus, China, Indonesia, Nepal, Qatar, Romania, Russia, Saudi Arabia, South Africa, Ukraine, and Vietnam). Other states have made reservations with respect to privileges and immunities of their own nationals when working for the UN in their territory (Canada, Laos, Mexico, Nepal, Portugal, Republic of Korea, Thailand, Turkey, and the US). Indonesia, Lithuania, Mexico, and Venezuela have made reservations with respect to the acquisition of property by the UN. 11

  GA Res 1/22A (1946). A separate Convention on the Privileges and Immunities of the Specialized Agencies was approved by the General Assembly in 1947, GA Res 179 (II) (1947). This Convention follows the general format of the UN Privileges and Immunities Convention. See generally, Reinisch (ed), n 5. The Specialized Agencies Convention provides that modifications to its standard provisions may be made with respect to each specialized agency (Art X). These modifications must be approved by the specialized agency in question and are set out in annexes to the Convention. Section 43 provides that each state party shall in its instrument of ratification or in a subsequent written notification indicate the specialized agency or agencies in respect of which it undertakes to apply the Convention. For domestic purposes, such indication is usually made in subsidiary legislation or in an executive order. See, eg, Specialized Agencies of the United Nations (Immunities and Privileges) Order 1974 (UK), SI 2002/1827; Specialized Agencies (Privileges and Immunities) Regulations 1986 (Australia); by Order of the Governor in Council pursuant to s 5 of the Foreign Missions and International Organizations Act 1991 (Canada); by Executive Order of the President of the United States pursuant to s 1 of the International Organization Immunities Act 1945 (US). 12

  See GA Res 2328 (XXII) (1967), which ‘[recalls] further that the 1946 Convention on the Privileges and Immunities of the United Nations confirms and specifies the provisions of Article 105 of the Charter’. The Resolution was adopted by 101 votes, with no negative votes and only one abstention. See also Ziegler, ‘Article 105’ in The Charter of the Nations: A Commentary (3rd edn, eds Simma et al, 2012), 2161, MN7. See also Statement made by the Legal Counsel at the 1016th meeting of the Sixth Committee of the General Assembly on 6 December 1967 ((1967) UN Juridical YB 311, 313, para 10): ‘[I]t may be said that the privileges and immunities as defined in the Convention are the minimum privileges and immunities deemed necessary by the Assembly to be accorded by all Member States in implementation of Article 105 of the Charter.’ For a practical application of this reasoning, see Stichting Mothers of Srebrenica v the Netherlands and the United Nations (Appeal Court of The

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Hague, 30 March 2010) LJN BL8979, para 4.4; and Stichting Mothers of Srebrenica v the United Nations (Dutch Supreme Court, 13 April 2012) LJN BW1999, para 4.2. 13

  Nor is the Convention open to accession by the UN, since s 31 provides that the ‘convention is submitted to every Member of the United Nations for accession’. 14

  See Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) ICJ Rep 1949, p 174, 179: ‘The “Convention on the Privileges and Immunities of the United Nations” of 1946 creates rights and duties between each of the signatories and the Organization.’ See also Statement made by the Legal Counsel at the 1016th meeting of the Sixth Committee of the General Assembly on 6 December 1967 ([1967] UN Juridical YB 311, 312): ‘the fact that the obligations run from the Members to the United Nations is not a mere formality…. Since the Organization itself has an interest in protecting the rights of representatives, a difference with respect to such rights may arise between the United Nations and a Member and consequently be the subject of a request for an advisory opinion. It is thus clear that the United Nations may be one of the “parties”, as that term is used in section 30.’ See generally, Reinisch, International Organizations before National Courts (2000), 144. The Convention itself contains sufficient indication that it is intended to create a bilateral engagement between the parties to it and the UN. Section 35 provides that ‘This convention shall continue in force between the United Nations and every Member which has deposited an instrument of accession for so long as that member remains a Member of the United Nations, or until a revised general convention has been approved by the General Assembly and that Member has become a party to this revised convention.’ Also, s 30 provides that ‘If a difference arises between the United Nations on the one hand and a Member on the other hand, a request shall be made for an advisory opinion…. The opinion given by the Court shall be accepted as decisive by the parties.’ For these reasons, it has been suggested that the UN is to be considered a party to the Convention: see Szasz, ‘International Organizations, Privileges and Immunities’ in Encyclopedia of Public International Law (vol II, 2nd edn, ed Bernhardt, 1995), 1325 at 1327; Bekker, The Legal Position of International Organizations: A Functional Necessity Analysis of their Legal Status and Immunities (1994), 130; Kunz, ‘Privileges and Immunities of International Organizations’ (1947) 41 AJIL 828. Alternatively, even if the UN is not considered a party in the formal sense, it is nevertheless to be regarded as a third party deriving rights (and indeed obligations, eg under s 30) from the treaty as provided for in the rule contained in Arts 35 and 36 of the Vienna Convention on the Law of Treaties (VCLT) 1969, 1155 UNTS 331. See Written Statement submitted on behalf of the Secretary-General of the United Nations to the International Court of Justice, 26, para 53, ICJ Pleadings, Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, 185 (1992). Formally, the situation discussed here actually falls outside the rules set out in both the VCLT 1969 and the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. Quite apart from the fact that the 1969 Convention only applies to treaties concluded after it came into force, the rule stated therein with regard to third parties is stated only with regard to third states. While the rule relating to third parties in 1986 Convention applies also to third organizations, that treaty, quite apart from the fact that it applies only to treaties concluded after it came into force, does not regulate treaties that are exclusively between states (ie treaties in which at least one party is not an international organization). The International Law Commission (ILC) Special Rapporteur Reuter discussed the question whether international organizations are third parties to their constituent treaties in his Second Report on the Question of Treaties Concluded between States and International Organizations or between Two or More International Organizations, YBILC, 1973, II, p 75, at 90, para 92. In his view, ‘no organization can be said to be in the position of a third party in relation to its constituent charter’, because ‘the organization derives rights and obligations from its constituent From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

charter, but to say that these rights and obligations are attributed to it because it has accepted them seems hardly satisfactory’. The view that international organizations derive rights and obligations from their constituent instruments is uncontroversial. In Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) ICJ Rep 1980, p 73, 89–90, para 37, the Court held that ‘[i]nternational organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties’. Nonetheless, there is no reason to think that the rule regarding third parties does not apply to a treaty between states intending to confer rights on an international organization. 15

  Adopted in 1975, by the United Nations Conference on the Representation of States in their Relations with International Organizations, UN Doc A/Conf.67/18, 5 February–14 March 1975. This Convention requires ratification or accession by 35 states to enter into force (Art 89). As of January 2017, 34 states have ratified or acceded to it. The 34th state that gave consent to be bound acceded in 2008, and between 2000 and 2016 only five states ratified, acceded to, or submitted declarations of succession to the Convention. The Convention was adopted following the work of the ILC on the topic (YBILC, 1971, II, pt 1). The very slow pace of ratifications of the Convention is due to the fact that many states, particularly host states, consider that it adopts too broad a regime of privileges and immunities. The work of the ILC on the Representation of States in their Relations with International Organizations was intended to be part one of the ILC’s consideration of the topic: ‘The Law of International Organizations’. In 1976, the ILC began consideration of the second part of that topic, namely, ‘The status, privileges and immunities of international organizations and their officials, experts and other persons engaged in their activities who are not representatives of States’. As a result of the lack of support for the 1975 Vienna Convention, the ILC decided in 1992 not to pursue the topic further (unless the General Assembly decided otherwise): see Report of the ILC on the work of its forty-fourth session, UN Doc A/47/10, 4 May–24 July 1992, 132. The decision of the ILC was endorsed by the General Assembly in UN Res 47/33 (1992). On the Convention and the work of the ILC on the topic, see, Bekker, n 14, pt 1; El-Erian, ‘Vienna Convention on the Representation of States in their Relations to International Organizations of a Universal Character’ in Bernhardt (ed), n 14, vol IV, 1317. 16

  Art 1(1)(1).

17

  See Arts 2 and 90.

18

  Pt II of the Vienna Convention on the Representation of States in their Relations to International Organizations of a Universal Character 1975 (hereinafter, ‘Vienna Convention on Representation’). 19

  ibid.

20

  Pt IV of the Vienna Convention on Representation. See El-Erian, n 15, 1318.

21

  It provides the minimum privileges and immunities the organization requires, wherever it might be or wherever representatives of members or officials of the organization might find themselves. Separate agreements providing for additional privileges and immunities shall be ‘complementary’, and so far as possible the provisions of both ‘shall be applicable and neither shall narrow the effect of the other’. Additional privileges and immunities have been deemed necessary for various missions. Statement made by the Legal Counsel at the 1016th meeting of the Sixth Committee of the General Assembly on 6 December 1967, [1967] UN Juridical YB 311, 313, para 10.

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22

  See generally, Muller, International Organizations and their Host States: Aspects of their Legal Relationship (1995). 23

  Signed at Lake Success on 26 June 1947, 2 UNTS 11 (hereafter ‘US/UN Headquarters Agreement’). 24

  See Annex 1 of the US/UN Headquarters Agreement, n 24. Because the office space in the Headquarters District as originally defined has become inadequate, the UN has acquired office space outside the area originally defined as the Headquarters District in Annex 1. These additional premises have been brought within the definition of the Headquarters District by a number of Supplemental Agreements as provided for in Art 1 of the US/UN Headquarters Agreement. See 1st Supplemental Agreement, February 1966, 554 UNTS 308, 2 UNTS 11 (as amended in December 1966, 581 UNTS 362); 2nd Supplemental Agreement, 1969, 687 UNTS 408; 3rd Supplemental Agreement, 10 December 1980, [1980] UN Juridical YB 18; 4th Supplemental Agreement, 18 June 2009. 25

  US/UN Headquarters Agreement, n 24, Arts I–VII.

26

  See US/UN Headquarters Agreement, n 24, Art IV.

27

  See US/UN Headquarters Agreement, n 24, Art V, s 15.

28

  Agreement on Privileges and Immunities of the United Nations Concluded between the Secretary-General of the United Nations and the Swiss Federal Council, signed at Bern, 11 June/1 July 1946, 1 UNTS 164 (hereafter ‘UN/Switzerland Agreement’). See also Exchange of Letters Constituting an Additional Agreement to the Interim Agreement of 11 June and 1 July 1963, [1963] UN Juridical YB 43, stipulating that the Secretary-General and Assistant Secretaries-General, and the officials assimilated to them, be accorded in respect of themselves, their spouses, and their minor children, privileges and immunities, exemptions and facilities accorded to diplomatic envoys in accordance with international law and international usage. In addition, it stipulates that officials in categories specified by the Secretary-General, and agreed by the Swiss Federal Council, be accorded the privileges and immunities, exemptions and facilities accorded to diplomatic agents who are not heads of a mission. In practice, diplomatic status is accorded to members of the senior management and high-ranking officials of intergovernmental organizations: see https:// www.eda.admin.ch/missions/mission-onu-geneve/en/home.html. The Convention on the Privileges and Immunities of the United Nations, 1 UNTS 15, became binding for Switzerland on 25 September 2012. The UN/Switzerland Agreement remains in force. 29

  See Legislative Texts and Treaty Provisions concerning the Legal Status, Privileges and Immunities of International Organizations, 1959 (UN Doc ST/Leg/Ser. B/10), 193; see also Letter from the President of the International Court of Justice to the Minister for Foreign Affairs of the Netherlands, 26 June 1946; Letter from the Minister for Foreign Affairs of the Netherlands to the President of the International Court of Justice, 26 June 1946; Letter from the Minister for Foreign Affairs of the Netherlands to the President of the International Court of Justice, 26 February 1971. The general principles agreed on provide that members of the Court, the Registrar, and the Deputy-Registrar when acting for the Registrar be accorded the same treatment as heads of diplomatic missions; the DeputyRegistrar be accorded the same treatment as counsellors attached to diplomatic missions; and that the higher officials of the Court be accorded the same treatment as secretaries attached to diplomatic missions. Spouses and minor children shall receive the same treatment as the head of the family. 30

  For the texts, see Legislative Texts and Treaty Provisions concerning the Legal Status, Privileges and Immunities of International Organizations, n 29, Second Part; and for

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updates see the Annex to the UN RP, Arts 104 and 105 (eg, see Annex II, UN RP Supp no 8 (1989–94) vol VI, Arts 104 and 105). Examples of these agreements include the host state agreements with Chile (1953), Thailand (1954), and Ethiopia (1958) with regard to the headquarters of the UN Economic Commissions for Latin America and the Caribbean, for Asia and the Pacific, and for Africa, see the same materials indicated earlier for texts and upgrades. See also the Agreement between the United Nations and the Government of Lebanon concerning the Headquarters of the United Nations Economic and Social Commission for Western Asia, 1997 UNTS 321. Typically, agreements with host states confirm the application of the General Convention either to the office in question, or, in the case of meetings, for the purpose and duration of the meeting or conference. In May 1987, the UN Secretariat issued an administrative instruction providing guidelines to officials responsible for preparing agreements with governments hosting UN Conferences (UN Doc ST/AI/342, as amended in 2001, see UN Doc.ST/AI/2001/6). These guidelines contain model provisions for privileges and immunities, and no modification may be made to these standard clauses without the approval of the UN Office of Legal Affairs. For the text of these model provisions, see UN RP Supp no 7 (1985–88) vol VII, Arts 104 and 105, p 188, para 17. However, it is important to note that modifications are often made to these model provisions, particularly with regard to the position of local personnel provided by the host government, and one can only rely on the text of each particular agreement. 31

  Most of these agreements are concluded by the United Nations Children’s Fund (UNICEF) and the United Nations Development Programme (UNDP). The agreements are based on standard basic assistance agreements adopted by these agencies. For the UNICEF Basic Cooperation Agreement, E/ICEF/BCA, see . It deals with privileges and immunities, rights, and facilities of UNICEF, its officials, experts on mission, persons performing services for UNICEF, access facilities, locally recruited personnel assigned to hourly rates, facilities in respect of communications, and the waiver of privileges and immunities. Arts IX and X of UNDP’s Standard Basic Assistance Agreement, [1973] UN Juridical YB 24, deal with privileges and immunities. Again, variation is common and usually relates to the position of locally engaged personnel, particularly nationals of the host state. 32

  The UN has a Model Status of Forces Agreement (SOFA), which was prepared by the Secretary-General and issued in 1990 (UN Doc A/45/594 (1990)). In a number of cases, the SOFAs concluded with host states include provisions that are not included in the Model SOFA. On some occasions, the UN Security Council has decided that the Model SOFA shall govern the status of particular forces pending agreement on a SOFA with the particular state. See, eg, UNSC Res 1706 (2006), para 12(b), regarding the United Nations Mission in Sudan (UNMIS), and UNSC Res 1769 (2007), para 15(b), with regard to the AU/UN Hybrid Operation in Darfur (UNAMID). The former states that the Security Council ‘Requests that the Secretary-General and the Governments of Chad and the Central African Republic conclude status-of-forces agreements as soon as possible, taking into consideration General Assembly resolution 58/82 on the scope of legal protection under the Convention on the Safety of United Nations and Associated Personnel, and decides that pending the conclusion of such an agreement with either country, the model Status of-Forces Agreement dated 9 October 1990 (UN Doc A/45/594) shall apply provisionally with respect to UNMIS forces operating in that country’.

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33

  See section 1.2, ‘Authorization of programmes’.

34

  Although not universally held, the view that customary international law requires states (at least those states that permit an organization to operate within its territory) to grant privileges and immunities to international organizations has widespread support in the literature. See Muller, n 22, 47–51; Reinisch, n 14, 145ff; Higgins, Problems and Process: International Law and How We Use It (1994), 90–4; American Law Institute,Third Restatement of the Law: The Law of Foreign Relations of the United States, vol 1 (1987), §467(1); Amerasinghe, Principles of the Institutional Law of International Organizations (2nd edn, 2005), 344–8; Szasz, ‘International Organizations, Privileges and Immunities’ in Bernhardt (ed), n 14, vol II, 1325, at 1328; Akande, ‘International Organizations’ in International Law (4th edn, ed Evans, 2014), 268; Sands and Klein, eds, Bowett’s Law of International Institutions (6th edn, 2009), §15–039, which accepts such a customary obligation only with regard to the UN and not with regard to other organizations. See, however, Wood, ‘Do International Organizations Enjoy Immunity under Customary International Law?’ (2014) 10 Int Org L Rev 287, for the conclusion that there is no rule of customary international law conferring immunity on international organizations. States have also taken the view that there is a customary law obligation to grant some privileges and immunities to international organizations. It is of note that the 1946 Agreement between the UN and Switzerland, 1 UNTS 164, begins in Art 1 with Swiss recognition of the international personality of the UN. That provision then immediately states that ‘Consequently, according to the rules of international law, the Organization cannot be sued before Swiss Courts without its express consent.’ See also Art 3 of the host State Agreement between Spain and the World Tourism Organization, 1047 UNTS 85, which provides that ‘[t]he Organization shall enjoy such immunities and privileges as are customarily granted to international organizations of a universal character’. The view that customary international law requires host states to grant privileges and immunities to international organizations is also supported by judicial opinions. See, eg, ZM v Permanent Delegation of the League of Arab States to the UN (1993) 116 ILR 643 (Labour Court of Geneva, Switzerland); X et al v European School Munich II (Bavarian Administrative Court, Germany, 1995), referred to by Reinisch, n 14, 150–1; Iran–United States Claims Tribunal v AS (1985) 96 ILR 321, 329 (Dutch Supreme Court); Mendaro v World Bank, 717 F.2d 610,615 (DC Cir, United States, 1983); ESOC Official Immunity Case (1973) 73 ILR 683 (Federal Labour Court, FR Germany); Branno v Ministry of War (1954) 22 ILR 756 (Court of Cassation, Italy); International Institute of Agriculture v Profili (1930) 5 ILR 413 (Court of Appeal, Italy). However, in some cases, courts of states that are neither parties to the treaty nor host states have held that they are not obliged to grant immunities to international organizations in the absence of a treaty. See Bank Bumiputra Malaysia BHD v International Tin Council (1987) 80 ILR 24 (High Court, Malaysia); International Tin Council v Amalgamet (1988) 80 ILR 31 (New York Supreme Court,); ECOWAS v BCCI (1993) 113 ILR 473 (Court of Appeal of Paris, France). Reinisch notes that the question whether customary rules on the immunity of international organizations have developed ‘is a matter of contention’: Reinisch, ‘Introduction’, in Reinisch (ed), n 5, at 5. A number of domestic courts have held that international organizations do not enjoy immunity in the absence of a treaty basis. The Belgian Supreme Court held in League of Arab States, Re, League of Arab States v TM (Appeal Judgment) ILDC 42 (BE 2001), para 24, that there is no ‘general principle of public international law’ according to which an international organization enjoyed immunities in the absence of a treaty; similarly, the Canadian Supreme Court in Amaratunga v Northwest Atlantic Fisheries Organization (2013) SCC 66 and the Italian Supreme Court of Cassation in Drago v International Plant Genetic Resources Institute (IPGRI) ILDC 827 (IT 2007), paras 6.3, 6.5. For further case law and discussion, see Ryngaert, ‘The Immunity of International Organizations before Domestic Courts: Recent Trends’ (2010) 7 Int Org L Rev 121, 124–5; From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

and Wood, ‘Do International Organizations Enjoy Immunity under Customary International Law?’ (2013) 10 Int Org L Rev 287. 35

  This view has been expressed and was apparently not opposed in the General Assembly. See the Report of the Sixth Committee on the Question of Privileges and Immunities, A/ 6965 (1967), 22nd Session, [1967] UN Juridical YB 260: ‘The view was expressed that the contents of the 1946 Convention now formed part of general international law as between the Organization and its Members and were accordingly binding on States even in the absence of an express act of accession.’ See also Statement made by the Legal Counsel at the 1016th meeting of the Sixth Committee of the General Assembly on 6 December 1967, [1967] UN Juridical YB 311, 314, para 11: ‘I doubt that I am being over-bold in suggesting that the standards and principles of the [General] Convention have been so widely accepted that they have now become a part of the general international law governing the relations of States and the United Nations.’ 36

  Therefore the principles set out by the General Convention were regarded by the UN and other states as binding on the US prior to its becoming a party in 1970. See both sources in n 35. 37

  For a discussion of the incorporation of international law into domestic law, see Jennings and Watts (eds), Oppenheim’s International Law (9th edn, 1992), 52–82. 38

  For examples of national laws in this area, see Legislative Texts and Treaty Provisions concerning the Legal Status, Privileges and Immunities of International Organizations, 1959 and 1961 (UN Doc ST/Leg/Ser. B/10 & 11), vols I and II. See also the Austrian Law on the Granting of Privileges and Immunities to International Organizations, Federal Act of 14 December 1977, Austrian Federal Law Gazette no 677/1977, reproduced in [1977] UN Juridical YB 3; and Switzerland’s Federal Act on the Privileges, Immunities and Facilities and the Financial Subsidies granted by Switzerland as a Host State of 22 June 2007 (RS 192.12), as well as the Ordinance to the Federal Act on the Privileges, Immunities and Facilities and the Financial Subsidies granted by Switzerland as a Host State, 7 December 2007 (RS 192.121), reproduced in [2008] UN Juridical YB 3. In many countries, there is primary legislation that permits the enactment of secondary legislation that would confer stated privileges and immunities on particular international organizations, or which would bring into force the relevant provisions of treaties conferring privileges and immunities on particular organizations. The relevant legislation in the UK is the International Organizations Act 1968, which provides that the Executive may by subsidiary legislation (Order in Council) grant the stated privileges and immunities to international organizations of which the UK is a member. See also the International Organizations Act 2005, which extends the privileges and immunities accorded to specific organizations. In the US, by s 1 of the International Organization Immunities Act, 1945, an international organization will benefit from the Act if the US participates in the organization and the President, by Executive Order, designates the organization as being entitled to enjoy the privileges, exemptions, and immunities provided for in the Act. Switzerland is an example of a state that accords diplomatic privileges and immunities to a broader group than is required by its international obligations (see n 220). 39

  See generally, Reinisch, n 14, 84ff; and, in relation to the UK, Sarooshi and Tzanakopoulos, ‘United Kingdom’ in The Privileges and Immunities of International Organizations in Domestic Courts (ed Reinisch, 2013), 276ff. The lack of domestic legal personality of an international organizations may prevent an international organization from suing—and being sued—in domestic courts: see Arab Monetary Fund v Hashim (No 3) [1991] 2 AC 114, [1990] 2 All ER 769, [1990] 3 WLR 139, in which the Court of Appeal found that the Arab Monetary Fund (AMF) could not sue its former employee. The House of Lords, however, upheld an appeal against this decision, finding that the AMF did enjoy From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

domestic legal personality, as it was an entity incorporated under Abu Dhabi law: see Arab Monetary Fund v Hashim (No 3) [1991] 1 All ER 871 (HL). The fact that unincorporated treaties are not justiciable under UK law may constitute a further hurdle: see International Tin Council (The Receivership Action) [1988] All ER 257, (1988) 80 ILR 191 (CA). In that case, the Court found that rights of the ITC against its members could not be enforced in English courts because they derived from an unincorporated treaty (the ITA6). 40

  ILC, Draft Articles on the Responsibility of States for Internationally Wrongful Acts (YBILC, 2001, II(2), Art 3); Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement ICJ Rep 1988, p 12, 34, para 57: ‘It would be sufficient to recall the fundamental principle of international law that international law prevails over domestic law.’ This broad statement was made in connection with a dispute between the UN and the US relating to the Anti-Terrorism Act passed by the US Congress in 1987, which required the closure of the Palestine Liberation Organization (PLO) Observer Mission to the UN. The statement made by the Court was in response to (i) the statement by the US Attorney General that the Act of Congress required him to close the PLO Mission, ‘irrespective of any obligations the United States may have under’ the Headquarters Agreement; and (ii) the statement by the Assistant Attorney General that the Act had ‘superseded the requirements of the United Nations Headquarters Agreement to the extent that those requirements are inconsistent with the statute’ (ibid, para 47). 41

  US/UN Headquarters Agreement, s 26.

42

  Art II, s 2, General Convention.

43

  Art IV, s 11, General Convention.

44

  Art V, s 15, US/UN Headquarters Agreement, n 23.

45

  Section 26, US/UN Headquarters Agreement, n 23. The question of the possible conflict between the two treaties is complicated by the fact that the parties to the two treaties are not the same. Given that only the UN and the US are parties to the Headquarters Agreement, it is doubtful that a provision in that treaty can deprive other parties to the General Convention of rights they may have under that Convention. Therefore, if a conflict were to arise, it is only the UN and the US in their bilateral relations that would be bound to accept the supremacy of the US/UN Headquarters Agreement. The matter is also complicated by the fact that the General Convention articulates the obligations already set out in Art 105 of the UN Charter (see n 12), and by the provisions of Art 103 of the Charter, which provide that Charter obligations prevail over obligations under any other international agreement. 46

  Provisions similar to s 26 of the US/UN Headquarters Agreement, n 23 are often included in bilateral agreements. See, eg, s 20(b) of the Agreement with Chile concerning the UN Economic Commission for Latin America and the Caribbean, 314 UNTS 49; Art XXI (1) of the Agreement between the UN and the Republic of Korea regarding the Headquarters of the Asian Pacific Training Centre for Information and Communication Technology for Development, [2006] UN Juridical YB 11; 2363 UNTS 301. Note, however, that these agreements do not provide that in the event of a conflict with the General Convention, the bilateral agreement shall prevail. In the event of a genuine conflict, and to the extent that the UN is to be regarded as party to the General Convention (or in any event deriving rights from it), the application of the rules of treaty law relating to successive treaties might lead to the conclusion that subsequent bilateral agreements prevail over the General Convention, but only in the bilateral relations between the UN and the state concerned. This means that such an agreement may not derogate from rights conferred on other members by the General Convention. See [1987] UN Juridical YB 211 for the view that in the event of a conflict between the General Convention and the Agreement

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regarding the headquarters of the Economic and Social Commission for Western Asia, the latter would prevail as lex specialis. Section 36 of the General Convention allows the conclusion of supplementary agreements with members that may vary the position of the member vis-à-vis the UN under the General Convention. However, these supplementary agreements must be approved by the General Assembly. Note that s 36 has never been used. The matter is also complicated by the fact that the General Convention articulates the obligations already set out in Art 105 of the UN Charter (see n 12), and by the provisions of Art 103 of the Charter, which provide that obligations under the Charter prevail over obligations under any other international agreement. 47

  See n 30.

48

  See, eg, the arguments of the applicants in the cases referred to in n 50.

49

  See n 12.

50

  See the decisions of the Brussels Court of First Instance and Court of Appeal in Manderlier v United Nations and Belgian State, [1966] UN Juridical YB 283; [1969] UN Juridical YB 236–7. See also the decision of the Dutch Supreme Court, in Case 10/04437 Mothers of Srebrenica Association v the State of the Netherlands and the United Nations (Supreme Court of the Netherlands, the Netherlands, 2012), where the Court stated that, with respect to the immunity of the UN from legal process (at para 4.3.6), ‘That immunity is absolute. Moreover, respecting it is among the obligations on UN member states which… under article 103 of the UN Charter, prevail over conflicting obligations from another international treaty.’ 51

  See generally, Reinisch, n 14, 13–17; Denza, ‘Diplomatic Agents and Missions, Privileges and Immunities’ in Bernhardt (ed), n 14, vol II, 1042, at 1045. 52

  See Klabbers, An Introduction to International Organizations Law (3rd edn, 2015), 136. Section 7 of the US/UN Headquarters Agreement, n 23, makes it clear that US law applies within the Headquarters District, unless otherwise provided by the Agreement. 53

  UN Charter, Art 105(1).

54

  UN Charter, Art 105(2).

55

  See generally, Bekker, n 14, Part Two, Step Two. Although the principle of functional necessity establishes the privileges and immunities to which the organization is entitled, where those privileges and immunities are specified by treaty, the treaty must be taken as specifying what is considered necessary. This means that states (including domestic courts) may not question their obligation to accord those privileges and immunities specified in the treaty because they take the view that the privileges are not necessary for the functioning of the organization. See M v UN and Belgium (1969) 69 ILR 139, 143 (Court of Appeal, Brussels, Belgium 1969); Mothers of Srebrenica v The Netherlands and the United Nations, 295247/HA ZA 07-2973, para 5.14, at http://www.haguejusticeportal.net/eCache/DEF/ 9/478.html (District Court of the Hague, The Netherlands, 2008); Stichting Mothers of Srebrenica v the Netherlands and the United Nations (Appeal Court of The Hague, 30 March 2010) LJN BL8979, para 4.4; Stichting Mothers of Srebrenica v the UN (Dutch Supreme Court, 13 April 2012) LJN BW 1999, para 4.2; also Wickremasinghe, ‘International Organizations or Institutions, Immunities before National Courts’ in The Max Planck Encyclopedia of Public International Law (ed Wolfrum, 2008), online edition at http:// opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e502, paras 22 and 23.

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Where there is no treaty granting privileges and immunities apart from the UN Charter, states and courts will need to consider what is necessary. However, the UN General Convention 1946 should be taken as specifying the minimum immunities that are necessary (see n 11). 56

  See Jenks, International Immunities (1961), 17–18; Bekker, n 14, 99–103; Reinisch, n 14, 233–40; Szasz, ‘International Organizations, Privileges and Immunities’ in Bernhardt (ed), n 14, vol II, 1325, at 1326. See also Díaz-González (Special Rapporteur), ‘Fourth Report on Relations between States and International Organizations (Second part of the Topic)’, UN Doc A/CN4/424), YBILC, 1989 II(1), p 153, at 157. 57

  See the amicus curiae brief of the UN (reprinted in [1980] UN Juridical YB 229) filed in Broadbent v Organization of American States (1980) 63 ILR 163 (DC Cir, US): ‘International Organizations may be considered as collective enterprises of their member States. Their constituent treaties define precisely the influence each member is to have on the operations of the organizations, and how that influence is to be exercised generally through collective organs. If individual members could then exert additional influence on those organizations, largely through the fortuitous circumstances of where their headquarters, or the offices or officials or assets, happen to be located this could drastically change the constitutionally agreed sharing of power within the organizations. Thus the immunity granted by states to an intergovernmental organization is really their reciprocal pledge that none will attempt to garner unilaterally an undue share of influence over its affairs.’ See also Jenks, n 55, 17, who states that ‘international institutions should have a status which protects them against control or interference by any one government in the performance of functions for the effective discharge of which they are responsible to democratically constituted international bodies in which all the nations concerned are represented’. Jenks is there summarizing a memorandum prepared by the International Labour Office, which set out proposals that eventually formed the basis for the UN General Convention (ILO Memorandum, International Labour Office, Official Bulletin, 10 December 1945, vol xxvii, no 2, 199). 58

  The independence of the organization not only justifies its protection from interference with regard to processes directly instituted by national governments, but may also justify protection from actions of third parties or legal processes that may be brought by third parties or other actions. For example, the inviolability of the premises of the organization includes an obligation on host states to exercise due diligence to protect against disturbances to the premises of the organization (eg US/UN Headquarters Agreement, n 23, s 16). Furthermore, when third parties institute legal proceedings against the organization, they inevitably seek to have particular national law applied to the functions of the organization. Acceptance of the application of national law to the internal workings of the organization would mean acceptance of the power of states to compel the organization to act in particular ways. However, the question has been raised whether all actions by third parties should be considered as impeding the achievement of the functions of the organization. See Gaillard and Pingel-Lenuzza, ‘International Organizations and Immunity from Jurisdiction: To Restrict or to Bypass’ (2002) 51 ICLQ 1, 5. By contrast, it has been argued that it ought to be acceptable for national law to apply (and consequently for national courts to act) where the action relates to claims for monetary compensation for services rendered to the organization, or tortious actions committed by international organizations. See generally Reinisch, n 14, ch 6. 59

  See Memorandum of Law: United Nations Immunity from Real Property Tax, prepared by the UN Office of Legal Affairs, 1953: ‘Without this immunity, the independent functioning of the Organization would be compromised by the ability of Member Governments to

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impose taxes on the essential assets of the Organization’, quoted in UN Privileges and Immunities Study (1967), n 7, 245, para 167, §2; Bekker, n 14, 106. 60

  See UN General Convention 1946, ss 7, 8, and 18(b).

61

  Bekker, n 14, 106; Reinisch, n 14, 241; Ahluwalia, The Legal Status, Privileges and Immunities of the Specialised Agencies of the United Nations and Certain Other International Organizations (1964), 89–90. Cf European Molecular Laboratory Arbitration (EMBL v Germany) (1990) 105 ILR 1, 47 where the arbitration tribunal stated that it was questionable whether a general legal principle exists that a headquarters state must not derive any financial advantages from the activities of the organization on its territory. However, the principle as expressed there (‘any financial advantages’) is probably too broad. The point is that those exemptions from taxes as provided for in the General Convention and other treaties are intended to prevent significant transfers of financial resources from common funds to individual states. 62

  See Memorandum of Law: United Nations Immunity from Real Property Tax, prepared by the UN Office of Legal Affairs, 1953, asserting that the ability of states to impose taxes on the essential assets of the organization ‘would not only constitute enrichment of one Member Government at the expense of all others but would give the taxing authority a measure of indirect control over the workings of the Organization’. Quoted in UN Privileges and Immunities Study (1967), n 7, 245, para 167. See also Jenks, n 56, 17; and ILO Memorandum, International Labour Office, Official Bulletin, n 56. 63

  Privileges and immunities granted for this reason include the exemptions from financial controls restricting the transfer and convertibility of funds (UN General Convention 1946, ss 5 and 11(c)); the exemptions from prohibitions and restrictions on import and export of articles for official use (ibid, s 7(b) and (c)); facilities with respect to communication and currency restrictions (ibid, ss 9, 10, 11(e), and 18(e)); the right of the organization to operate radio broadcasting facilities (US/UN Headquarters Agreement, n 23, s 4); the obligation of the host state to permit transit to and from the Headquarters District (ibid, s 11). 64

  On independence as the basis for state immunity, see Fox and Webb, The Law of State Immunity (3rd ed, 2013), ch 2, 26f. 65

  See Wickremasinghe, ‘Immunities Enjoyed by Officials of States and International Organizations’ in Evans (ed), n 34, 379, 389. 66

  See the Vienna Convention on Diplomatic Relations 1961.

67

  See Arrest Warrant of 11 April 2000 Case (Democratic Republic of the Congo v Belgium) ICJ Rep 2002, p 3, paras 51–5; and see Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal, ibid, para 75: ‘[I]mmunities are granted to high State officials to guarantee the proper functioning of the network of mutual inter-State relations, which is of paramount importance for a well-ordered and harmonious international system.’ See also the UN Convention Special Missions 1969, 1400 UNTS 231. 68

  In this sense Case of Al-Adsani v the United Kingdom App no 35763/97 (ECHR, 21 November 2001), para 54; Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) (Judgment) ICJ Rep 2012, p 99, at 123, para 57. 69

  See the statement of the ICJ in Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) ICJ Rep 1949, p 174, at 179, that though the UN is an international person, ‘that is not the same thing as saying that it is a State, which it certainly is not…. Still less is it the same thing as saying that it is a “super-State”.’

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70

  See sections 2.3, ‘Privileges and immunities as protection of the independence of the organization’, and 2.4, ‘Privileges and immunities as a means of ensuring the equality of member states and preventing the gaining of an undue financial advantage’. 71

  See Fox and Webb, n 64, 571. Although the UN has an internal mechanism for dealing with staff disputes, and will usually make provision for arbitration in contracts into which it enters, tortious claims against the UN are not automatically subject to the jurisdiction of an alternative dispute settlement system. On this point, see Klabbers, n 52, 136. 72

  See Arts 8 and 38, Vienna Convention on Diplomatic Relations.

73

  It is therefore not surprising that the two cases that have been referred to the ICJ relating to the immunities of UN experts on mission involve interference by organs of the state of nationality and state of residence with the exercise of the functions of the expert. See Applicability of Article VI, s 22 of the Convention on the Privileges and Immunities of the United Nations (Mazilu) (Advisory Opinion) ICJ Rep 1989, p 177 (the Mazilu case); Difference Relating to the Immunity from Legal Process of a Special Rapporteur of the Commission of Human Rights (Cumaraswamy) (Advisory Opinion) ICJ Rep 1999, p 62. It appears that some host state agreements provide for a different regime for nationals of the host state; see, eg, Letter from the President of the International Court of Justice to the Minister for Foreign Affairs of the Netherlands, 26 June 1946, General Principles I–III. 74

  Sands and Klein (eds), n 34, §15–034; Reinisch, n 14, 250.

75

  UN General Convention 1946, s 2. Many of the UN’s bilateral treaties contain a similar provision (eg UN/Switzerland Agreement, 1946, n 28, s 1, and some of the treaties with the hosts of the UN’s economic commissions—see n 30). However, some important treaties setting out the immunities of the UN do not contain a provision for immunity from legal process, eg, the US/UN Headquarters Agreement, n 23, and the UN’s treaty with Ethiopia regarding the Economic Commission for Africa (1958). 76

  For cases upholding the immunity of the UN in domestic courts, see Curran v City of New York, 77 NYS 2d 266 (Supreme Court, New York, 1947); Awad Iskandar Guirgis v UNRWA Representative (Cairo Court of First Instance, Dept 23—Labour Tribunal), Case No 258 of 1958, 1961; Bergaveche v United Nations Information Centre (Camara Nacional de Apelaciones del Trabajo de la Capital Federal, Argentina, 1958); M v UN and Belgium (1969) 69 ILR 139, 143 (Court of Appeal, Brussels, Belgium); Mothers of Srebrenica v The Netherlands and the United Nations, 295247/HA ZA 07-2973, at http:// www.haguejusticeportal.net/eCache/DEF/9/478.html (District Court of The Hague, the Netherlands, 2008), upheld on appeal, Case no 200.022.151/01 (Hague Court of Appeal) at http://www.haguejusticeportal.net/Docs/Dutch%20cases/ Appeals_Judgment_Mothers_Srebrenica_EN.pdf and Case 10/04437 (Supreme Court of the Netherlands, the Netherlands, 2012). See also Stichting Mothers of Srebrenica and Others v The Netherlands App no 65542/12 (ECHR, 11 June 2013). 77

  The immunity also applies in cases in which an organ of the organization is named as a party. This is because organs do not have their own separate legal personality but are merely a part of the UN. See ch 11, ‘The Legal Personality of the United Nations’. See also Ziegler, ‘Article 104’ in Simma et al (eds), n 12, 2148, MN 28. Where a body that is related to the UN in some way is found not to be an organ of the UN, that body and its officials will not be entitled to the benefit of Art 105 or of the UN General Convention 1946. See Letter to the Registrar of the Special Court for Sierra Leone, [2003] UN Juridical YB 520 (the Special Court for Sierra Leone (SCSL), though established by treaty between the UN and Sierra Leone, is an independent treaty-based body, and its judges and officials do not benefit from the UN General Convention); Note to the Assistant Secretary-General and Deputy to the Under-Secretary-General of the Office of Legal Affairs, United Nations, 2003, 525 (Military Armistice Commission established by 1953 Armistice Agreement to end the

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Korean War not a UN body despite being signed by Commander in Chief ‘UN Command’; UN Command not a subsidiary body of the Security Council.) Early cases in which some courts failed to accord immunity to the UN Relief and Works Agency (UNRWA) may be explained as a failure to recognize that the UNRWA was an organ of the UN and therefore benefitted from the immunity of the UN. See Ziegler, above, MN 29. 78

  Thus the immunity from legal process applies in cases where a party seeks a garnishee order in respect of the salary of a staff member. See Matter of Menon (Supreme Court, New York, 1973), [1973] UN Juridical YB 198 (the Menon case): immunity from legal process can be ‘extended’ over the UN’s agents and employees, to protect an employee’s salary from suit; and Means v Means, [1969] UN Juridical YB 243: ‘[M]onies which the United Nations is in the process of transmitting to its own employees cannot be interfered with en route unless and to the extent that the sovereign consents.’ See also Legal Opinion to the United Nations Industrial Development Organization (UNIDO), [1968] UN Juridical YB 215, where immunity operated to prevent compulsion of payment of a debt by UNIDO to a staff member’s creditor. But see In re Poncet (Federal Tribunal, Switzerland, 1948), cited in UN Privileges and Immunities Study (1967), n 7, 224, para 77: although the specific inviolability of the organization’s financial assets is also a defence for the organization, its immunity ‘from every form of legal process’ in itself prevents the issue of a garnishee order and the incurring by the UN of any legal obligation to participate in the proceedings themselves or to abide by any judgment given. The local authorities therefore declined to issue the appropriate order on the grounds that the garnishee, the UN, was not subject to local jurisdiction. The Federal Tribunal, however, held that ‘notice to the garnishee is not an essential condition of the validity of the attachment’, and so the fact that notice of attachment could not be served on the UN in Re Poncet was not a bar to proceedings for attachment for debt. In these cases proceedings will also be barred because of the immunity of UN’s assets from interference (UN General Convention 1946, s 3). 79

  See Sands and Klein (eds), n 34, §15-043; Amerasinghe, n 34, 322. It is significant that where UN-related organizations are established to undertake commercial functions, specific provision is made for a lack of immunity. See, eg, Art VII, s 3 of the International Bank for Reconstruction and Development Articles of Agreement (as amended effective 27 June 2012); Art VI, s 3 of the International Finance Corporation Articles of Agreement (as amended effective 27 June 2012); and Art VI, s 3 of the Articles of Agreement of the International Monetary Fund (as amended effective 26 January 2016). 80

  There are a number of cases, principally in Italy but also in the US, Russia, and Kenya, where courts have applied the principle of restrictive immunity to international organizations. See generally Reinisch, n 14, 186ff; Wickremasinghe, n 55, §§14–21; Reinisch and Weber, ‘In the Shadow of Waite and Kennedy’ (2004) 1 Int Org L Rev 59f; Ryngaert, n 34, 123ff. See particularly ICEM v Di Banella Schirone (1978) 77 ILR 575 and ICEM v Chiti [1976] Italian YIL 350, where the Italian Corte di Cassazione interpreted an agreement that provided for the immunity of the Intergovernmental Committee for European Migration in terms identical to that contained in the UN General Convention, as providing for restrictive immunity only. In the US, the application of the restrictive immunity doctrine, derived from state immunity, to the immunity of international organizations was said to follow from the manner in which the US International Organizations Immunity Act conferred immunity on international organizations. Section 2(b) of that Act provided that international organizations are to enjoy ‘the same immunity from every judicial process as is enjoyed by foreign governments’. However, the Act was enacted at a time when the US accorded absolute immunity to foreign states. US law later changed to the restrictive immunity approach: see the Foreign Sovereign Immunities Act (1976) 15 ILM 1388. The UN’s absolute immunity was upheld in Brzak v United Nations 597 F.3d 107 CA2 (NY), 2010, a labour dispute involving allegations of sex discrimination. In Italy, the application of the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

restrictive immunity doctrine to international organizations was reversed in 1992 by the Corte di Cassazione in FAO v Colagrossi, (1992) 101 ILR 386. In the US, the restrictive immunity doctrine has not been applied in cases concerning the UN. In relevant cases, US courts have upheld the absolute immunity of the UN. See Boimah v UN General Assembly (1987) 113 ILR 499, 664 F Supp 69 (United Nations District Court for the Southern District of New York (SDNY), 1987); De Luca v United Nations, 841 F Supp 531 (SDNY, 1994). In other cases, the court has found that the relevant action could not be considered commercial. See Askir v Boutros Boutros Ghali et al, 933 F Supp 368 (SDNY, 1996), a case dealing with occupation of property in Somalia by a UN peacekeeping mission. See O’Toole, ‘Sovereign Immunity Redivivus: Suits against International Organizations’ (1980) 4 Suffolk Transnational Law Journal 1; Cully, ‘Jurisdictional Immunities of Intergovernmental Organizations’ (1982) 91 Yale LJ 1167; Oparil, ‘Immunity of International Organizations in United States Courts: Absolute or Restrictive’ (1991) 24 Van JTL 689. The Kenyan Court of Appeal upheld the restrictive immunity doctrine in Tononoka Steels Limited v Eastern and Southern Africa Trade and Development Bank, Appeal judgment, Civil Appeal No 255 of 1998, ILDC 1283 (KE 1999) H4-H5, paras 55, 60; but not in Killeen v International Centre of Insect Physiology and Ecology, First instance, Civil Case 1737 of 2002, ILDC 77 (KE, High Court, 2005) H1-2, paras 8–9. The Russian Supreme Commercial Court upheld the restrictive immunity doctrine in Closed Joint-Stock Company and National Information Agency ‘Television News Service’ v International Inter-State Broadcasting Company ‘MIR’, Decision on ‘nadzor review’, 13111/03, ILDC 27 (RU 2004), H1-H2, paras 12, 19, case referred to by Ryngaert, n 34, 129. The Italian Supreme Court of Cassation refused to grant immunity in a labour dispute in Drago v International Plant Genetic Resources Institute (IPGRI), Final Appeal Judgment, Case No 3718, Giustizia Civile Massimario, 2007, 2, ILDC 827 (IT 2007), H1–H5. Because the organization in question had failed to provide an independent and impartial judicial remedy for the resolution of employment-related disputes, the Court held that the Headquarters Agreement was incompatible with Art 24 of the Italian Constitution, (ibid, para 6.7). This, however, does not seem to have been motivated by the restrictive immunity doctrine. A restrictive functional necessity approach seems to have been upheld by the District Court of The Hague in Restaurant De La Tour v EPO, 356198/KG ZA 10–11 (2010), but not in other cases, in particular in the 2009 EPO case, X v European Patent Organization, Final appeal judgment, Case No 08/00118, LJ BI9632, ILDC 1464 (NL, Supreme Court, 2009), H1, para 3.3. Similarly in Euratom Case, Greenpeace Nederland and Procurator General at the Supreme Court of the Netherlands (intervening) v Euratom, Judgment on Appeal in Cassation, Decision No LJN: BA9173, RvdW (2007) No 992, NJ 2008, 147, ILDC 838 (NL, Supreme Court, 2007), H1–H2, paras 6.2–6.3. The Zimbabwe Supreme Court upheld the restrictive immunity doctrine in a labour dispute brought against the International Committee of the Red Cross (ICRC), International Committee of the Red Cross v Sibanda and Another 2007 (1) SA 476 (ZS), 480D, case referred to by Fox and Webb, n 64, 575. The Court held that ‘it could hardly have been the intention of the Legislature to grant absolute immunity from suit and legal process to such an organisation when a foreign sovereign did not enjoy such immunity’ (at 480D, per Sandura JA). The Canadian Superior Court held that the International Civil Aviation Organization enjoyed a ‘quasi-absolute’ immunity: Trempe v Staff Association of the International Civil Aviation and ors, Judgment on jurisdiction, 2003 CanLII 44121, ILDC 1748 (CA 2003), H10, para 61 (‘La seule réserve serait le cas où une organisation internationale serait engagée dans une

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activité commerciale et qu’elle n’aurait pas prévu les modes de règlement des conflits selon les dispositions de l’article 33 de l’Accord de siege’). Austrian and Swiss courts have upheld the absolute immunity of international organizations: see Company Baumeister Ing Richard L v O, Final appeal/cassation, 10 Ob 53/04y, ILDC 362 (AT 2004) H2, para 12; NML Capital Ltd and EM Limited v Bank for International Settlements and Debt Enforcement Office Basel-Stadt, Final appeal judgment, No 5A 360/2010, BGE 136 III 379 (partial), ILDC 1547 (CH, Swiss Federal Tribunal, 2010), para 4.3.1. The absolute immunity doctrine was also upheld by Danish courts, in relation to UNICEF: Investment & Finance Company of 11 January 1984 Limited (Investerings- & Finansieringsselskabet af 11/1 1984 ApS) v UNICEF [United Nations Children’s Fund], First Instance, Case No U 2000 478 Ø, ILDC 64 (DK, High Court for Eastern Denmark, 1999), 26 August 1999, H3, A1 (Jon Stokholm). In Mahalwas v United Nations Truce Supervision Organization and Attorney General (intervening), Appeal Decision, PLA 3093/07, ILDC 1070 (IL, District Court, 2007), H1, the Israeli District Court held that the United Nations Truce Supervision Organization (UNTSO) enjoyed absolute immunity from execution proceedings. 81

  The position is different with regard to international financial institutions connected with the UN, namely the organizations in the World Bank group and the International Monetary Fund (IMF). The constituent instruments of those organizations provided that actions may be brought against those organizations in the court of a member in which the organization has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed service (see n 76). 82

  See Askir v Boutros Boutros Ghali et al, 933 F Supp 368 (SDNY, 1996); M v UN and Belgium (1969) 69 ILR 139, 143 (Court of Appeal, Brussels, Belgium), (District Court of The Hague, 10 July 2008) LJN BD6796; Stichting Mothers of Srebrenica v The Netherlands and the United Nations (Appeal Court of The Hague, 30 March 2010) LJN BL8979; Stichting Mothers of Srebrenica v the United Nations (Dutch Supreme Court, 13 April 2012) LJN BW1999; all available in English translations at https://uitspraken.rechtspraak.nl/ inziendocument?id=ECLI:NL:RBDHA:2014:8748; Delama Georges et al v the United Nations et al (2015) 84 F Supp 3d 246 (US District Court SDNY); Delama Georges et al v the United Nations et al (2016) 834 F Supp 3d 88 (US Court of Appeals, 2nd Circuit). All of these cases relate to the acts or omissions of UN peacekeeping forces. 83

  Boimah v UN General Assembly (1987) 113 ILR 499, 664 F Supp 69 (SDNY, 1987); De Luca v United Nations, 841 F Supp 531 (SDNY, 1994). See also the cases in Vorkink and Hakuta, Lawsuits against International Organizations: Cases in National Courts Involving Staff and Employment (1983), at 12–22. Note, however, that there have been cases where national courts have wrongly refused to accord immunity in employment cases. See cases involving UNRWA cited in Vorkink and Harkuta, ibid, and, more recently, the decision of the Brazilian Superior Labour Court in Espólio de Rogério Tristão Rodrigues v União (PGU) and Organização das Nações Unidas (ONU) / Programa das Nações Unidas para o Desenvolvimento (PNUD), TST-RR-94200-84.2003.5.10.0003, 27 October 2010, where it found that in accordance with Brazilian law, the applicant could not be required to submit the labour dispute to arbitration and allowed the case to proceed. 84

  In cases where judicial proceedings are brought against the organization, the UN does not appear to plead immunity, notwithstanding that its appearance in legal proceedings would not constitute a waiver of that immunity. Instead, the UN asserts its immunity by written communication sent to the Foreign Ministry of the state concerned (usually through its Permanent Representative at the UN’s Headquarters). See UN Privileges and Immunities Study (1967), n 7, 219–20. See also [1991] UN Juridical YB 320, where the UN Office of Legal Affairs advised UNICEF not to retain local counsel to plead immunity and stated that it expected the Ministry of Foreign Affairs of the state concerned to From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

communicate with the court. The UN sometimes becomes involved in judicial proceedings in domestic or regional courts through the submission of amicus curiae briefs. This was the case, for example, in the proceedings leading up to the European Court of Human Rights’ (ECtHR’s) decision in Behrami and Saramati v France, Germany and Norway App nos 71412/01 and 78166/01 (ECHR, 2 May 2007). Amicus briefs ‘should only be submitted in cases where the United Nations Secretariat has a clear interest in presenting its views to the court concerned’, and ‘do not purport to waive the privileges and immunities of the United Nations or its staff’: [2008] UN Juridical YB 422, paras 3b and 4. Indeed, such briefs will usually contain a statement to the latter effect. 85

  UN General Convention 1946, Art II, s 2: the UN is immune from legal process, ‘except in so far as in any particular case it has expressly waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.’ 86

  There is no specific provision stating who is competent to waive the UN’s immunity (unlike ss 20 and 23 of the UN General Convention dealing with waiver of the immunity of officials and experts on mission by the Secretary-General). However, UN practice indicates that only the Secretary-General may waive the immunity of the organization. It is suggested that this is because the Secretary-General is responsible for the administration of the UN. The fact that the General Assembly found it necessary to include a limitation upon the extent of any waiver also supports the conclusion that it intended to transfer the authority to the Secretary-General: if it remained the waiving authority, there would be no need to limit its own right to waive immunity. In practice, the Secretary-General has determined in all cases whether or not the immunity of the organization should be waived. UN Privileges and Immunities Study (1967), n 7, 225. 87

  See Memorandum of Law, UN Office of Legal Affairs, 1949; UN Privileges and Immunities Study (1967), n 7, 225–6. In a 1949 suit for damages arising out of a motor car accident involving a UN vehicle, the Office of Legal Affairs advised that the SecretaryGeneral ‘clearly has the power to waive the immunity of the United Nations to permit such cases to be brought’, under the resolution in question. The question as to when the UN might be prepared to waive its immunity in other circumstances may be complex, but insurance cases were considered to be ‘in a class by themselves’. Thus, the UN would usually waive immunity in cases arising out of car accidents. However, this practice does not apply in respect of operations carried out under a technical assistance programme. In such cases, the agreement between the UN and the host government will usually require the host state to assume responsibility for claims arising out of the programme, as ‘waiver of United Nations immunity would not be in accordance with the principles incorporated in international agreements or the practices observed by the United Nations pursuant to those agreements’. See The Practice of the United Nations, the Specialized Agencies and the IAEA concerning their Status, Privileges and Immunities: Study Prepared by the Secretariat, UN Doc A/CN,4/L.383 and Add 1–3, YBILC, 1985, II, p 145 at 162, para 20 (hereinafter ‘UN Privileges and Immunities Study (1985)’). 88

  UN General Convention, s 2. A choice of law clause in a contract ought not to be regarded as a waiver of immunity. Art 7(2) of the UN Convention on the Jurisdictional Immunities of States and their Property 2004 provides such a rule with regard to state immunity. For a contrary view, see the decisions by the Italian courts with regard to other organizations, cited by Reinisch, n 14, 224ff. Because such a clause may be wrongly regarded as a waiver of immunity, the UN consistently refuses to include a choice of law clause in its contracts. See [1994] UN Juridical YB 449.

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89

  See UN Privileges and Immunities Study (1967), n 7, 225. The UN’s position is based on the text of the Agreement, which is different from that of other organizations, which provide for waiver of immunity ‘for the purpose of any proceedings or by the terms of any contract’ (eg Art IX(3), IMF Articles of Agreement). The UN’s position is also based on the drafting history, where similar terms were included in the original draft of Art 2 but then deleted in favour of the narrower expression currently found in s 2. Permission is given to waive immunity only in so far as legal process in any particular case is concerned, and such waiver cannot extend to any measure of execution. The wording of the General Convention was deliberately restrictive, and so it appears that it was not the intention of the General Assembly or Preparatory Commission to extend waiver to future cases. 90

  Many domestic courts are prepared to accept waivers of immunity made in advance in contracts by international organizations. See Standard Chartered Bank v International Tin Council (1986) 77 ILR 16; Arab Banking Corporation v International Tin Council (1986) 77 ILR 1 (HC). However, there may be a separate question as to whether a waiver included in a contract has been given by the competent authority. Where the contract has not been approved by the Secretary-General, the waiver would be considered to be improper from the UN’s internal point of view. See [1989] UN Juridical YB 354–5, emphasizing the restrictive interpretation of the right of waiver; that the power to waive is vested only in the Secretary-General; that such a power has not been delegated; that the waiver may only be made at the time a court is considering a particular case and when the Secretary-General determines that waiver of immunity is desirable in the interest of justice. This position has been upheld by state courts. In any case, even if such waiver were possible, it cannot extend to any measure of execution, and so landlords, such as those in the case discussed, could not enforce court judgments or orders obtained against the UN. 91

  See Art 7(2) of the UN Convention on the Jurisdictional Immunities of States and their Property 2004. For discussion of cases where domestic courts have exercised jurisdiction with regard to arbitrations entered into by international organizations, see Gaillard and Pingel-Lenuzza, n 57, 13; and Reinisch, n 14, 226ff. 92

  See nn 99–100.

93

  See section 2.

94

  See n 76.

95

  For these developments, see Fox and Webb, n 63, chs 13–15 (immunity from adjudication) and 16–17 (immunity from enforcement). 96

  See Gaillard and Pingel-Lenuzza, n 57; Peters, ‘Die funktionale Immunität internationaler Organisationen und die Rechtsweggarantie’, SZIER (2011) 397, 408–9, 417. 97

  This follows from the wording of s 2 of the UN General Convention 1946, which provides for immunity of the UN, ‘except in so far as in any particular case it has been expressly waived its immunity’. See discussion of waiver in section 7. 98

  UN General Convention, ss 20 and 23. There is a similar provision (s 14) with regard to waiver by a state of the immunity of its representatives. 99

  UN General Convention 1946, s 29(a).

100

  UN Privileges and Immunities Study (1985), n 87, at 156, §VII. UN practice requires that all contracts provide for arbitration, and cases in which provision is not made for arbitration arise usually as a result of the preference of the other party: ibid, 160, §XII. 101

  When individuals sought compensation for injury caused by the 2010 cholera outbreak in Haiti, which had, according to experts, with very high likelihood, been introduced by Nepalese peacekeepers participating in the UN Stabilization Mission in Haiti, the UN concluded that it did not have an obligation to settle such disputes because the claims could not be qualified as ‘private’. See Pavoni, ‘Choleric notes on the Haiti Cholera Case’ (2015) From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

19 Questions of International Law 19. The UN’s immunity in relation to the claims was subsequently affirmed: Delama Georges et al v the United Nations et al (2015) 84 F Supp 3d 246 (US District Court SDNY); Delama Georges et al v the United Nations et al (2016) 834 F Supp 3d 88 (US Court of Appeals, 2nd Circuit). For the argument that the claims in this case (and similar cases) were indeed private law claims, see Boon, ‘The United Nations as Good Samaritan: Immunity and Responsibility’ (2016) 16 Chicago JIL 341. 102

  SOFAs usually provide for the creation of standing claims commissions: see para 51 of the Model SOFA, n 32; General Assembly of the United Nations (UNGA), ‘Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations: Financing of the United Nations peacekeeping operations’, UN Doc A/51/389, 20 September 1996, paras 21–2; and UNGA, ‘Report of the Secretary-General on procedures in place for implementation of article VIII, Section 29, of the Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly on 13 February 1946’, UN Doc A/C.5/49/65, 24 April 1995, paras 16–20. Standing claims should be composed of one member appointed by the Secretary-General, one member appointed by the government, and a jointly appointed chairman. Decisions should be final and binding. However, such claims commissions have never been established. There are two ways in which the UN has settled claims in the past: lump-sum agreements with the state of nationality of the victims; and direct compensation granted through local claims review boards. In the case of lump-sum agreements, the UN agrees to pay a set amount of compensation for damages, which is paid directly to states exercising diplomatic protection on behalf of their nationals. However, it was only during the first UN operation in the Congo (1960–4) that such settlements were reached: see UNGA, ‘Administrative and budgtary aspects of the financing of the United Nations peacekeeping operations’, above, paras 36–37; and n 105. Local claims review boards are UN administrative organs and report to the SecretaryGeneral: see Schmalenbach, ‘Third Party Liability of International Organizations’ (2006) International Peacekeeping 10, 33, 41. They usually make recommendations and propose a settlement to the victim, but often do not specify the legal basis of claims. Sometimes the domestic laws of the host state are applied, or payments are made ex gratia. Documentation regarding the practices of claims review boards is not usually publicly available but falls under temporal archival restrictions: see, in detail, Schmalenbach, Die Haftung internationaler Organisationen (2004), 32–3, 411ff. Local claims review boards have been criticized because ‘the power held by the United Nations as adjudicator of the claim is incompatible with a fair process given its status as one of the parties to the dispute’: Dannebaum, ‘Translating the Standard of Effective Control into a System of Effective Accountability’ (2010) 51 Harv ILJ 113, 126. The same author notes that the UN is given discretion as to when it establishes claims review boards, leaving applicants without remedy if none is in place (ibid, at 127). The lack of alternative mechanisms of judicial redress in relation to the allegedly wrongful acts and omissions of the United Nations Protection Force (UNPROFOR) soldiers in Srebrencia was central to the case of Stichting Mothers of Srebrenica and Others v The Netherlands App no 65542/12 (ECHR, 11 June 2013). In general, see further Shraga, ‘UN Peacekeeping Operations: Applicability of International Humanitarian Law and Responsibility for Operations Related Damage’ (2000) 94 AJIL 406. The lack of a remedy against the UN was also a central element in the cases relating the 2010 cholera outbreak in Haiti, n 101, where the claimants (unsuccessfully) argued that (i) the creation of an appropriate dispute-resolution mechanism was a condition for the UN’s immunity under the General Convention; and (ii) that the UN had materially

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breached the General Convention by failing to fulfill its obligations under s 29 of the Convention. 103

  See ch 15, ‘The United Nations Secretariat and Secretary-General’, section 2.13, ‘Internal justice’. 104

  For example, in respect of personal injuries incurred on UN premises, or caused by vehicles operated by the UN, claims have for the most part been met by means of insurance coverage. Where such coverage did not exist, the claims were met by agreement following discussions between the UN and the injured party. See UN Privileges and Immunities Study (1967), n 7, 217, para 44; Miller, ‘The Privileges and Immunities of United Nations Officials’ (2007) 4 Int Org L Rev 169, 196. 105

  Such claims are rarely made. However, Belgium (and other states) made claims against the UN with respect to injuries suffered by Belgian nationals at the hands of the United Nations Operation in Congo (ONUC). The UN agreed to make a lump sum payment of $1.5 million, though payment was made by off-setting the amount against unpaid Belgian assessed contributions to ONUC. See UN Privileges and Immunities Study (1967), n 7, 219– 20. However, states have no international law obligation to pass on these monies to the affected individuals. 106

  Referred to at n 101.

107

  In the case of claims arising out of UN operational programmes such as assistance carried out by UNICEF or UNDP, the UN agreement with the host state usually includes a clause by which the host state is responsible for claims brought by third parties against the programme or fund. 108

  See Art 6 of the European Convention on Human Rights (ECHR); Art 14 ICCPR. Although these provisions do not provide in terms for a right of access to the courts, they have been interpreted as according such a right. See The Golder Case, ECHR, Series A, No 18, 1975, para 36. See generally Reinisch, n 14, 278ff; International Law Association, Final Report on Accountability of International Organisations—Berlin Conference (2004), 41. 109

  For an early case in which the applicant challenged the immunity of the UN on the ground that this immunity would deny the right of access provided for in the ECHR and the Universal Declaration of Human Rights (UDHR), see M v UN and Belgium (1969) 69 ILR 139, at 143 (Court of Appeal, Brussels, Belgium). See also Beer and Regan v Germany and Waite and Kennedy v Germany App nos 26083/94 and 28934/95 (ECHR, 18 February 1999); and, more recently, Stichting Mothers of Srebrenica v The Netherlands App no 65542/12 (ECHR, 11 June 2013). 110

  See Beer and Regan v Germany; Waite and Kennedy v Germany, n 109. These cases arose out of an employment dispute between the European Space Agency (ESA, based in Germany) and persons claiming to have the status of employees of that international organization. The ECtHR held that a potential violation of Art 6(1) of the ECHR had to pursue a legitimate aim, and that there had to be a reasonable relationship of proportionality between the aim being pursued and the means employed. While the granting of immunity provided for in an international treaty was held to be a legitimate aim, the proportionality of the means employed to achieve that aim was held to depend on whether the applicants had adequate alternative means to pursue their rights. Because in that case such alternative means were held to exist, the immunity was held not to violate the right of access to a court. 111

  In Waite and Kennedy v Germany App no 26083/94 (ECHR, 18 February 1999), para 68, the Court established that ‘a material factor in determining whether granting ESA immunity from German jurisdiction is permissible under the Convention is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention’. See further Gaillard and Pingel-Lenuzza, n 58. Waite and Kennedy was relied From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

on extensively in subsequent case law, see eg Lopez Cifuentes v Spain App no 18754/06 (ECHR, 7 July 2009), concerning an employment dispute between the International Olive Council and a former staff member, where the latter had had access to the Administrative Tribunal of the International Labour Organization. The Court found that Art 6 ECHR had not been violated. 112

  The Court noted that ‘As the applicants rightly point out, in Waite and Kennedy… as in Beer and Regan… the Court considered it a “material factor” in determining whether granting an international organisation immunity from domestic jurisdiction was permissible under the Convention whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention. In the present case there is no doubt that such an alternative means existed neither under Netherlands domestic law nor under the law of the United Nations…. It does not follow, however, that in the absence of an alternative remedy the recognition of immunity is ipso facto constitutive of a violation of the right of access to a court.’ Stichting Mothers of Srebrenica v The Netherlands, App no 65542/12 (ECHR, 11 June 2013), paras 163–4. 113

  UN Charter, Art 103. In Stichting Mothers of Srebrenica v the Netherlands, App no 65542/12 (ECHR, 11 June 2013), para 154, the Court held that ‘since operations established by United Nations Security Council Resolutions under Chapter VII of the United Nations Charter are fundamental to the mission of the United Nations to secure international peace and security, the Convention cannot be interpreted in a manner which would subject the acts and omissions of the Security Council to domestic jurisdiction without the accord of the United Nations’. The Netherlands’ ‘grant of immunity to the United Nations served a legitimate purpose and was not disproportionate’ (ibid, para 169). The ECtHR thereby confirmed the Dutch Supreme Court’s dictum that the ‘UN occupies a special place in the international legal community’ and that its immunity could not be balanced against human rights considerations: Mothers of Srebrenica Association and Others v The Netherlands, Case 10/04437, Supreme Court of the Netherlands, 2012, paras 4.3.4–4.3.6; de Boer, ‘Netherlands Judicial Decisions Involving Questions of Private International Law: Can the United Nations be Sued for Its Role in the Srebrenica Massacre?’ (2013) 60 Neth IL Rev 121, at 128; and, critically, Bonafè, ‘L’esistenza di rimedi alternativi ai fini del riconoscimento dell’immunità delle organizzazioni internazionali: la sentenza della Corte suprema olandese nel caso delle Madri di Srebrenica’ (2012) 95 Rivista di Diritto Internazionale 3, 826–9. Lastly, for the perspective of the legal representation of Mothers of Srebrenica, see Hagedorn, ‘Absolute immunität der Vereinten Nationen? Der Völkermord von Srebrenica als Lackmustest’ in Heutige bewaffnete Konflikte als Herausforderung an das humanitäre Völkerrecht (eds Heintze and Ipsen, 2001), 201–11. 114

  UN General Convention 1946, s 3; US/UN Headquarters Agreement, n 23, s 9; UN/ Switzerland Agreement, n 28, s 2. 115

  See [1976] UN Juridical YB 223.

116

  The obligation on states not to launch attacks on UN premises continues to apply during an armed conflict. The failure to respect the inviolability of UN premises in time of armed conflict may not be justified on grounds of military expediency. The principle regarding the continued application in time of armed conflict of privileges and immunities (including inviolability of premises) is stated explicitly in Arts 44 and 45 of the Vienna Convention on Diplomatic Relations, and in Arts 26 and 27 of the Vienna Convention on Consular Relations. It was highlighted by the ICJ in the Case concerning United States Diplomatic and Consular Staff in Tehran ICJ Rep 1980, p 1, 40. Similar considerations apply to privileges and immunities of the UN, and the treaties conferring such privileges and immunity continue to apply during an armed conflict. See Note to the Under-SecretaryGeneral of the Department of Peacekeeping Operations, United Nations, [2003] UN Juridical YB 521, 522, para 11, insisting that immunity of the UN prevented armed forces

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from insisting that occupants of a UN vehicle exit the vehicle for the purposes of ‘stop and search’ during armed conflict in Afghanistan; that the General Convention applied as much in circumstances of difficult security as in times of peace; and that the privileges and immunities for which it provides may not be qualified or overriden by demands of military expediency or security. See further Draft Articles of the International Law Commission on the Effect of Armed Conflict of Treaties in ‘Report of the International Law Commission on the work of its sixtieth session’, UN Doc A/63/10 (2008), Chapter V, 5 May–6 June and 7 July–8 August 2008; Art 3 on non-automatic termination of treaties during an armed conflict. For an incident in which damage was caused to UN premises as a result of attacks launched during an armed conflict, see Report of the United Nations Headquarters Board of Inquiry into Certain Incidents in the Gaza Strip between 27 December 2008 and 19 January 2009 (May 2009). Following negotiations with the UN, Israel agreed in January 2010 to pay compensation for the attacks, described in that report, which caused damage to UN premises. See also Summary by the Secretary-General of the Report of the United Nations Headquarters Board of Inquiry into Certain Incidents that Occurred in the Gaza Strip between 8 July 2014 and 26 August 2014, annexed to UN Doc S/286 (2015). See also Jachec-Neale, ‘Protection of UN Facilities During Israeli–Palestinian Hostilities: A Brief Assessment of the UN Board of Inquiry Findings’, EJIL:Talk!, 17 June 2015. 117

  On occasion, the UN has given permission for local authorities to enter the Headquarters District to perform police or other specific functions. For example, US security services have been permitted to enter the Headquarters District when Heads of State or other distinguished persons visit the UN, and local police have been allowed to enter other UN premises to investigate crimes committed there. At the UN Office at Geneva, local police have been asked on specific occasions to cooperate with UN security guards within UN premises, and competent Swiss authorities have been allowed to enter the grounds in order to conduct inquiries and report on traffic accidents. In Bangkok, the Office of Legal Affairs advised that it would be proper to allow the local police to conduct an investigation within the premises of the Economic Commission for Asia and the Far East (ECAFE) in the event of the possible theft of property on the premises, when authorized to do so by the Executive Secretary. The ECAFE Agreement now provides for this. Similar arrangements are in place with the Ethiopian authorities. See UN Privileges and Immunities Study (1967), n 7, 232 and 234, paras 109, 110, and 116. 118

  The UN maintains and exercises general police functions in its premises through its own security staff. 119

  This principle is recognized in s 7(b) of the US/UN Headquarters Agreement, n 23. US courts have exercised jurisdiction over crimes committed within the headquarters. See People of the State of New York v Coumatos (1962) 224 NYS 2d 207. The UN is under an obligation to ensure that the Headquarters District does not become a refuge for persons who are avoiding arrest under US law or attempting to avoid service of legal process (US/ UN Headquarters Agreement, n 23, s 9(b)). However, it has been argued that the UN can afford asylum to its own officials who are sought by local officials in breach of the immunities of the organization and its officials. See Sands and Klein (eds), n 34, §15–055; Jenks, n 56, 51–2. 120

  US/UN Headquarters Agreement, n 23, s 8: ‘The United Nations shall have the power to make regulations operative within the Headquarters District, for the purpose of establishing therein conditions in all respects necessary for the full execution of its functions.’ Similar provisions are found in other UN host state agreements, eg, ss 7(b) and 8 of the 1967 Agreement between the UN and Austria regarding the Headquarters of

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UNIDO, 600 UNTS 93; ss 7(b) and 8 of the 1975 Agreement between the UN and Kenya regarding the Headquarters of UNEP, 962 UNTS 89. 121

  See n 107.

122

  See ss 7(d) and 8 of the US/UN Headquarters Agreement. Under GA Res 481(V) (1950), headquarters regulations are proposed by the Secretary-General and normally require the approval of the General Assembly. However, the Secretary-General may give immediate effect to a regulation if he/she considers this to be necessary. By GA Res 604(VI) (1952), the Assembly approved the first three headquarters regulations (establishing the UN’s own social security system, and permitting the Secretary-General to establish the qualifications and requirements for the performance of professional and other special occupational services—eg, medical and legal—within the Headquarters District). The fourth regulation was approved by GA Res 41/210 (1986). It limits the compensation payable by the UN with respect to torts committed within the Headquarters District. See Szasz, ‘The United Nations Legislates to Limit its Liability’ (1987) 81 AJIL 739. 123

  This obligation is expressly contained in the US/UN Headquarters Agreement, n 23, s 16, and some other host state agreements (eg, Agreement regarding Economic Commission for Asia and the Far East, s 5(a); Agreement regarding Economic Commission for Africa, s 4(a); UNICEF’s Model Basic Cooperation Agreement, UN Doc E/ICEF/BCA, July 1992, Art X(3)). 124

  The exemption from search bars national authorities from verifying the contents of UN property, but does not preclude external visual inspection. See Note to the Under-SecretaryGeneral, n 116, advising that coalition forces in Afghanistan are precluded from searching vehicles belonging to the UN Assistance Mission in Afghanistan (UNAMA) but that UNAMA has obligation to cooperate with observance of police regulations. 125

  UN General Convention 1946, s 3.

126

  The immunity also extends to prevent a garnishee order in respect of the salary of a staff member. Until the salary is paid, the funds in question are assets of the UN. See the Menon case, n 77; Means v Means, n 78. See also Legal Opinion to UNIDO, [1968] UN Juridical YB 215, fn 74. 127

  UN General Convention, s 4. The term ‘archives’ is defined in some UN agreements as including ‘records, correspondence, documents, manuscripts, photographs, cinematograph films and sound recordings’: see s 1(g) of headquarters agreements with respect to the Economic Commission for Latin America and the Caribbean, and to the Economic Commission for Africa. 128

  Shearson Lehman Brothers v International Tin Council (intervener) (No 2) (1987) 77 ILR 107 (HL). 129

  See Keeney v United States, 218 F 3d 843 (DC Cir, US, 1954).

130

  See UN General Convention, s 4.

131

  In Shearson Lehman Brothers v International Tin Council (intervener) (No 2), n 128, it was held that once a document had been communicated by an international organization to a member state or third party, even for a limited purpose such as a meeting, it ceased to belong to the organization and was no longer protected by the obligation to respect inviolability. 132

  Higgins, n 34, 93; Amerasinghe, n 34, 334.

133

  Amerasinghe, n 34, 334.

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134

  UN General Convention 1946, Art 2, s 5.

135

  See, eg, Art VIII(7) of the Model UNHCR [United Nations High Commissioner for Refugees] Cooperation Agreement, UNHCR/IOM/79/89, June 1989; s 23 of the Model UN Status of Forces Agreement, UN Doc A/45/594, 9 October 1990. See also Art X(1)(e) of UNDP’s Standard Basic Assistance Agreement and the UN’s Administrative Instructions concerning agreements on UN Conferences, UN Doc ST/AI/342 (1987). It should be noted that the agreements concluded on the basis of these models contain variations of the provisions in the models. See UN RP Supp no 7 (1985–88) vol VII, Arts 104 and 105, pp 192–4, for details of arbitration proceedings (invoked but subsequently abandoned) between the UN and Somalia, regarding Somalia’s failure to respect this obligation. 136

  UN General Convention 1946, s 7(a). However, s 5 of the UN/Switzerland Agreement, n 28 exempts the UN from direct and indirect taxes. 137

  UN General Convention 1946, s 7(a). The term ‘charges for public utility services’ is not defined in the General Convention. However, s 17 of the US/UN Headquarters Agreement, n 23, provides that the UN’s premises are to be supplied ‘on equitable terms with the necessary public services, including electricity, water, gas, post, telephone, telegraph, transportation, drainage, collection of refuse, fire protection, snow removal, etcetera’. This provides an indicative (but not exhaustive) list of public services. The UN has asserted that the term ‘public utility services’ in the UN General Convention is much narrower than the term ‘public services’, arguing that ‘[i]t has a ‘restricted connotation’, applying to ‘particular supplies or services rendered by a government or corporation under government regulation, for which charges are made at fixed rate according to the amount of supplies furnished or services rendered’ ([1973] UN Juridical YB 133). However, it is difficult to see a difference. The general notion is that of services provided to the general public, either by a government body or by a private body under government supervision. See also para 16.43. 138

  The UN Office of Legal Affairs has issued numerous memos considering whether charges imposed on the UN amount to direct taxes. The following have been considered a direct tax: tax imposed on services for maintenance and repair of real property to which the UN holds title; value-added tax on circulation or ‘road taxes’; mandatory employment injury contributions and contributions under the state’s national pension scheme; wharfage charges levied on UN consignments; taxes imposed on the UN Joint Staff Pension Fund in a member state; and royalty payments claimed against total prices of a contract. However, taxes levied by member states on goods and services, including imported goods and services such as UN publications, will be indirect. Articles designed for sale in the UNICEF Greeting Card Operation are usually exempt from taxes, custom duties, and import restrictions, these being generally recognized as inappropriate. See, eg, UN RP Supp no 8 (1989–94) vol VI, Arts 104 and 105, paras 81–104. See also UN Privileges and Immunities Study (1967), n 7, 241ff, for a report considering the justification for tax exemptions in respect of direct and indirect taxes. Other examples of direct tax from which the UN has been considered exempt include: the imposition of stock transfer tax; the imposition of withholding taxes on cash dividends paid on securities forming part of the assets of the UN Joint Staff Pensions Fund; and hotel charges. Increases in rent resulting from increases in real estate taxes payable by landlords of premises leased by the UN will not be exempt. Title to a leasehold will be considered personal property rather than real property, and so not exempt from taxes charged (UN Privileges and Immunities Study (1985), n 87, 163ff). 139

  See UN Privileges and Immunities Study (1967), n 7, 244, para 159: ‘The Convention was drawn up for application in all Member States of the United Nations and its terms were conceived and have to be applied uniformly in all countries in accordance with their generally understood reference to its nature and to its incidence…. In respect to a

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Convention intended for application in all Member States, its interpretation cannot be made to depend upon the technical meaning of a term in varying tax systems of each Member.’ 140

  This is a principle that has been consistently asserted by the UN. In the context of tax on circulation with respect to official vehicles, Legal Counsel wrote: ‘[S]ince the tax on circulation is levied directly upon the United Nations, it is, within the meaning of the Convention, a “direct tax” and the United Nations should be accorded exemption from it.’ See UN Privileges and Immunities Study (1967), n 7, 244, para 159. The Office of Legal Affairs has taken the position that direct taxes within the meaning of s 7(a) of the General Convention are those that constitute a direct burden on the UN. The nature and effect of the tax are accordingly the primary considerations in determining whether the tax is direct or indirect (UN RP Supp no 8 (1989–94) vol VI, Arts 104 and 105, para 81). The principle has also been accepted by some domestic courts. See opinion of the Syrian Council of State, [1962] UN Juridical YB 291, where a construction licence fee was accepted by the Syrian Council of State as constituting direct tax, from which the UN Relief and Works Agency for Palestinian Refugees was therefore exempt. The following taxes have been held to be direct taxes from which the UN is exempt: road taxes, stock transfer taxes, transport taxes such as taxes on airline tickets, hotel taxes, and taxes on the occupation of property. See, eg, UN RP Supp no 8 (1989–94) vol VI, Arts 104 and 105, paras 81–104; UN Privileges and Immunities Study (1967), n 7, 241ff; UN Privileges and Immunities Study (1985), n 87, 163ff. However, exemption from direct property taxes does not relieve the UN from paying the increase in rent on leased property, where the increase arises from an increase in property taxes payable by the landlord in respect of the leased property. In such a case, the amount payable by the UN is not a tax but rather a private law obligation owed to another party. The amount is not even to be considered an indirect tax where the landlord is not obliged to pass on the tax to the tenant. Likewise, where the UN undertakes by contract with a landlord an obligation to pay property taxes that would otherwise fall on the landlord, this is not a direct tax but a private law obligation. See UN Privileges and Immunities Study (1985), n 87, 164. 141

  See UN Privileges and Immunities Study (1967), n 7, 244, para 159: ‘The terms of the Convention must be applied uniformly in all countries in accordance with their generally understood reference to its nature and its incidence, that is to say, according to upon whom the burden of payment directly falls.’ See also UN General Convention, s 8. 142

  See UN Privileges and Immunities Study (1967), n 7, 247–8: ‘The authorities in international law generally seem to make a distinction as to whether the services rendered by a municipality or other public agency are special ones for which a special charge is made, with definite rates payable by the individual in his character as a consumer and not as a general taxpayer according to fixed principles of real property taxation…. The term “public utility” has a restricted connotation applying to particular supplies or services rendered by a government or a corporation under government regulation for which charges are made at a fixed rate according to the amount of supplies furnished or services rendered.’ See also UN Privileges and Immunities Study (1985), n 87, 165. According to the UN, the charges ‘must be for services that can be specifically identified, described, itemized and calculated according to some predetermined unit’. 143

  It is not uncommon even for commercial entities to charge a fee for provision of services on the basis of a flat fee. This is particularly common in the telecommunications industry, where line rental or other user charges are based on a flat fee or other package fee that is not linked to usage by the consumer. 144

  UN General Convention 1946, s 8.

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145

  UN General Convention 1946, s 8. Whether a purchase is important is determined by reference to the quantity of goods bought (or the fact that they are bought regularly), as well by reference to the fact that a large amount is paid for such goods. See Memorandum of the UN’s Office of Legal Affairs 1953, quoted in UN Privileges and Immunities Study (1967), n 7, 258: ‘Purchases may be said to be important when they are made on a recurring basis or involve considerable quantities of goods, commodities or materials. Moreover, any item in question may well constitute an “important” purchase where the expenditure to be made is considerable.’ Weight will be attached to the intent of the General Assembly. Taxes paid on aviation fuel by a peacekeeping operation will normally be considered indirect; however, they are ‘important purchases’, being of operational necessity. Purchases of petrol will be treated in a similar manner. Early in the UN’s history, a number of countries set a minimum value for a purchase to be considered important. For example, in Switzerland, a purchase was regarded as ‘important’ if the total purchase price was over 100 Swiss francs; and in the case of the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the United Nations Information Centre in Paris, the minimum value was set at 250 francs. In the case of the International Atomic Energy Association (IAEA) and UNIDO, the minimum has been 20,000 Austrian schillings, although there were negotiations with the Austrian authorities to lower it to 1,000 schillings. Memorandum of the UN’s Office of Legal Affairs 1953, quoted in UN Privileges and Immunities Study (1967), n 7, para 211; and UN Privileges and Immunities Study (1985), n 87, 168. 146

  UN General Convention 1946, s 7(b).

147

  The necessity of the customs exemption for the UN arises from the recognition that, first, any special charge upon the resources of the organization or a subsidiary organ is a burden reducing its ability to carry out its international function; and, second, that other member states contributing to the budget of the programme will have the strongest grounds to complain, since the payment of customs merely constitutes an indirect payment by the other member states into the treasury of a single state, to the detriment of the programme and their own resources. See Letter from UN Office of Legal Affairs to the Legal Adviser UNRWA, quoted in UN Privileges and Immunities Study (1967), n 7, 249. By GA Res 64/89 (2010), para 16, the Assembly has urged Israel to cease its obstruction (arising out its blockade of Gaza) of the import by UNRWA of necessary construction materials. 148

  A decree adopted in a member state providing that foreign missions and international organizations were not exempt from rules of prohibition of import and boycott, was considered contrary to s 3 of the UN General Convention. Such restrictions would ‘obviously deny to the United Nations the facility to obtain for the official purposes of UNTSO vehicles and equipment under the most favourable contractual terms’. See UN Privileges and Immunities Study (1985), n 87, 166. 149

  UN General Convention 1946, s 7(b) (second sentence). The second sentence of s 7(b) is primarily directed at items that have been used by the UN, which then wishes to dispose of them after it no longer has need of them. Where the material is imported specifically for sale by the UN, it is unlikely that the items will be considered to qualify as items for official use, and they will probably not be granted exemption from customs duty. The UN pays duty on items sold in its gift shop in the Headquarters District. Likewise, the US took the view that alcohol sold in the Delegates Lounge (as opposed to alcohol given out at receptions and other official functions) was not for official use and therefore subject to duty. This view accords with the decision in European Molecular Laboratory v Federal Republic of Germany

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(1990) 105 ILR 1 (Arbitral Tribunal), that activities in the canteen of an international organization were not deemed to be official and eligible for exemption from tax. 150

  Section 7(c) of the UN General Convention 1946 provides that the UN, its assets, income, and property shall be ‘exempt from customs duties and prohibitions and restrictions on imports and exports in respect of its publications’. Under the Agreement on the Importation of Educational, Scientific and Cultural Materials 1952, films, filmstrip, microfilms, sound recordings, and other materials of an educational, scientific, or cultural character are exempt from customs duties. 151

  UN General Convention 1946, s 7(b).

152

  The largest sale of UN publications is the annual sale of UNICEF cards. While most countries admit entry without the imposition of customs charges, some do impose duties on UNICEF with regard to those cards. See UN Privileges and Immunities Study (1967), n 7, 252–3. 153

  UN General Convention 1946, s 9.

154

  ibid. See IBRD and IMF v All America Cable and Radio, Inc (1953) 22 ILR 705 (US Fed Communications Commission). 155

  See UN Privileges and Immunities Study (1985), n 87, 169. When a new Convention was adopted in 1968 among Latin American states, Canada, and Spain, granting special franking privileges to the correspondence of the diplomatic missions of those countries, the UN claimed entitlement to the same privileges. 156

  UN General Convention 1946, s 10. The UN has asserted that the monitoring, by states, of phone calls made by UN officials would be contrary to this provision (UN News Centre, ‘If Reports that UN was Bugged Prove True Practice Must Stop’, 26 February 2004). This was in response to allegations made in 2004 that the intelligence services of a number of countries (US, UK, Russia, and France) monitored the telephone calls of senior UN officials, including the Secretary-General (see ‘UK “spied on UN’s Kofi Annan”’, 26 February 2004, at http://news.bbc.co.uk/1/hi/uk_politics/3488548.stm). Leaked cables from the US State Department further indicate that US diplomats were asked to provide personal details about the UN leadership, including passwords, credit card information, frequent-flyer membership, and biometric information. The UN Secretary-General’s spokesman pointed out in response that in accordance with the 1949 Convention, the property and assets of the UN ‘shall be immune from search, requisition, confiscation, expropriation and any other form of interference’ (see ‘US embassy cables: UN seeks answers from Washington’, 29 November 2010, at http://www.guardian.co.uk/world/2010/nov/29/un-reacts-us-embassycables; ‘US embassy cables: Washington calls for intelligence on top UN officials’, 28 November 2010, at http://www.guardian.co.uk/world/us-embassy-cables-documents/ 219058). The German newspaper Der Spiegel reported in 2013 that the US National Security Agency bugged the UN’s headquarters in New York, broke an encryption code in order to listen in to video conversations, and infiltrated the computer network. It reported that the the EU mission was particularly targeted: see ‘Neue NSA-Dokumente: USGeheimdienst hörte Zentrale der Vereinten Nationen ab’, 25 August 2013, at http:// www.spiegel.de/politik/ausland/nsa-hoerte-zentrale-der-vereinte-nationen-in-new-york-aba-918421.html. Such monitoring infringes on the right of the UN to ‘free communication’ and the obligation of states to keep inviolable the official correspondence of the UN. These obligations are provided for in Art 27 of the Vienna Convention on Diplomatic Relations, which s 10 of the

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General Convention adopts. See Kirgis, ‘Alleged Monitoring of United Nations Telephone Calls’, ASIL Insight, March 2004, at http://www.asil.org/insigh127.cfm. 157

  See US/UN Headquarters Agreement, n 23, s 4(a); and the UN/Switzerland Agreement, n 28. 158

  Art 93, UN Convention on the Law of the Sea 1982.

159

  UN Charter, Art 105(2).

160

  See section 2.2, ‘Functional necessity as the basis for the conferral of UN privileges and immunities’. 161

  Compare Arts 9(2) and 23(3), both of which provide for the number of ‘representatives’ that a member may have in the General Assembly or the Security Council. 162

  UN General Convention, s 16; UN/Switzerland Agreement, n 28, s 13.

163

  US/UN Headquarters Agreement, n 23, s 15. However, ‘in the case of Members whose governments are not recognized by the United States, such privileges and immunities need be extended to such representatives, or persons on the staffs of such representatives, only within the headquarters district, at their residences and offices outside the district, in transit between the district and such residences and offices and in transit on official business to or from foreign countries’. See also the UN Agreement with Ethiopia regarding the Headquarters of the Economic Commission for Africa. 164

  See Décision du Conseil fédéral Suisse concernant le statut juridique des délégations permanents auprès de l’Office européen des Nations Unies ainsi que d’autres Organisations internationals ayant leur siège en Suisse, 31 March 1948, in Legislative Texts and Treaty Provisions concerning the Legal Status, Privileges and Immunities of International Organizations, 1959 (UN Doc ST/Leg/Ser. B/10), 92. This practice continued after the entry into force of the Host State Act and the Host State Ordinance on 1 January 2008. Diplomatic status is generally accorded to the head of a representation and to members of its diplomatic staff in the strict sense: see Swiss Federal Department of Foreign Affairs, ‘Practical Manual of the regime of privileges and immunities and other facilities’, ‘Immunity of a person’, available at https://www.eda.admin.ch/missions/mission-onu-geneve/en/home/ manual-regime-privileges-and-immunities/introduction/manual-immunity/immunityperson.html. The text of the Host State Act and Ordinance is reproduced in [2008] UN Juridical YB 3. 165

  UN Privileges and Immunities Study (1967), n 7, 170, para 46. Despite the fact that there is no treaty obligation to do so, privileges and immunities are also extended by the US to members of the immediate family regularly resident with a representative (ibid, 171, para 52). 166

  GA Res 169 (II) (1947) recommends that the Secretary-General and US authorities be guided in this question by the list contained in s 16 of the UN General Convention. See text at para 16.52. 167

  See Sands and Klein (eds), n 34, §15-067, which conflates these two questions and assumes that the requirement of agreement for the conferral of diplomatic privileges and immunities means there is a requirement of approval for the person to be a member of the delegation in the first place. 168

  On which see, Art 4 of the Vienna Convention on Diplomatic Relations 1961; see also Denza, Diplomatic Law (4th edn, 2016), 38.

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169

  See Memorandum of UN Legal Counsel, UN Privileges and Immunities Study (1967), n 7, 165, para 17; [2010] UN Juridical YB 401, 402; El-Erian, ‘Vienna Convention on the Representation of States in their Relations to International Organizations of a Universal Character’ in Bernhardt (ed), n 14, vol IV, 1317, 1319. 170

  On which see, Art 9 of the Vienna Convention on Diplomatic Relations 1961; also Denza, n 168, 61, 73. 171

  See references in n 170. However, the US has argued that the provision in s 15 of the US/UN Headquarters Agreement that subjects the grant of diplomatic privileges and immunities to members of permanent missions to ‘corresponding conditions and obligations’, means that such persons can be found personae non gratae and made subject to recall. See UN Privileges and Immunities Study (1967), n 7, 178, para 97. 172

  On which see Art 8 of the Vienna Convention on Diplomatic Relations 1961; see also Denza, n 168, 58. 173

  Art 73 of the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character provides that the head and members of the mission should in principle be of the nationality of the sending state, and that persons having the nationality of the host state may not be appointed except with the consent of that state (which is presumed, failing objection, and which may be withdrawn at any time). A number of host states, including the US, have refused to grant diplomatic privileges and immunities to representatives on the ground that the person concerned possesses the nationality of that state. This has been objected to both by the UN and by the sending state. See Memorandum of UN Legal Counsel, UN Privileges and Immunities Study (1967), n 7, 175, paras 55, 82–4. However, a refusal to grant diplomatic privileges and immunities should be considered separately from the question whether the person concerned is to be regarded as a member of the mission. Switzerland does not grant diplomatic privileges and immunities to persons having its nationality who are appointed as permanent representatives of other states, but does grant functional privileges and immunities (ibid, 175, para 85). This position should be preferred. The UN has taken the view that it is not entitled to object to the appointment of a member of a mission who does not have the nationality of that state (ibid, 165, para 17). But it has also stated that the consent of the host state ‘would seem to be a necessary prerequisite’ for the appointment of a national of the host State. See UN RP Supp no 8 (1989–94) vol VI, Arts 104 and 105, para 132. Under s 15 of the UN General Convention, the privileges and immunities provided to representatives of states by virtue of that Convention do not apply between a representative and the authorities of a state of which he/she is a national. 174

  For example, if the individual in question is put on the list of a member state’s permanent mission for the purpose of enabling him/her to attain entry to the host state or to enjoy the status and facilities of a representative to the UN, this would justify representations by the UN organs to a Member State with regard to the composition of its mission. Memorandum of UN Legal Counsel, UN Privileges and Immunities Study (1967), n 7, 165, para 17. 175

  See Art 14 of the Vienna Convention on Representation of States. A rare case in which a host state called for reductions in the size of a mission was the US demand in 1986 that the collective size of the staff of the permanent missions of the USSR, Byelorussian SSR, and Ukranian SSR to the UN in New York should not exceed 170. See UN RP Supp no 7 (1985–88) vol VII, p 195, Arts 104 and 105, paras 53–6. 176

  UN General Convention 1946, s 11.

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177

  See US/UN Headquarters Agreement, n 23, s 15(2). See also the text at para 16.49. The usual protocol is that the mission notifies the Protocol and Liaison Section of the UN Secretariat of the names and rank of those persons it considers to be entitled to diplomatic privileges and immunities. The Secretariat communicates this to the US Mission and publishes the names in the list of all members of permanent missions (‘The Blue Book’, which is published twice a year, with weekly updates). See the UN’s Manual of Protocol, UN Doc ST/SG/4/Rev.7 (2005). Inclusion in this list alone does not result in the granting of diplomatic privileges and immunities by the US, but it does with respect to Switzerland and the Geneva office of the UN. See UN Privileges and Immunities Study (1967), n 7, 172, para 54. In the past the question has been raised as to whether diplomatic privileges and immunities granted by the US require agreement with respect to each individual member of the mission, or whether agreement as to the categories and rank of mission entitled to privileges and immunities suffices. In Santiesteban Casanova v Fitzpatrick 214 F Supp p 425 (US District Court SDNY, 1963) and in B v M, Switzerland, Federal Tribunal, 2 July 1959, US and Swiss courts have held that there needs to be agreement to accord privileges and immunities to each individual member of the mission. See UN Privileges and Immunities Study (1967), n 7, 172, para 59, and 176, para 89. The UN takes the view that no individual agreement is required (UN RP Supp no 3 (1959–66) vol 4, paras 68–9). Even if the US view were adopted, it must be recalled that in the interim period these persons are nevertheless entitled to functional immunity. The solution to this problem has been to reduce the length of time taken to obtain US approval, and the practice is for the US mission to grant approval within two weeks of being notified of the arrival of the member of the mission. See the UN’s Manual of Protocol, UN Doc ST/SG/4/Rev.7 (2005). 178

  See Sands and Klein (eds), n 34, §15-067.

179

  The US has on occasion argued that it can restrict diplomatic privileges and immunities that have already been granted, on a reciprocal basis and in response to restrictions placed on its diplomatic envoys in the state concerned. For example, the US argued in 1960 that the Chairman of the Council of Ministers of the USSR, who was attending the General Assembly session, should be confined to Manhattan Island. The US argument relies on the wording of s 15 of the US/UN Headquarters Agreement, n 23, which subjects the granting of diplomatic privileges and immunities to ‘corresponding conditions and obligations’. However, it is not at all clear that this phrase was intended to permit the introduction of reciprocity into the relations between the host state and member states. The question is whether the diplomatic immunity accorded is the same immunity that is granted to the diplomatic corps as a whole, or rather the immunity accorded to diplomatic envoys from that particular state. The former position appears to reflect the drafting history and is to be preferred (UN Privileges and Immunities Study (1967), n 7, 178, paras 94–7). The Swiss Law granting diplomatic privileges and immunities to permanent missions is similarly based on reciprocity (Décision du Conseil fédéral Suisse concernant le statut juridique des délégations permanents auprès de l’Office européen des Nations Unies ainsi que d’autres Organisations internationals ayant leur siège en Suisse, n 163, 92). By this Decision (and another of 20 May 1958), permanent missions to international organizations seated in Switzerland are accorded the same privileges and immunities as are granted to diplomatic missions. A distinction is drawn between different categories of entitled persons. Since 1 January 2008, this practice is continued in accordance with the Host State Act (Loi sur l’Etat hôte, 2007) and the Host State Ordinance (Ordonnance sur l’Etat hôte, 2007) (both reproduced in [2008] UN Juridical YB 3); see also Message du Conseil fédéral relatif à la Loi sur l’Etat hôte (2006). According to Art 25(4) of the Host State Ordinance, the Department of Foreign Affairs can make the grant of a permission to acquire land subject to

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reciprocity if the applicant is a foreign state that wants to acquire the land for the purpose of maintaining a diplomatic, consular, or permanent mission. However, the fact that Switzerland is not bound to grant privileges and immunities similar to those accorded to diplomats beyond what is provided for in the UN/Switzerland Agreement, n 28 means that there may be no breach of international law by a reciprocal restriction. 180

  UN General Convention, s 11(a).

181

  UN General Convention, s 11(a), (b), and (f).

182

  UN General Convention, s 11(a).

183

  UN General Convention, s 11(d).

184

  UN General Convention, s 11(c).

185

  UN General Convention, s 11(e).

186

  UN General Convention, s 11(g).

187

  In Tachiona v Mugabe, 386 F3d 205 (2nd Cir US, 2004), it was held that even temporary representatives are entitled to full diplomatic immunity as a result of Art 11(g) of the UN General Convention, with the result that there is immunity from suit even where the action does not relate to words spoken or written, or to acts done in their capacity as representative. 188

  Arts 29 and 31 of the Vienna Convention on Diplomatic Relations 1961. Under Art 31, the exceptions to immunity from civil and administrative jurisdiction relate only to: (a)  a real action relating to private immovable property situated in the territory of the receiving State, unless [the diplomatic agent] holds it on behalf of the sending State for the purposes of the mission; (b)  an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State; (c)  an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

189

  UN General Convention, s 11.

190

  That this is the case is confirmed by the wording of s 11 of the Convention. A broad interpretation must follow from the fact that the expression ‘while exercising their functions’ is contained in the opening paragraph and qualified by each of the privileges and immunities provided in the subparagraphs. These later privileges and immunities would become meaningless if they were applicable only when the representative was ‘actually doing something as a part of his function’. This broad interpretation is in accordance with the general principle that a treaty must be interpreted to effectuate its purpose and not to lead to absurdity. See UN Privileges and Immunities Study (1967), n 7, 176, para 87; the ‘only reasonable interpretation’ is the broad one, namely, to regard the words concerned as describing the whole period during which the person involved discharges his responsibilities ([1976] UN Juridical YB 224, 228; Tachiona v Mugabe, 386 F3d 205 (2nd Cir US, 2004)). 191

  UN General Convention, s 12; UN Privileges and Immunities Study (1967), n 7, 177, para 91.

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192

  UN General Convention, s 11; UN/Switzerland Agreement, n 28, s 9.

193

  UN General Convention, s 11(d).

194

  See the incidents noted at UN Privileges and Immunities Study (1967), n 7, 189, paras 165–8. The importance of this principle led to a change of venue of the sixteenth session of ECAFE, which had been arranged to take place in Karachi. This action was taken by the Secretary-General following the Government of Pakistan’s indication that it was not disposed to issue a visa to the representative of Israel to attend the meeting. The SecretaryGeneral also advised that a draft resolution inviting all African states to refuse to grant visas to representatives of South Africa and Portugal, so as to prevent them attending conferences and meetings, would be a violation of Art 105 of the Charter and contrary to the established principle of the UN based on the Charter principle of the sovereign equality of all its members. It appears that states are obliged to grant access and transit to the representatives of member states for the purpose of attending such meetings where this is necesary to gain access to the country in which the meeting is being held, though there is little practice in support of this. See also ‘UN Assembly chief barred from Europe travel: Libya’, 11 March 2010, at http://af.reuters.com/article/topNews/idAFJOE62A01220100311. In September 2013, the Sudanese Government applied for a visa that would have enabled President Omar al-Bashir, against whom two ICC arrest warrants were issued (on 4 March 2009 and on 12 July 2010), to attend the UN General Assembly in New York. Newspapers reported that ICC judges had called on the US authorities to arrest him. The visit was eventually cancelled: see ‘US is asked to hold Sudan leader if he visits UN’, New York Times, 18 September 2013; ‘Sudan’s President, wanted by International Court, cancels visit to UN’, New York Times, 25 September 2013, l. For analysis, see Akande, ‘Can the United States Deny Sudanese President Bashir a Visa to Attend the UN General Assembly or Arrest Him?’, EJIL:Talk!, 18 September 2013, at http://www.ejiltalk.org/can-the-united-states-denysudanese-president-bashir-a-visa-to-attend-the-un-general-assembly-or-arrest-him/. 195

  US/UN Headquarters Agreement, n 23, s 11.

196

  UN General Convention, s 14.

197

  US/UN Headquarters Agreement, n 23, s 13.

198

  For examples of requests for departure made by the Governments of Austria and the US, see UN RP Supp no 8 (1989–94) vol VI, Arts 104 and 105, paras 135–6. The procedure to be followed when a state requests the departure from its territory of a representative should be applied mutatis mutandis, in the case of the closure of a permanent mission at the request of the host country in the absence of detailed regulation of such a procedure in legal instruments. For a case in which Switzerland requested a member of the permanent mission of the Commonwealth of Dominica to the UN Office to leave, see Case 130 III 430, Swiss Federal Tribunal, 2004. The Tribunal held that Switzerland was under an obligation to consult with both the sending state and the UN, and to provide a legitimate reason before withdrawing the diplomatic immunity of a member of a permanent mission and requiring him/her to leave. To the extent that it involved a ‘trilateral’ consultation, the procedure was different from the one under Art 9 of the Vienna Convention on Diplomatic Relations. 199

  UN General Convention, s 13; US/UN Headquarters Agreement, n 23, s 15.

200

  In 767 Third Avenue Associates v Permanent Mission of the Republic of Zaire to the UN, (1995) 99 ILR 194 (US 1992), a US court rejected the argument of the US Government regarding the inviolability of premises of a permanent mission, and issued a decision permitting US marshals to evict the mission from its premises for non-payment of rent. The decision was reversed on appeal, 988 F 2d 295 (2nd Cir 1994). The appellate court applied

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the provisions of the Vienna Convention on Diplomatic Relations, without explaining why they were applicable. 201

  The Vienna Convention on the Representation of States explicitly provides for the inviolability and exemption from taxation of the premises of the mission and the residence of diplomatic staff. See Arts 23, 24, 29, and 33. 202

  This has been generally recognized, principally in relation to hostile demonstrations outside mission premises, and reference has been made to Art 105 of the Charter when demonstrations have placed difficulties in the way of performance of the functions of the mission. The Secretary-General has also suggested to the US the implementation of legislation prohibiting such demonstrations within a certain distance of a building or premises used by foreign government representatives (UN Privileges and Immunities Study (1967), n 7, 187). Reliance on Art 105 has also been made in the context of a move to evict a mission from its premises as a result of the mission’s indebtedness (UN RP Supp no 8 (1989–94) vol VI, Arts 104 and 105, para 152). 203

  UN Privileges and Immunities Study (1967), n 7, 183–5. In the US, resident representatives are granted privileges and immunities equal to those granted to diplomatic envoys accredited to the US Government. In the US, therefore, the immunity from taxation of member states is dependent on the terms of Art 105 of the Charter, the position under general international law, and internal legislation. Income of foreign governments received from US investments and securities, and interest on bank deposits, is exempt from taxation. Legislation of the State of New York exempts from taxation real property of a foreign government that is a member of the UN, and which uses the property exclusively for the purposes of maintaining offices for such representatives. Initial geographical limitations have since been removed. However, the US has highlighted that this exemption is granted on the basis of treaties between the US and the government in question, and not on the basis of general international law, and as such, states occupying premises beyond geographical limits have no foundation for exemption. Such exemption will not apply to leaseholds taken by a mission, where they have undertaken to pay a portion of any increase in local real estate tax that may be assessed against the owner. In Switzerland, exemption from real property taxation is granted for premises owned by the sending state, or by the head of mission for the sending state, and used for official business or as the residence of the head of mission. 204

  This view was asserted by the UN and accepted by the US. See Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 ICJ Rep 1988, p 12. This case arose out of the attempts by the US to close the office of the observer mission of the Palestinian Liberation Organization (PLO) to the UN. Closure of the office was required by the new Anti-Terrorism Act of 1987. The US acknowledged that closure would violate the US’s obligations under the US/UN Headquarters Agreement, n 23. The ICJ decided that the US and the UN were under an obligation to enter into arbitration under s 21 of the US/UN Headquarters Agreement. Ultimately, a US court held that the inconsistency between the US domestic legislation and the treaty was to be resolved by not applying the legislation such that it would lead to a violation of the treaty. See USA v PLO 695 F Supp 1456 (SDNY, US, 1988). 205

  Papas v Francini, 119 NYS 2d 69 (Supreme Court, New York, 1953). See further ch 8, ‘Membership’, para 8.85. 206

  US/UN Headquarters Agreement, n 23, s 11. See Anti-Defamation League of B’nai B’rith v Kissinger, Civil Action no 74 C 1545 (EDNY, 1 November 1974).

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207

  US/UN Headquarters Agreement, s 13(a). In 1988, the US refused the request for a visa for Yasser Arafat, Chairman of the Executive Committee of the PLO. The refusal was based on the view that the host state, despite its obligations under ss 11–13 of the Headquarters Agreement, was entitled to refuse to permit the entry of persons who had violated international law or who were otherwise objectionable. This view was rejected by the UN and a majority of member states. See GA Res 43/48 (1988). The General Assembly decided to move the relevant session of the Assembly to Geneva in order to permit Mr Arafat to attend the session. See generally, Reisman, ‘The Arafat Visa Affair: Exceeding the Bounds of Host State Discretion’ (1989) 83 AJIL 519. 208

  See Art 100(1) of the UN Charter for the obligation of UN Member States and UN Staff to respect the independence of the international civil service. 209

  UN Charter, Art 105(2).

210

  While practically all of the treaties discussed in this chapter providing for privileges and immunities in connection with the UN make specific provision with respect to the privileges and immunities of officials, the US/UN Headquarters Agreement is silent on this issue. Therefore, until the US became a party (in 1970) to the UN General Convention, the immunities of UN officials in the US were regulated by Art 105 of the Charter, general international law, and national law (principally, s 7(b) of the International Organizations Act 1945). 211

  UN General Convention, s 17.

212

  The Secretary-General’s proposals were confirmed by the General Assembly in GA Res 76 (I) (1946). 213

  See Statement of UN Legal Counsel to the 5th Committee (1981), UN Privileges and Immunities Study (1985), n 87, 170–1, para 54. All staff members, regardless of rank, nationality or place of recruitment, whether professional or general service, are considered as officials of the organizations for the purposes of privileges and immunities, except those who are both locally recruited and paid at hourly rates. UN locally recruited staff such as clerks, secretaries, and drivers are in nearly every case paid in accordance with established salary or wage scales and not hourly rates, and they are therefore covered by the terms of GA Res 76 (I) (1946). In addition to officials who staff members, there are also officials other than Secretariat officials accorded immunity by reference to the General Convention. See, eg, judges and prosecutors and registrars of international criminal tribunals, discussed in section 5.7, ‘The different position of persons connected with judicial organs’. 214

  The Mazilu case, n 73, 195, para 51. Some states have entered reservations to Arts V and VI of the UN General Convention as regards their nationals. However, given that the essence of the obligations in the Convention is to be found in the Charter, it is doubtful whether these reservations release those states from the obligation to accord privileges and immunities to UN officials who are their nationals. 215

  See Letter to the Registrar of the Special Court for Sierra Leone, n 77; Note to the Assistant Secretary-General and Deputy to the Under-Secretary-General of the Office of Legal Affairs, United Nations, n 77; Interoffice Memorandum to the Officer in Charge, United Nations Framework Convention on Climate Change (UNFCCC) Secretariat, [2006] UN Juridical YB 447 (bodies established under the UNFCCC and the Kyoto Protocol on Climate Change are not UN organs, and experts and other individuals serving on such bodies are not entitled to privileges and immunities under the General Convention). 216

  See Art IX, UNDP Standard Basic Assistance Agreement, [1973] UN Juridical YB 25; Art VII, UNICEF Basic Cooperation Agreement, UN Doc E/ICEF/BCA; Arts VII–XV, Model UNHCR Cooperation Agreement, UNHCR/IOM/79/89. These agreements usually deny the privileges and immunities therein provided to persons performing services who are locally recruited nationals of the host state. However, individual agreements contain variations. For From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

examples of variations, see UN RP Supp no 8 (1989–94) vol VI, §2, Arts 104 and 105, paras 10, 13, and 18–21. An agreement with Cameroon in 1991 provided that the privileges and immunities described therein would not apply to persons ‘who reside permanently in the country’. An agreement with Sri Lanka in 1990 was accompanied by an exchange of letters documenting an understanding that the privileges and immunities concerning persons performing services would be applicable to non-governmental organizations (NGOs) and firms performing services on behalf of the UN Development Programme only when they were specifically performing such services. They would also not apply to Sri Lankan citizens employed locally by such firms. The agreement with Armenia establishing UN Interim Offices departed from the model usually followed, by specifying which immunities were for internationally recruited officials only. In the process of preparing and finalizing agreements with governments holding UN conferences, the main variation in the agreements concern immunity from legal process for local personnel provided by the host country for the duration of the conference. Agreements concluded with Colombia and Canada in 1991 and Germany in 1992 did not specifically grant local personnel provided by the government immunity from legal process for the duration of the conference. Two agreements concluded with Austria provided that local personnel provided by the Government, with the exception of those who were assigned to hourly rates, were to enjoy immunity from legal process in respect of words spoken or written and acts performed by them in their official capacity in connection with the meeting of the Committee. However such immunity would not apply in the case of accidents caused by any vehicle, vessel, or aircraft. Lastly, an agreement with Mexico specifically did not grant immunity from legal process to nationals employed for the purposes of the Workshop, and excluded Mexican nationals from functional immunities in connection with the Workshop (although this was removed by 1993). Members of the UN Volunteers are not considered to be staff members, and therefore are not entitled to privileges and immunities under the UN General Convention. Nonetheless, they will qualify for privileges and immunities under the agreement by which the host government receives assistance from the UNDP (which includes assistance from UN Volunteers) ([1991] UN Juridical YB 305 and [2009] UN Juridical YB 391 at 393), or where a SOFA so provides (see n 300). 217

  See section 8, ‘Privileges and immunities during peacekeeping operations’.

218

  UN General Convention, s 18.

219

  UN General Convention, s 19.

220

  For example, Art 16 of the 1946 UN/Switzerland Agreement, n 28, was amended, by exchange of letters, in 1963 to provide diplomatic privileges and immunities not only to the Secretary-General and Assistant Secretaries-General, but also to ‘officials in the categories which are specified by the Secretary-General or by the person authorized by him, and which are agreed to by the Swiss Federal Council’. See UN Privileges and Immunities Study (1967), n 7, 280, para 327. The practice in Switzerland is to grant all officials of the rank of P5 and above diplomatic privileges and immunities: see Swiss Federal Department of Foreign Affairs, Manual—Regime of Privileges and Immunities’ (2011). At UN Headquarters in New York, diplomatic privileges and immunities are granted to officials of the rank of D2 and above; at the ICJ in The Hague, they are granted to rank P2 and above; and at the International Criminal Tribunal for the Former Yugoslavia (ICTY), also located in The Hague, they are granted to rank P5 and above. In addition, ‘most of the headquarters agreements of the regional commissions contain provisions envisaging that officials of those commissions starting from a certain level enjoy the privileges and immunities accorded to diplomats’. See [1992] UN Juridical YB 481. For example, Art 7(3) of the 1979 Agreement relating to the headquarters of the UN Economic

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and Social Commission for Western Asia (ESCWA) provides for diplomatic privileges and immunities for officials of the Commission at P-4 level and above (ibid). 221

  Arts 29 and 31 of the Vienna Convention on Diplomatic Relations 1961. See further n 188. 222

  Art 30 of the Vienna Convention on Diplomatic Relations 1961.

223

  Compare Arts 34 and 36 of the Vienna Convention on Diplomatic Relations 1961 with s 18(b) and (g) of the UN General Convention 1946. 224

  Art 37(1), Vienna Convention on Diplomatic Relations 1961. Art 19 of the UN General Convention 1946 limits this principle to spouses and minor children. One issue that has aroused controversy is the vulnerable situation of domestic employees of persons enjoying diplomatic status. Switzerland has made efforts to address this problem: see Ordonnance sur les conditions d’entrée, de séjour et de travail des domestiques privés des personnes bénéficiaires de privilèges, d’immunités et de facilités (2011). The Ordinance provides for a minimum salary and introduces a requirement for a written work contract. See also OSCE Press Release, ‘Special Representative puts spotlight on trafficking for domestic servitude in diplomatic households’, June 2012, at http://www.osce.org/cthb/91502. 225

  Art 38(1) of the Vienna Convention on Diplomatic Relations 1961. See also Letter from the President of the International Court of Justice to the Minister for Foreign Affairs of the Netherlands, 26 June 1946, General Principles I and II. 226

  See UN Privileges and Immunities Study (1985), n 87, 175–7. A letter of 1971 on instruction of the Department of States of the United Nations argued in such terms that, on the basis of international practice, US nationals are not entitled to tax or customs privileges, or to immunity from civil or criminal process, except with respect to official acts. The UN Legal Counsel stated that such discrimination between US nationals and nonnationals was at variance with the plain meaning of the wording of s 19 of the Convention, the travaux préparatoires also supporting such a conclusion. Moreover, an exclusion clause concerning nationals in Art 6 of the draft convention (which became Art 19 of the Convention) was intentionally deleted by the General Assembly, and s 15 contains an express exclusion on account of nationality. This suggests that where such a distinction was intended, it would be expressly provided for. Therefore, the UN Legal Counsel advised that the treatment provided for in s 19 was to be accorded to all persons, without distinction as to nationality. 227

  Ziegler, n 12, 2171, MN32.

228

  See UN Privileges and Immunities Study (1985), n 87, 175–7. See n 225.

229

  The original draft of what became s 19 of the UN General Convention included a clause that would have exempted states from according diplomatic privileges and immunities to their nationals. However, this clause was later deleted (see n 226). 230

  See UN General Convention, s 15.

231

  UN General Convention, s 18(a); 1946 UN/Switzerland Agreement, n 28, s 15(a). A state may not make a reservation to s 18 of the 1946 Convention denying any official of that state’s nationality the privileges and immunities therein provided: see [1963] UN Juridical YB 188ff. 232

  Where an employee of the UN is requested to be interrogated, it is important to establish whether the allegations relate to acts in connection with his/her work at the UN. Where the allegations relate to matters falling within the employee’s functions as a UN official, he/she will enjoy immunity in respect of the acts in question. Where false allegations are brought, apologies have been sought by the Secretary-General. Justification of interrogation and detention by reference to national security concerns will not affect the international obligation of states to ensure the immunity of the UN and its officials in From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

respect of official acts. See UN Privileges and Immunities Study (1967), n 7, 268–9; see also advice from UN Office of Legal Affairs to UNICEF that UNICEF staff members are immune from an obligation to testify before national commission of inquiry ([1991] UN Juridical YB 327). Under Art 16 of the Relationship Agreement between the ICC and the UN, where the Court requests the testimony of an official of the UN, the UN undertakes to cooperate with the Court and, if necessary, waive that person’s obligation of confidentiality. 233

  Each year the UN Secretary-General submits a report to the General Assembly on the respect for the privileges and immunities of the UN, which details the numbers of officials detained by member states. See, eg, UN Docs A/C.5/50/3; A/C.5/52/2; A/53/501. See also the General Assembly’s annual resolutions on this, eg, GA Res 45/280 (1990); GA Res 47/28 (1992); and GA Res 51/227 (1997). 234

  For example, in Westchester County v Ranollo, 67 NYS 2d 31 (1946), a US court was of the view that the UN Secretary-General’s chauffeur was not acting in the course of his duties when speeding, despite the fact he was driving the Secretary-General at the time. The UN took a contrary view. See generally Miller, n 104, 192ff, 197ff. 235

  For the UN’s concerns in this regard, see Letter from UN Office of Legal Affairs to Permanent Representative of the United States, [1976] UN Juridical YB 237, 238. If national courts could overrule the Secretary-General’s determination that an act was ‘official’, a mass of conflicting decisions would be inevitable, given the many countries in which the organization operates. In many cases it would be tantamount to a total denial of immunity. The procedures for settling disputes contained in the Convention should be followed, rather than a unilateral determination by a state. 236

  See Cumaraswamy, n 73, at 87, para 60.

237

  ibid, 87, para 61.

238

  ibid, 88, para 63.

239

  See Akande and Shah, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts’ (2010) 21 EJIL 815, 832; and Brzak v United Nations, ‘Memorandum of Law in Support of the Motion of the United Nations to Dismiss and to Intervene’ (US SDNY, 2 October 2007), 06-CV-03432 (RWS), 12–19. 240

  UN General Convention, s 18(b).

241

  UN General Convention, s 18(g).

242

  UN General Convention, s 20.

243

  The US adopted this position even prior to its accession to UN General Convention, and confirmed its position when it acceded to the Convention in 1970 by entering a reservation to the effect that ‘paragraph (b) of section 18 regarding immunity from taxation… shall not apply with respect to United States nationals and aliens admitted for permanent residence’. 244

  GA Res 239 (III) (1948).

245

  See GA Res 973 (X) (1955) and 1099 (XI) (1957).

246

  See ch 14, ‘The Financing of the United Nations’, section 5.1, ‘Income from staff assessment’. 247

  A party to the Convention is not entitled to make use of UN emoluments for any tax purposes. This has been upheld in the practice of UNESCO, and in jurisprudence of the Court of Justice of the European Union (CJEU, dealing with identically worded treaty provisions, see [1969] UN Juridical YB 226). The reasoning of the Court relied on the following: the literal meaning of the Convention; the purpose of immunity being the independence of the staff, their official salaries being intended to be wholly exempt from national jurisdiction; the independence and efficacy of the organization, as if official salaries were to be taken into account in setting taxes on non-exempt income, there might From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

be a serious deterrent to individuals considering service in the UN; and the fact that it would create serious inequity between international officials. The situation is different from that dealt with in double taxation arrangements, but is considered analogous to diplomatic immunities. See UN RP Supp no 8 (1989–94) vol VI, Arts 104 and 105, paras 186 and 190 (where the Swiss authorities intervened successfully to prevent cantons in Switzerland from taking exempt income into account for the purpose of calculating tax on non-exempt income). 248

  A number of states have sought to tax the salaries of their citizens who are employed by the UN and stationed in the home country, which has been met by protest from the UN. Following representations by the UN, tax authorities of the states concerned have generally given appropriate recognition to immunity from taxation. For examples of two letters sent to member states emphasizing the importance of immunity from income taxation on UN salaries and emoluments for officials, irrespective of nationality or rank, see UN Privileges and Immunities Study (1967), n 7, 272–3. Egyptian legislation requiring staff members of international organizations who were Egyptian nations to acquire work permits was considered by the UN as imposing a direct tax on emoluments, contrary to the Convention. The tax authorities of the Republic and Canton of Geneva, Switzerland, complied with a request by the UN to desist from applying a global-rate system to the taxable income of officials holding short-term contracts (thus taking into account the exempted income earned by such officials in determining the rate of tax on earnings derived from other sources). Zimbabwe also complied with such a request, as did Hungary. Sudan’s Ministry of Finance and Economic Planning decided to exempt all Sudanese working with the UN and affiliated bodies from payment of national contributions payable by Sudanese expatriates. Sudan had enacted legislation in 1981 imposing income tax on Sudanese nationals working abroad, including those working for the UN and specialized agencies, which was condemned by the UN via note verbale but received no response (UN RP Supp no 8 (1989–94) vol VI, Arts 104 and 105, paras 184–90). 249

  GA Res 76 (I) (1946).

250

  This position is usually accepted by members after intervention by the UN. See UN RP Supp no 8 (1989–94) vol VI, Arts 104 and 105, paras 184–8, as in the case of the Republic and Canton of Geneva, Switzerland, Zimbabwe, and Hungary. Where national tax authorities have insisted on taxing locally recruited staff, a reimbursement is made to the staff member from the Tax Equalization Fund. See UN Privileges and Immunities Study (1967), n 7, 273, para 292. 251

  See [1997] UN Juridical YB 444–5; [1998] UN Juridical YB 479–80; [2005] UN Juridical YB 439–40; [2008] UN Juridical YB 401–3, at 403. 252

  UN General Convention, s 18(c) and (d). See generally Miller, ‘The Privileges and Immunities of United Nations Officials’ (2007) Int Org L Rev 169, 207ff. Appendix C of the Staff Rules sets out a precise regime explaining when and how the Secretary-General will waive the immunity of an official to perform national service obligations; see Secretary’s Bulletin, Staff Rules, UN Doc ST/SGB/2016/1. Same-sex spouses can be recognized as dependents if the relationship is recognized by the state of nationality of the UN official; see Secretary-General’s Bulletin, ‘Personal Status for the Purposes of United Nations Entitlements’, (2004) UN Doc ST/SGB/2004/13/rev.1, 26 June 2014. 253

  See Wickremasinghe, n 65, 381.

254

  For a contrary view, see [1991] UN Juridical YB 329–30. This view considers that a distinction must be made between lump sums paid by the United Nations Joint Staff Pensions Fund when a retirement benefit is commuted, and the annual amount of the benefit as such. Lump sums are considered separation payments to officials, and consequently are exempted from taxes. In this limited sense of the term, ‘emoluments’ are

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considered to include pensions. Any tax on the annual pension is to be regulated by national legislation. 255

  Judges are to enjoy diplomatic privileges and immunities when engaged on the business of the Court; and agents, counsel, and advocates representing a party before the Court are to enjoy the privileges and immunities necessary for the independent exercise of their duties (Arts 19 and 42(3), ICJ Statute). 256

  GA Res 22 C(I) (1946). By that Resolution the General Assembly requested the members of the ICJ to consider the question of the privileges and immunities to which the Court ought to be entitled, and to make recommendations to the Secretary-General. After the Court had considered the matter, and the President entered into an exchange of letters with the Foreign Minister of the Netherlands (the host state), the General Assembly adopted GA Res 90(I) (1946), by which it approved the agreement with the Netherlands and also ‘recommend[ed]’ the privileges and immunities to which the judges, officials, and other persons connected with the Court were to be entitled in other countries. For these documents, see at http://www.icj-cij.org/documents/index.php?p1=4&p2=5&p3=3. See further ch 29, ‘The International Court of Justice’, section 4.6, ‘Special arrangements for the court regarding its protocol, standing privileges, and immunities’. Under the Exchange of Letters with the Netherlands, the judges of the ICJ and the Registrar are to be accorded the same treatment as the heads of diplomatic missions in the Netherlands; the Deputy-Registrar is to be accorded the same treatment as counsellors in diplomatic missions; and senior officials of the Court the same treatment as ‘secretaries’ attached to diplomatic missions. A 1971 letter from the Foreign Minister of the Netherlands to the President of the ICJ regarding the order of precedence of diplomats in the Netherlands, establishes that the President of the ICJ takes precedence over all diplomats, including the Dean of the Diplomatic Corp. Under GA Res 90 (I) (1946), officials of the Court on official business of the Court in any country have such privileges and immunities as are necessary for the independent exercise of their functions (including, in the case of the Registrar, or any person acting as such, diplomatic privileges and immunities). Also agents, counsel, and advocates before the Court have the privileges and immunities stated in Art IV of the General Convention (dealing with representatives of member states), while Assessors, witnesses, and persons performing missions on behalf of the Court have the privileges and immunities stated in Art VI (dealing with experts on mission). Although the provisions of GA Res 90 (I) are couched in terms of a recommendation, these ‘recommendations’ are binding on all states since they give effect to Art 105(3) of the UN Charter, by which the General Assembly may determine the details of the privileges and immunities provided for in Art 105(1) and (2) of the Charter. 257

  Art 30, Statute of the ICTY adopted pursuant to SC Res 827 (1993); Art 29, Statute of the ICTY, adopted pursuant to SC Res 955(1994); and Art 29 of the UN MICT, adopted pursuant to SC Res 1966 (2010). Under these provisions, the General Convention applies to the Tribunals, as well as the judges, Prosecutor, Registrar, and staff of the tribunals. In addition, it is provided for the ICTY and the International Criminal Tribunal for Rwanda (ICTR) that: the judges, Prosecutor and Registrar shall have the privileges and immunities accorded to diplomatic envoys under international law; the staff shall have the privileges and immunities under Arts V and VII of the General Convention; and other persons, including the accused, required at the seat of the Tribunals ‘shall be accorded such treatment as is necessary for the proper functioning of the International Tribunal’. With respect to the MICT, where judges remain on a roster until they are assigned to particular proceedings, it is provided that the President, the Prosecutor, and Registrar shall enjoy the privileges and immunities accorded to diplomatic envoys, but that the judges of the Mechanism are only to enjoy those same privileges and immunities ‘when engaged on the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

business of the Mechanism’. As with the temporal scope of the immunity of temporary representatives to the UN (see section 5.6, ‘Temporal scope of functional privileges and immunities accorded to officials’), the temporal scope of the immunity of MICT judges is not confined to circumstances when they are performing acts in connection with their work, but rather commences as soon as they are assigned to a case. Thus, MICT judges will be entitled to diplomatic privileges and immunities from the moment they are assigned to participate in particular proceedings at MICT. See Prosecutor v Ngirabatware, ‘Order to the Government of the Republic of Turkey For the Release of Judge Aydin Sefa Akay’, MICT-12-29-R, 31 January 2017; and Judge Theodor Meron, President, Mechanism for International Criminal Tribunals, Address to the UN General Assembly, 9 November 2016, and statements regarding the immunity of Judge Akay in SC/12614; SC 7829th Meeting, 8 December 2016. The UN has concluded headquarters agreements with the Netherlands and Tanzania regarding the ICTY and ICTR, which further specify (in terms similar to the General Convention) the privileges and immunities of persons connected with those Tribunals when present at the seat of those Tribunals. See [1994] UN Juridical YB 10 and [1995] UN Juridical YB 69. These agreements also provide immunity for witnesses, experts, and accused persons from legal process with respects to acts or convictions prior to their entry into the Netherlands or Tanzania. Such immunity ceases if the person remains in the Netherlands or Tanzania beyond a period of days after which his/her presence is no longer required by the Tribunal, or, in the case of an accused, after acquittal or release by the Tribunal. 258

  See Arts 9–13 of the Agreement annexed to UNSC Res 1757 (2007), which, however, only makes provision for privileges and immunity in Lebanon. 259

  UN General Convention, s 22. In 2002, the General Assembly adopted Regulations Governing the Status, Basic Rights and Duties of Officials other than Secretariat Officials, and Experts on Mission, General Assembly Resolution 56/280, 27 March 2002, reprinted in UN Doc ST/SGB/2002/9, 18 June 2002 (together with an Introduction and Commentary prepared by the Secretary-General). It could be argued that the term ‘official’ as used in the Charter includes ‘experts on mission’ as later used in the General Convention. For a discussion of this argument, see Worster, ‘Immunities of United Nations Peacekeepers in the Absence of a Status of Forces Agreement’ (2008) 47 Military Law and the Law of War Review 277, 324–5. 260

  UN General Convention, s 22(a) and (b).

261

  ibid, s 22(c) and (d).

262

  ibid, s 22(e).

263

  ibid, s 22(f).

264

  ibid, s 22(b).

265

  [1993] UN Juridical YB 410, 411; Miller, ‘United Nations Experts on Mission and their Privileges and Immunities’ (2007) 4 Int Org L Rev 11, 44. 266

  Experts on mission must be mandated by the UN directly: see [1993] UN Juridical YB 400–1 (with respect to internationally contracted personnel); and [2010] UN Juridicial YB 503, 504 (with respect to a group of researchers commissioned by a Special Rapporteur for the Human Rights Council). A representative of a member state’s permanent mission can, in certain circumstances, be accorded the status of an expert on mission simultaneously. With regard to member state representatives performing functions for the UN Joint Staff Pension Fund, the UN Office of Legal Affairs held that while ‘within the host country, they continue to enjoy the diplomatic immunities laid down in Article IV of the Convention in addition to

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those to which they are entitled as experts on mission’ ([1990] UN Juridical YB 295, 296). See generally Miller, n 265, 28ff. 267

  The Mazilu case, n 73, 194, para 50.

268

  ibid; Cumaraswamy, n 73, at 87, para 60. Members of treaty organs that are also considered organs of the UN are entitled to be treated as experts on mission for the UN: see the Mazilu case, n 73, para 48; and [1969] UN Juridical YB 207–8 (Legal Opinion on Treaty Organs). Note, however, that the term ‘expert on mission’ does not necessarily extend to persons who serve on treaty organs that are not UN organs; see Interoffice Memorandum to the Officer in Charge, United Nations Framework Convention on Climate Change (UNFCCC) Secretariat, [2006] UN Juridical YB 447 (bodies established under the UNFCCC and the Kyoto Protocol on Climate Change are not UN organs, and experts and other individuals serving on such bodies are not entitled to privileges and immunities under the General Convention). See generally, Miller, n 265, 22ff and 38ff. The mission must have been ‘entrusted’ to the person by the UN: see the Mazilu case, n 73, para 48. This means that personnel employed through a corporate contractor could not be considered experts on mission; see [1993] UN Juridical YB 400–01, referred to by Miller, n 265, 29. 269

  The Mazilu case, n 73, para 48. For a general discussion of the privileges and immunities of members of peacekeeping missions, see section 8, ‘Privileges and immunities during peacekeeping operations’. The categories of personnel of peacekeeping missions that are considered experts on mission are provided for in the relevant status of forces/ status of mission agreement with the host government. These will normally ‘include military observers, military liaison officers, military advisers, arms monitors, members of formed police units, seconded individual United Nations police and seconded corrections officers’ (‘Criminal Accountability of United Nations Officials and Experts on Mission: Report of the Secretary-General’, UN Doc A/63/260, 11 August 2008, para 65). The UN Model SOFA (UN Doc A/45/594, which is used as the basis for negotiations of individual SOFAs between the UN and host countries of peacekeeping operations) provides, at para 26, that ‘Military observers, United Nations civilian police and civilian personnel other than United Nations officials whose names are for the purpose notified to the Government by the Special Representative/Commander shall be considered as experts on mission within the meaning of article VI of the Convention.’ However, the categories are not exhaustive and have been extended to include, on occasion, military aircrew for support missions to UNPROFOR and guards for UN operations in Northern Iraq. See [1994] UN Juridical YB 438 and [2000] UN Juridical YB 5. See generally, Miller, n 265, 22ff and 38ff. The general military personnel of national contingents assigned to the military component of peacekeeping missions are not, under the UN Model SOFA, considered experts on missions. See Worster, n 259, 320ff. However, by para 27, they are entitled to privileges and immunities provided for in the UN Model SOFA. Nonetheless, under para 47(b) of the UN Model SOFA, military members of the military component of UN peacekeeping operations are subject to the exclusive criminal jurisdiction of the Troop Contributing Country. In cases where no SOFA has (or has yet) been concluded at the time of deployment of a peacekeeping mission, questions will arise as to whether the military members of the military component of that mission benefit from immunity from jurisdiction as provided for in the Charter or under the General Convention. For cases where missions were deployed before the negotiation of a SOFA, see Burke, Sexual Exploitation and Abuse by UN Military Contingents: Moving beyond the Current Status Quo and Responsibility under International Law (2014), 67, fn 20, with discussion of the legal position in ch 2. Although there are cases where it seems to have been accepted that military members of a peacekeeping mission are

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experts on mission for the UN, this early practice has tended not to have been consistently adopted by the UN. See also Worster, n 259, 330ff. A Group of Legal Experts, established by the Secretary-General, was tasked with examination of the difficulties involved in holding UN peacekeeping personnel and other UN staff and experts accountable for crimes committed during peacekeeping missions. It recommended that priority be given by the UN to facilitating the exercise of jurisdiction by host states, and that a Convention should be adopted to address jurisdictional and other issues. See UN Doc A/60/980, 16 August 2006. The matter was taken up in the 6th Committee of the UN General Assembly, which has adopted a number of resolutions encouraging states to take appropriate measures to ensure that crimes by UN officials and experts on mission do not go unpunished, ‘without prejudice to the privileges and immunities of such persons and the United Nations under international law’: see, eg, GA Res 71/134 (2016); GA Res 70/114 (2015); GA Res 69/114 (2014); 68/105 (2013). 270

  UN General Convention, s 22.

271

  The Mazilu case, n 73, para 52.

272

  ibid.

273

  The principle applies with respect to diplomats accredited to a government, but has no application with respect to UN staff or military observers, who are not accredited to a government but must serve as independent and impartial international officials responsible to the UN. See [1964] UN Juridical YB 261; Miller, n 252, 217–18. 274

  UN General Convention, s 21.

275

  UN General Convention, ss 20 and 23.

276

  ibid. In the case of the Secretary-General, it is the Security Council that has the right to waive immunity. Officials in question are not consulted, see generally Miller, n 252, 238ff. In general, the Secretary-General should inform the body that appointed the official of its decision, see [2007] UN Juridical YB 412–15. A well-known case in which the personal immunity of a high-ranking UN official was waived involved Mr Benon Sevan, former Executive Director of the Oil-for-Food Programme: see UN News Centre, ‘Acting on new Oilfor-Food report, Annan lifts official’s immunity, pledges further steps’, 8 August 2005, at http://www.un.org/apps/news/story.asp?NewsID=15336&Cr=iraq&Cr1=oil#.Umzi3yQ174h. Even in private matter disputes involving UN officals, the UN’s immunity may be affected. The UN for a long time saw orders of garnishment in matrimonial disputes as an infringment of its immunity: see Miller, n 252, 246. The procedure to be followed is now set out in Secretary-General’s Bulletin, ‘Family and Child Support Obligations of Staff Members’, (1999) UN Doc ST/SGB/1999/4, 20 May 1999, s 2. 277

  UN General Convention, s 29(b). Usually in such a case, the method of settlement offered by the UN has been discussion and correspondence with the government concerned, and the UN has on occasion taken disciplinary action against the offender. See generally UNGA, ‘Report of the Secretary-General on procedures in place for implementation of article VIII, Section 29, of the Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly on 13 February 1946’ (1995), UN Doc A/C.5/49/65, 24 April 1995, paras 30–2. Questions may be raised as to whether this alternative form of settlement is adequate to displace the right of access to a court that individuals have under human rights treaties. See discussion at n 102. 278

  UN General Convention, s 30. This procedure has been used once, in Cumaraswamy, n 236. However, in the Mazilu case, n 73, the ICJ was asked to give an Advisory Opinion on the applicability of the General Convention and s 30 was not utilized.

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279

  See n 289.

280

  Zwanenburg, Accountability of Peace Support Operations (2005), 35ff.

281

  However, it is not always the case that by the time a peacekeeping operation has been deployed, a SOFA has been concluded. No SOFA was concluded in the case of the United Nations Emergency Force II (UNEF II), and UN Secretary-General Waldheim stated that ‘[t]he force and its personnel should be granted all relevant privileges and immunities provided for by the Convention on the Privileges and Immunities of the United Nations’: UN Doc S/11052/Rev 1 4 lit b, referred to by Schmalenbach, Die Haftung internationaler Organisationen im Rahmen von Miliäreinsätzen und Teritorialverwaltungen (2004), 225. Secretary-General’s report subsequently became binding through UNSC Res 341 (1973), para 2. In the case of the United Nations Operation in Somalia I and II (UNOSOM I and II), the United Nations Unified Task Force (UNITAF), and during the first 20 years of the United Nations Interim Force in Lebanon (UNIFIL), no SOFA was concluded; see Worster, n 259, 279. For a list of missions deployed at a time when no SOFA had been concluded, see Burke, n 269. 282

  Burke, ‘Status of Forces Deployed on UN Peacekeeping Operations: Jurisdictional Immunity’ (2011) 16 JCSL 66. 283

  Fleck and Saalfeld, ‘Combining Efforts to Improve the Legal Status of UN PeaceKeeping Forces and their Effective Protection’ (1994) 1 International Peacekeeping 82, 83; see also De Brabandere, ‘Immunity of International Organizations in Post-conflict International Administrations’ (2010) 7 Int Org L Rev 79, 106–8. 284

  Burke, n 283, 94f.

285

  See, eg, UNSC Res 1244 (1999), establishing UNMIK, UN Doc S/RES/1244.

286

  See, eg, SC Res 1528 (2004) (United Nations Mission in Cote d’Ivoire (MINUCI)); SC Res 1178 (1998) (United Nations Peacekeeping Force in Cyprus (UNFICYP)); SC Res 1542 (2004) (United Nations Stabilization Mission in Haiti (MINUSTAH)); SC Res 1545 (2004) (the United Nations Operation in Burundi (ONUB)), all referred to by Burke, n 269, 98. See also Worster, n 259, 347f. This, of course, raises further questions regarding the powers of the UN Security Council to impose the terms of a treaty on member states. 287

  See Burke, n 283, 73f, 95; Worster, n 259, 283f.

288

  See ILC, Responsibility of international organizations, Comments and observations received from international organizations, UN Doc A/CN.4/637/Add.1 (2011), 10, para 2; 13, para 3. Also Model SOFA, n 32, para 15; UNFICYP SOFA (1964) 492 UNTS 58f, Art 23. 289

  Model SOFA, n 32, para 15; Exchange of Letters constituting an Agreement concerning the Status of the United Nations Emergency Force in Egypt (1957) 260 UNTS 61, 66, para 11 (‘Members of the Force shall be subject to the exclusive jurisdiction of their respective national States in respect of any criminal offences which may be committed by them in Egypt’); Burke, n 282, 69. 290

  See section 3.1, ‘Immunity from legal process’.

291

  Model SOFA, n 32, para 15; Burke, n 269, 87.

292

  Model SOFA, n 32, para 6.

293

  ibid, para 15a.

294

  ibid, para 15b.

295

  ibid, para 16.

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296

  ibid, para 17.

297

  See UNGA (51st session), Agenda Items 129 and 140a: Financing of the United Nations Protection Force, the United Nations Confidence Restoration Operation in Croatia, the United Nations Preventive Deployment Force and the United Nations Peace Forces headquarters , A/51/389, 1996, 4, paras 9–10. 298

  See ibid, 5, para 11. In practice, cases have been brought against peacekeeping operations for failure to compensate individuals for the use of their premises; see, eg, Case no 308/09, Milorad Rajovic v UNMIK, Human Rights Advisory Panel (2013); in relation to NATO-led KFOR forces, Ilaz Kasumaj v Greece App no 6974/05 (ECHR, 5 July, 2007). 299

  In 2011, a group of 5,000 Haitian petitioners initiated proceedings against the UN and MINUSTAH in relation to a cholera outbreak that was likely triggered by the import of the bacteria by Nepalese peacekeepers. The UN asserted its immunity and pointed out that the dispute was not of a ‘private law’ character in the sense of Art 29 of the Convention: see Boon, ‘The Haiti Cholera Case against the UN’, Opinio Juris, 26 October 2012, at http:// opiniojuris.org/2012/10/26/the-haiti-cholera-case-against-the-un/; and Boon, ‘UN Flatly Rejects Haiti Cholera Claim’, Opinio Juris, 22 February 2013, at http://opiniojuris.org/ 2013/02/22/un-flatly-rejects-haiti-cholera-claim/. The UN’s immunity in relation to the claims was subsequently affirmed: Delama Georges et al v the United Nations et al (2015) 84 F Supp 3d 246 (US DC SDNY); Delama Georges et al v the United Nations et al (2016) 834 F Supp 3d 88 (US Court of Appeals, 2nd Circuit). For the argument that the claims in this case (and similar cases) were indeed private law claims, see Boon, ‘The United Nations as Good Samaritan: Immunity and Responsibility’ (2016) 16 Chicago JIL 341. 300

  Model SOFA, n 32, para 24.

301

  Burke, n 269, 70.

302

  UN General Convention, s 20. The Secretary-General waived the immunity of MajorGeneral Romeo Dallaire, the former Force Commander of the United Nations Assistance Mission in Rwanda, for the purpose of giving testimony in The Prosecutor v Jean-Paul Akayesu: see ICTR update (1998), ICTR/UPD/005. 303

  See, eg, Agreement between the United Nations and the Supreme National Council of Cambodia on the Status of the United Nations Transitional Authority in Cambodia, 1992, para 23; The Status of Forces Agreement between the United Nations and the Government of the Republic of South Sudan concerning the United Nations Missions in South Sudan (‘SOFA’), 2011, para 27; UNGA, ‘A comprehensive strategy to eliminate future sexual exploitation and abuse in United Nations peacekeeping operations’ (hereinafter ‘Zeid Report’), UN Doc A/59/710, para A.36. 304

  Model SOFA, n 32, para 26.

305

  UNGA, ‘Criminal Accountability of United Nations Officials and Experts on Mission, Note by the Secretariat’, UN Doc A/62/329, paras 55, 62. 306

  See section 6.1, ‘The privileges and immunities accorded to experts’. The ICJ acknowledged in the Mazilu case, n 73, that experts on mission ‘have participated in certain peacekeeping forces’, 194, para 48. In the pleadings, the Secretary-General had referred to cases of military observers and members of the Force Commander’s staff, see Miller, n 265, 28. 307

  UN General Convention, s 22(a).

308

  The Secretary-General has waived the immunity to allow members of peacekeeping operations to testify as witnesses for the prosecution in domestic proceedings, see [2008] UN Juridical YB 405 at 46: ‘In considering whether a request for a waiver should be granted, and if so, whether any conditions should be applied to the waiver, the SecretaryGeneral considers whether the evidence or testimony to be provided by the witness would From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

prejudice the interests of the United Nations; specifically whether such evidence or testimony would: (i) endanger the safety or security of current or former personnel of the United Nations or otherwise prejudice the security or proper conduct of any operation or activity of the United Nations; (ii) violate a duty of confidentiality which the United Nations owes to a third party; or (iii) compromise the confidentiality which is necessary for the effective operation of the internal decision-making processes of the United Nations, or of future United Nations peacekeeping operations.’ As regards UN practice in relation to waivers of immunity for crimes committed by UN staff or experts on mission during peacekeeping operations, see the Zeid Report, n 303. The Report notes (at 6) that ‘the absence of a functioning judicial system in some peacekeeping locations means that it is not feasible to waive immunity in those jurisdictions. As a result, the prosecution of staff or experts on mission for crimes committed in such a State depends on whether the State of nationality of the suspect has conferred extraterritorial jurisdiction on its courts to take such action and whether it can, in the circumstances of the case, effectively take such action’. On waiver, see further UNGA, ‘Criminal Accountability of United Nations Officials and Experts on Mission: Report of the Secretary-General’, UN Doc A/63/260, 11 August 2008, paras 69–70. 309

  Model SOFA, n 32, Art 47a.

310

  See Zeid Report, n 303; UNGA, ‘Report of the Group of Legal Experts on Ensuring the Accountability of United Nations Staff and Experts on Mission with Respect to Criminal Acts Committed in Peacekeeping Operations’ (2006) UN Doc A/60/980, 16 August 2006 (hereinafter ‘Legal Experts Report’). The UN Secretary-General produces yearly reports on special measures for protection from sexual exploitation and abuse, as well as reports on the criminal accountability of UN officials and experts on missions. Those reports, other relevant documents, and statistics are available at the UN’s Conduct and Discipline website, at https://conduct.unmissions.org/. See generally, Odello, ‘Tackling Criminal Acts in Peacekeeping Operations: The Accountability of Peacekeepers’ (2010) 15 JCSL 2, 347; Verdirame, The UN and Human Rights (2011), 214ff. 311

  UNGA, ‘Report of the Secretary-General on Criminal Accountability of United Nations Officials and Experts on Mission’, UN Doc A/63/260 (2008), para 66. 312

  UNGA, ‘Criminal Accountability of United Nations Officials and Experts on Mission, Note by the Secretariat’, UN Doc A/62/329 (2007), paras 42–5. 313

  Zeid Report, n 303, para 67(b); Legal Experts Report, n 303, paras 22, 27.

314

  Between 6 December 2007 and 30 June 2008, the UN referred two cases involving UN officials and one case involving an expert on mission to the sending states. The allegations concerned sexual and procurement-related offences: see United Nations Secretary-General (UNSG), ‘Criminal accountability of United Nations officials and experts on mission, Report of the Secretary-General’, UN Doc A/63/260, 11 August 2008, paras 69–70. Between 1 July 2008 and 30 June 2009, the cases of five UN officials and three experts on mission were referred: see UN Doc A/64/183, 28 July 2009, paras 61–2. Between 1 July 2009 and 30 June 2010, cases involving five UN officials were referred: UN Doc A/65/185, 29 July 2010, paras 83–4. Between 1 July 2010 and 30 June 2011, six UN officials and two experts on mission were referred: UN Doc A/66/174, 25 July 2011, para 61. 315

  Model SOFA, n 32, paras 28, 46; see also UNEF I SOFA, para 11; ONUC SOFA, Art 29.

316

  Zeid Report, n 303, para A.40.

317

  [1993] UN Juridical YB 400–1; [1995] UN Juridical YB 407–8; [1998] UN Juridical YB 481–2, 381.

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318

  UN Secretariat, ‘Administrative Instructions—Consultants and Individual Contractors’, UN Doc ST/AI/7 (1999), paras 5.4 and 8.1; Zeid Report, n 303, para A.40; Miller, n 265, 32. 319

  See, eg, Agreement between the United Nations and the Government of Haiti concerning the Status of the United Nations Operation in Haiti (2004), Art 22, [2004] UN Juridical YB 33. 320

  Brown, ‘The Role of the United Nations in Peacekeeping and Truce-Monitoring’ (1994) 2 Revue Belge de Droit International 558, 574; Burke, n 269 above, 89. It should be pointed out that questions of attribution of conduct and questions of immunity must be distinguished. In accordance with draft Art 7 of the ILC Articles on the Responsibility of International Organizations (2011), conduct of a state organ placed at the disposal of an international organization is attributable to that organization if it exercises effective control over it. The privileges and immunities set out in the Model SOFA would apply to members of national contingents, irrespective of whether their conduct was effectively controlled by the UN or not. 321

  See Szasz and Ingadottir, ‘The UN and the ICC: The Immunity of the UN and its Officials, (2001) 14 LJIL 867, 870–2; see further Miller, n 265, 17, who notes that ‘the term “officials” may have already been intended, at least in some minds, to encompass a category wider than “officials” in the sense of staff members and office holders’. Contra: Burke, n 269, 87–8. This interpretation was further rejected by the Israeli District Court in Government of Israel v Papa Coli Ben Dista Saar (1979) UN Juridical YB 205, case referred to by Burke, n 269, 87. The District Court held (at 209) that ‘The members of the Force who are at the same time members of national contingents serving with the UNEF in Egypt are not entitled to the privileges and immunities from jurisdiction contained in the Charter of the United Nations, since,…they are not agents or officials of the Organization.’ 322

  See Burke, n 269, 87–91; Worster, n 259, 320–9.

323

  Model SOFA, n 32, paras 26, 27, 47b.

324

  See eg, in relation to UNOSOM II, the exchange of letters between the Government of Germany and the UN Secretary-General dated 6 October and 11 November 1993, referred to by Fleck and Saalfeld, n 283, 83: it provided that ‘for the purpose of carrying out their functions under the terms of this agreement, military and civilian personnel of the German Composite Force shall be regarded by the UN as “experts on mission” for the UN… and as such are to be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their assignment to UNOSOM II; including time spent on travel to or from the area’. In 1994, air crews of a contributing state that supplied support missions to UNPROFOR were accorded the status of experts on mission as well, see Miller, n 265, 31; see further Szasz and Ingadottir, n 321, 871. 325

  Model SOFA, n 32, para 47b.

326

  ibid, para 48. It appears that for some time, such assurances were no longer obtained in practice: see the Zeid Report, n 303, 6. An example of an earlier practice of such assurances can be found in the exchange of letters between the UN and Finland of 21 and 27 June 1957, 271 UNTS 135 at 138–40, para 7: ‘I should appreciate your assurance that the commander of the national contingent provided by your Government will be in a position to exercise the necessary disciplinary authority. I should also appreciate your assurance that your Government will be prepared to exercise jurisdiction with respect to any crime or offence which might be committed by a Member of such national contingent.’ The revised Model Memorandum of Understanding concluded between the UN and

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contributing nations takes up this point in Art 7(5) (2006, UN Doc A/61/494, 3 October 2006): Article 7 quinquiens Exercise of jurisdiction by the Government 1.  It is understood that, in accordance with the established principles and practices of United Nations peacekeeping, the military members of the national contingent provided by the Government are subject to the Government’s exclusive jurisdiction in respect of any crimes or offences that might be committed by them while they are assigned to the military component of [a UN peacekeeping mission]. It is further understood that this exclusive jurisdiction is based on the understanding that the Government will exercise such jurisdiction as might be necessary with respect to crimes or offences committed by members of the Government’s national contingent while they are so assigned. The Government assures the United Nations that it shall exercise such jurisdiction with respect to such crimes or offences. 2.  The Government further assures the United Nations that it shall exercise such disciplinary jurisdiction as might be necessary with respect to acts of misconduct committed by any members of the Government’s national contingent while they are assigned to the military component of [a UN peacekeeping mission] that do not amount to crimes or offences.

327

  Burke, n 269, 91.

328

  Zeid Report, n 303, 11, para 19; Art 7quater (3) of the UNGA ‘Revised Draft Model Memorandum of Understanding between the United Nations and [participating State] Contributing Resources to [the United Nations Peacekeeping Operation]’ (2006), A/61/494. See also the subsequent reports of the Secretary-General on special measures for protection from sexual exploitation and sexual abuse, UN Docs A/58/777 (2004); A/59/782 (2005); A/60/861 (2006); A/61/957 (2007); A/62/890 (2008); A/63/720 (2009); A/64/669 (2010); and A/65/742 (2011). 329

  Model SOFA, n 32, para 49 a and b.

330

  UNSC, ‘The rule of law and transitional justice in conflict and post-conflict societies— Report of the Secretary-General’, (2004) UN Doc S/2004/616, 23 August 2004, para 4, referred to by De Brabandere, n 283, 103. 331

  See ch 27, ‘Peacekeeping and Other Peace Operations’, section 7, ‘United Nations transitional administrations’. 332

  De Brabandere, n 283, 104.

333

  UNMIK Regulation 2000/46, s 3.2.

334

  Ombudsperson Institution in Kosovo, Special Report no 1 on the compatibility with recognized international standards of UNMIK Regulation No 2000/47 on the Status, Privileges and Immunities of KFOR and UNMIK and their Personnel in Kosovo (18 August 2000); see generally Werzer, ‘The UN Human Rights Obligations and Immunity: An Oxymoron Casting a Shadow on the Transitional Administrations in Kosovo and East Timor’ (2008) 77 Nordic JIL 105; De Brabandere, n 283, 101ff. 335

  Ombudsperson Institution, n 334, para 23.

336

  De Brabandere, n 283, 111–12.

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337

  Werzer, n 334, 136–7; De Brabandere, n 283, 117–18.

338

  See Szasz and Ingadottir, n 321; and Akande, ‘International Law Immunities and the International Criminal Court’ (2004) 98 AJIL 407, 429–30. 339

  The bar on such requests applies unless the Court can first obtain the cooperation of that third state for the waiver of the immunity (Art 98(1), ICC Statute). 340

  Art 98(1), emphasis added. See also Art 98(2), limited to agreements requiring the consent of a ‘sending state’, which provides: ‘The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.’ However, it is worth noting that this provision is wide enough to cover treaty provisions conferring immunity on the representatives of states to the UN, since it is the member state and not the organization that is usually empowered to waive the immunity. See, eg, UN General Convention, Art IV, s 14. 341

  See Triffterer, ‘Article 27’ in Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (3rd edn, eds Triffterer and Ambos, 2016). 342

  Szasz and Ingadottir, n 321, 881–2. On the relationship between Arts 27 and 98 of the ICC Statute, see Akande, n 338. 343

  See Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) ICJ Rep 1999, p 62, para 46; the Mazilu case, n 73, paras 51–2. See section 7, ‘Abuse, waiver, and settlement of disputes regarding privileges and immunities’. 344

  See, eg, UN General Convention, Art V, s 20 and Art VI, s 23.

345

  See Arts 16 and 19 of the 2004 Relationship Agreement. Notice should be taken of the difference in wording between the two provisions. With regard to the giving of testimony under Art 16, the UN undertakes ‘to cooperate with the Court and, if necessary and with due regard to its responsibilities and competence under the Charter and the Convention on the Privileges and Immunities of the United Nations and subject to its rules, shall waive that person’s obligation of confidentiality.’ However, under Art 19, dealing with the exercise of criminal jurisdiction, ‘the United Nations undertakes to cooperate fully with the Court and to take all necessary measures to allow the Court to exercise its jurisdiction, in particular by waiving any such privileges and immunities in accordance with the Convention on the Privileges and Immunities of the United Nations and the relevant rules of international law’. 346

  Art 73 of the ICC Statute is a provision that contains such an exemption. It provides that where the ICC requests a state party to provide a document or information that was disclosed to it in confidence by a state, intergovernmental organization, or international organization, the state shall seek the consent of the originator to disclose that document or information. If the originator refuses to consent to disclosure, the requested state shall inform the Court that it is unable to provide the document or information because of a preexisting obligation of confidentiality to the originator. 347

  See pt 9 of the ICC Statute, which provides obligations of cooperation for state parties.

348

  See Art 30 VCLT, dealing with conflicts of treaties.

349

  See Art 103 of the UN Charter. Furthermore, the contention that the UN has acted in breach of its Relationship Agreement with the UN in not waiving immunity will not relieve

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the requested state of its obligations under the Charter and applicable treaties. That breach would be a matter that arises between the UN and the ICC. 350

  In addition to the ICC/UN Relationship Agreement, under Art 87(6) of the ICC Statute, the Court is empowered to request cooperation and assistance from international organizations.

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Part 3 The United Nations: What it Does, 17 Improving Social Conditions Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): Sustainable development

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(p. 623) 17  Improving Social Conditions 1.  Introduction 17.01 2.  Social issues in the work of the principal organs of the UN 17.13 3.  UN Departments, Programmes, and Offices involved in social issues 17.37 4.  Institutional coordination of UN social action 17.56 DuBois, ‘New Directions in the Social Development Programme of the United Nations’ (1966) 9(3) International Social Work 21; Fomerand and Dijkzeul, ‘Coordinating Economic and Social Affairs’ in The Oxford Handbook on the United Nations (eds Daws and Wiess, 2008); Jolly, ‘Human Development’ in The Oxford Handbook on the United Nations (eds Daws and Wiess, 2008); Kotschnig, ‘The United Nations as an Instrument of Economic and Social Development’ (1968) 22(1) International Organization 16; Luck, ‘Principal Organs’ in, The Oxford Handbook on the United Nations (eds Daws and Weiss, 2008); Malinowski, ‘Centralization and Decentralization in the United Nations Economic and Social Activities’ (1962) 16(3) International Organization 521; McLaren, ‘The UN System and its Quixotic Quest for Coordination’ (1980) 34(1) International Organization 139; Nicol and Renninger, ‘The Restructuring of the United Nations Economic and Social System: Background and Analysis’ (1982) 4(1) Third World Quarterly 74; Rosenthal, ‘Economic and Social Council’ in The Oxford Handbook on the United Nations (eds Daws and Wiess, 2008); Stoll, ‘Article 55’ in The Charter of the United Nations: A Commentary (3rd edn, Simma et al (eds), 2012), 1541.

1.  Introduction 17.01  The concern of the UN with improving social conditions is expressed in the various parts of the Charter, including in the Preamble, which stresses that the peoples of the United Nations are ‘determined to promote social progress and better standards of life in larger freedom’.1 The centrality of social issues in the mission of the UN is reflected in Article 1 of the Charter, which lists as one of the Purposes of the UN ‘achiev[ing] international cooperation in solving international problems of [a] … (p. 624) social … character’.2 Chapter IX of the Charter deals with ‘International Economic and Social Cooperation’, and within that Chapter, Article 55 provides that the UN shall ‘promote: (a) higher standards of living, full employment and conditions of economic and social progress and development; [and] (b) solutions of international social, health and related problems’. These goals are not set out as isolated aims, but their achievement is stated to be ‘[w]ith a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations’.3 Thus, improving social conditions is seen not only as a goal in its own right, but also as related to the aim of achieving international peace.

1.1  Types of activities for the purpose of improving social conditions 17.02  In furtherance of the mandate to ‘promote’ the improvement of social conditions, the UN has undertaken a number of important activities. First, the UN has engaged in institutional development in this area, creating institutions and bodies that are intended to pursue this goal. Second, the UN has engaged in normative development, meaning that it has sought to build consensus for the creation/recognition of a set of norms, standards, and rules that are to be followed in this area, as well as seeking to promote and develop these

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norms over time. Third, the UN has engaged in operational activities intended to achieve practical outcomes that will improve social conditions around the world.4 17.03  Social concerns are included in the mandate of several of the principal organs of the UN, and as a result of these constitutional provisions, and the actual activities of the UN in this area, the task of improving social conditions has come to occupy a central place in the UN’s normative and institutional framework.5 In particular, the General Assembly and the Economic and Social Council (ECOSOC) are given explicit competences in the social field, including in areas such as education and health.6 In addition, social issues have been a constant subject in the work of the UN Secretary-General,7 as exemplified by the five-year action agenda adopted in 2012, which focuses, inter alia, on sustainable development, security, women, and youth.8 Even the UN Security Council has addressed a series of social concerns, to the extent that they could be linked to its primary responsibility for international peace and security.9 (p. 625) These concerns have included poverty, sustainable development, transitional justice, youth, and gender equality.10 17.04  A number of Departments of the Secretariat, as well as other UN bodies and Programmes, that are subsidiary organs of the principal organs, have been created to carry out work in the area of social affairs. Furthermore, the UN specialized agencies have considerable responsibility in this area, and the relationship agreements between those agencies and the UN set out a framework within which they will cooperate with the UN on these issues.11 17.05  Over the years, the UN has engaged in standard-setting and norm development, with the aim of achieving cooperation and encouraging state action with respect to the improvement of social conditions. These standards, goals, and norms have largely been embodied in a series of resolutions of the General Assembly dealing with particular topics, or have been contained in the declarations, agendas, or outcome documents adopted at important conferences and summits dedicated to social issues.12

1.2  The ‘social’ issues addressed by the UN 17.06  It would be difficult to provide a definition of the terms ‘social progress’ and ‘social problems’, as used in Article 55(a) and (b) of the UN Charter. Likewise, no exhaustive list can be prepared of the social matters that fall within the mandate of the UN as a result of those provisions. Clearly, there is significant overlap between the work of the UN with regard to improving social conditions and the work regarding improving economic conditions.13 Indeed, Article 55 of the Charter deals with both of these issues together, and no precise dividing line can be drawn between the two areas. For example, efforts towards the eradication of poverty could be regarded as work relating to improving economic wellbeing, but is also work concerned with improving social conditions. In broad terms, the work regarding the improvement of economic conditions can be regarded as all the work that addresses macroeconomic measures that may be taken for this purpose. On the other hand, work relating to social (p. 626) development tends to be work that has the purpose of addressing the specific situation of particular categories of individuals or groups within society.14 It has been suggested that social issues are those matters concerned with the ‘material and spiritual needs of individuals, their families and the communities in which they live’.15 17.07  There is also a close relationship between the work of the UN with regard to improving social conditions and the promotion and protection of human rights, another matter provided for in Article 55,16 since in large measure increased respect for human rights is part of the solution for social problems and should result in social progress.

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17.08  The social issues that have been taken up by the UN have been rather varied. An examination of the work of the Assembly and ECOSOC suggests that, over time, the key social issues or themes considered within the UN have included: the eradication of poverty; housing and human settlement; social integration; the ageing population; crime prevention; disability; health, including drug control; families; indigenous peoples; gender equality; and the position of the youth. 17.09  The work of the UN with regard to the social conditions has been treated, for the most part, as coming within the overarching goal of promoting development.17 While much of the focus of UN initiatives in the social sphere has mainly been to improve the various social problems faced by developing countries, development has also been used in the broader sense of general economic, social, or societal progress.18 The issues of economic and social development have also come to be linked, conceptually and in the work of the UN, with issues relating to the protection of the environment, under the umbrella of the concept of ‘sustainable development’.19 (p. 627) 17.10  The objectives of the UN with regard to the promotion of development were translated into a set of Millennium Development Goals (MDGs) agreed in 2000.20 Although many of the goals set by the MDGs were indeed met within the agreed time frame, with the MDG process being credited with providing a catalytic effect and accountability, the MDGs were not without their critics.21 In 2015, when the time period for the achievement of the MDGs was complete, the UN launched the Sustainable Development Goals (SDGs), to be achieved over a 15-year period.22

(p. 628) 1.3  Major summits and conferences 17.11  Over the years the UN has convened several major conferences and summits relevant to the issue of social development.23 These meetings have mainly been for the purpose of setting the global agenda, for particular periods of time, with regard to particular issues. The aim has been to use these major meetings as vehicles for providing a catalyst to international and national action. These meetings have also engaged in the development of norms through the adoption of significant outcome documents, declarations, or resolutions.24 17.12  Of particular relevance are the 1995,25 2000,26 and 2005 World Summits, as well as the Millennium Summit, the 2010 Summit on the Millennium Development Goals, and the 2013 Special Event towards achieving the Millennium Development Goals.27 The SDGs were the outcome of the 2015 Sustainable Development Summit.28

(p. 629) 2.  Social issues in the work of the principal organs of the UN 2.1  The General Assembly and social issues 17.13  As already indicated, one of the explicit responsibilities of the UN General Assembly is to initiate studies and make recommendations for the purpose of promoting international cooperation in the social, educational, and health fields.29 Apart from adopting the outcome documents of important conferences on social and related issues, the Assembly has been actively engaged in the development of norms and standards with regard to a wide range of social challenges. For this purpose, it has adopted a significant number of resolutions,30 in which the Assembly does some or all of the following: recalls or highlights important social goals or concerns; recommends a certain course of action for member states and even nonstate actors with respect to the achievement of these goals or the resolution of these concerns; requests specific tasks from other UN bodies, such as the making of reports, or

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the provision of financial or technical aid; and/or approves reports submitted by other UN bodies, such as the ECOSOC, functional commissions, or expert bodies. 17.14  Although social issues have been the subject of Assembly resolutions from its very first session in 1946, the specific themes with which the Assembly has dealt have varied over the years. The first Assembly resolutions dedicated to social issues were much more concerned with the realization of social surveys and institutional issues, such as the coordination between other UN bodies and their respective activities.31 As early as 1949, substantive social themes started to appear in Assembly resolutions, although not much space was dedicated to them in comparison to questions of peace and security and institutional matters. Gradually, social concerns became a much more frequent theme.32 In particular, resolutions have included the problems of slavery;33 indigenous peoples;34 social welfare;35 children36 and youth;37 land reform;38 housing;39 women;40 food and famine;41 employment;42 and education.43 From (p. 630) 1961, when the Assembly proclaimed the Decade of Development,44 development has come to be seen as the lens through which social issues are to be considered.45 More recent social concerns have included issues relating to gender;46 crime prevention;47 health;48 disabilities;49 and the social consequences of environmental problems.50

2.1.1  The Third Committee (Social, Humanitarian, and Cultural) of the General Assembly 17.15  Within the General Assembly, it is the Third Committee that addresses the social issues already discussed.51 About a dozen agenda items are assigned to the Committee each year,52 and each year the Committee adopts about 60 resolutions and decisions on various social issues.53 17.16  Over the years a significant part of the Third Committee’s work has been directed at the promotion and protection of human rights, with about half of the resolutions (p. 631) adopted by that Committee addressing human rights.54 The Third Committee receives the reports of the Human Rights Council (HRC),55 the human rights treaty bodies, and those of the human rights special procedures established by the Council or the Assembly. During its annual sessions, the Third Committee usually sets aside a significant amount of time to hear from and to interact with the special rapporteurs, independent experts, and chairs of Working Groups established by the HRC.56

2.2  The United Nations Economic and Social Council 17.17  ECOSOC is one of the six principal organs of the UN established by the UN Charter. It is the leading body in the UN system for coordination, policy review, policy dialogue, and recommendations on economic, social, and environmental issues.57 ECOSOC, together with a number of its functional and regional commissions, engages in work directed towards the improvement of social conditions.58 The following functional commissions, which are composed of members of ECOSOC, are of most relevance in this regard: •  Commission on Crime Prevention and Criminal Justice; •  Commission on Narcotic Drugs; •  Commission for Social Development; •  Commission on the Status of Women; and •  Commission on Population and Development.

2.2.1  ECOSOC functional commissions

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17.18  The Commission on Crime Prevention and Criminal Justice (CCPCJ) was established as one of ECOSOC’s functional commissions in 1992 at the request of the General Assembly.59 In terms of the CCPCJ’s contribution to the improvement of social conditions, the ECOSOC Resolution establishing the CCPCJ ‘emphasise[d] the direct relevance of crime prevention and criminal justice to sustained development, stability, security, democratic change and improved quality of life’.60 (p. 632) 17.19  The Commission on Narcotic Drugs was established in 1946,61 and has both an operational role and a role in norm development.62 The Commission strives to take a ‘people-centred approach to addressing the drug problem’, and stresse[s] the need to ensure non-discriminatory access to health, care and social services in prevention, primary care and treatment programmes; the need to provide specialized programmes tailored to vulnerable members of society with specific needs as well as the importance of addressing social exclusion as a possible enabler for the illicit use of drugs, poor health, poverty and inequality.63 17.20  Originally established as a sub-Commission of the Commission on Human Rights, the Commission on the Status of Women (CSW) was established as a functional commission of ECOSOC in 1946.64 Its mandate includes the preparation of recommendations and reports to ECOSOC on the promotion of women’s rights and on urgent problems requiring immediate attention in the field of women’s rights.65 The CSW has contributed to the elaboration of important declarations and conventions with regard to the human rights of women.66 17.21  The CSW will often set priority themes for its work in a given period.67 The mandate of the CSW has been expanded on a number of occasions since the establishment (p. 633) of the Commission. That mandate includes68 the monitoring and reviewing and appraisal of progress achieved and problems encountered in the implementation of the Beijing Declaration and the Platform for Action of the Fourth World Conference on Women;69 and supporting mainstreaming of a gender perspective in the activities of the UN. It is also mandated to contribute to the achievement of the SDGs.70 17.22  The Commission for Social Development (CSocD) was established by the ECOSOC in 1946 to ‘advise [it] on social policies of a general character and, in particular, on all matters in the social field not covered by the specialised inter-governmental agencies’.71 In 1961, the ECOSOC ‘consider[ed]’ that the following ought be the focus of the CSocD’s work programme: (a)  The elimination of hunger and the raising of levels of health and nutrition; (b)  The improvement of standards of health and the extension of adequate health services to meet the needs of the whole population; (c)  The eradication of illiteracy, the extension and improvement of general and vocational education at all levels, and the improvement of access to educational and cultural facilities for all sectors of the population; (d)  The education of youth through the use of mass media and other educational methods in the spirit of peace, in order to combat those influences which lead to undesirable social trends and juvenile delinquency; (e)  The raising of levels of employment and income in both rural and urban areas, with particular attention, where appropriate, to employment opportunities for young people;

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(f)  The improvement of housing conditions and of community services, especially for persons in low-income groups, urban development and planning for future urban growth; (g)  The provision of social welfare and of comprehensive social security services to maintain and improve the standard of living of families, individuals and special groups, including the disabled, with special attention to working mothers and to the establishment of adequate provision for children, as well as to the strengthening and improvement of the quality of family life; (h)  … (i)  The allocation of an increasing proportion of the national budgetary provision for social and cultural purposes. 72 (p. 634) 17.23  These are issues that are also within the remit of the various entities already discussed (for instance, the CSW, the Commission on Narcotic Drugs, and the Commission on Crime Prevention and Criminal Justice). Although the 2030 Agenda leaves the implementation of the SDGs largely to national authorities, the CSocD plays a role in facilitating the process of implementation of these goals.73 17.24  The United Nations Commission on Sustainable Development (CSD) was established as a functional commission of the ECOSOC in 1993,74 following a request by the General Assembly.75 Its main goal is to ensure the effective follow-up of the United Nations Conference on Environment and Development (UNCED) (also known as the Earth Summit) and the implementation of the latter’s Outcome Document—Agenda 21.76 The principal functions of the CSD are: 1.  to review progress at the international, regional, and national levels in the implementation of recommendations contained in [Agenda 21]; 2.  to elaborate policy guidance and options for future activities to follow up the Johannesburg Plan of Implementation and achieve sustainable development; and 3.  to promote dialogue and build partnerships for sustainable development with governments, the international community, and the major groups identified in Agenda 21 as key actors outside the central government who have a major role to play in the transition towards sustainable development. 77 17.25  Lastly, the Commission on Population and Development (CPD) was established by the ECOSOC in 1946.78 The CPD, ECOSOC, and the General Assembly constitute a threetiered intergovernmental mechanism that plays the primary role in following up on the implementation of the Programme of Action of the International Conference on Population and Development.79 The General Assembly has mandated the CPD, as a functional commission assisting ECOSOC, with monitoring, reviewing, and assessing the implementation of the Programme of Action at the national, (p. 635) regional, and international levels, and advising ECOSOC thereon. In particular, the CPD is responsible for arranging studies and advising the ECOSOC on: •  Population issues and trends; •  Integrating population and development strategies; •  Population and related development policies and programmes; •  Provision of population assistance, upon request, to developing countries and, on a temporary basis, to countries with economies in transition; and

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•  Any other population and development questions on which either the principal or the subsidiary organs of the UN or the specialized agencies may seek advice. 80 17.26  The CPD and its Secretariat, the Population Division of the UN Department of Economic and Social Affairs, have contributed to the UN’s general goal of improving of social conditions by producing a series of reports, expert papers, and demographic surveys on key social issues such as: mortality; youth; family, including marriage and union; ageing; HIV; and the various MDGs.81 These documents are often the basis of decisions by the ECOSOC and other UN bodies on the measures that should be taken to improve social conditions around the globe, such as the implementation of the MDGs.

2.2.2  ECOSOC regional commissions 17.27  There are five ECOSOC regional commissions (each of which has sub-regional offices): •  Economic Commission for Africa (ECA); •  Economic and Social Commission for Asia and the Pacific (ESCAP); •  Economic Commission for Europe (ECE); •  Economic Commission for Latin America and the Caribbean (ECLAC); and •  Economic and Social Commission for Western Asia (ESCWA). 17.28  The terms of reference for the regional commissions vary in the extent to which they make reference to social improvement. For instance, the terms of reference for the ECE make no reference to social conditions, yet the terms of reference of the ECA make explicit reference to the interplay between economic and social development.82 Similarly, in November 1959, the General Assembly, having ‘recognis[ed] that economic development and social development are interrelated and that social progress is an end in itself’, noted with approval the ECOSOC’s decision to expand the terms of (p. 636) reference for the ESCAP (then the Economic Commission for Asia and the Far East) and the ECLAC (then the Economic Commission for Latin America), ‘to include the social aspects of economic development and the interrelationship of the economic and social factors’.83 Further, the Committee on Women and Development, a subsidiary organ of the ECA, is charged with, inter alia, [i]dentify[ing] and highlight[ing] the major economic and social development issues and concerns with a view to promoting policies and strategies for gender equality and women’s advancement in collaboration with the other technical committees of [the] ECA.84 17.29  As with the other regional commission with similar relevant mandates, the ESCAP conducts applied research on social policy options, strategies, and programmes. It seeks to promote cooperation and to assist countries within its region in the implementation of internationally agreed commitments to promote the social integration of vulnerable groups and gender equality. At its 4th session, the ESCAP identified a number of priority issues for action, including confronting rising inequalities, reducing poverty and enhancing social protection. Senior officials also acknowledged the importance of addressing unemployment and underemployment among young people, placing gender equality and women’s empowerment at the

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centre of the policy agenda, and continuing implementation of the Incheon Strategy in order to support the full and effective participation of persons with disabilities.85 17.30  Like the ECA, the ESCAP is comprised of various committees including, relevantly, the Committee on Social Development. 17.31  The steps taken by the ESCAP to improve social conditions are fairly representative of the actions taken by the remaining regional committees, which will not therefore be considered in detail.

2.3  Social issues in the work of the Security Council 17.32  Since the inception of the UN Charter, the range of matters that may be regarded as a ‘threat to international peace and security’ under Article 39 of the Charter has increased tremendously.86 The Security Council has recognized that the concept of threat to peace and security may extend beyond the threats posed by war and armed conflict to sources of instability in the economic, social, humanitarian, and environmental fields.87 The Council has increasingly sought to take action with regard to social concerns on a (p. 637) global,88 regional,89 and national scale.90 In most cases the social issues are considered by the Security Council as part of a certain armed conflict, in connection either with the sources or, alternatively, the consequences of such conflicts.91 In particular, the Council has recognized that social measures are an important part of comprehensive post-conflict solutions,92 such as in Afghanistan,93 and of achieving stability.94 (p. 638) 17.33  The Security Council has also, on occasion, dealt with the consequences of instability that are caused by, or which exacerbate, social issues unrelated to armed conflict, for example health-related problems95 and problems caused by natural disasters.96 In addition, the Security Council has also dealt with social topics in a more general or abstract manner, making recommendations to member states and non-state actors, such as civil society, and requesting specific actions from other UN bodies.97 The most frequent social themes in Security Council resolutions have been: gender equality and the role of women in armed conflict;98 the role of children99 and youth;100 crime, including transitional justice;101 poverty;102 and health.103 17.34  However, while the Council has been able to take some measures, including the use of peacekeeping, to deal, on rare occasions, with the immediate consequences of sudden social problems that can lead to immediate instability and insecurity, it must also be remembered that the Security Council is not equipped to take measures that will address the structural causes of social problems. Also, though practice has established that the concept of threats to the peace extends beyond international conflicts and inter-state violence, and includes internal conflicts and terrorism, it is not yet settled to what extent the jurisdiction of the Council and the concept of a threat to peace can be expanded to deal with matters that do not relate at all to violence.104

(p. 639) 2.4  Social issues in work of the Secretary-General 17.35  The Secretary-General has undertaken a series of initiatives in an attempt to further the UN’s social objectives. General statements usually highlight such goals and call for specific courses of action, aiming to improve various social conditions. For instance, Secretary-General António Guterres has highlighted issues such as growing social inequality, natural disasters, employment, and education.105 Similarly, former SecretaryGeneral Ban Ki-moon often stressed the need to address gender inequality,106 the effects of climate change,107 health,108 and poverty,109 usually under the broader theme of development.110

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17.36  The General Assembly, the Security Council, ECOSOC, and other UN bodies have also entrusted the Secretary-General with specific functions conducive to the improvement of social conditions. In particular, the Secretary-General has often been requested to provide expert reports or surveys on the following topics: crime prevention, including drug control;111 sports as a means to achieve education, health, and development;112 the advancement of women;113 and youth.114 To this end, (p. 640) the Secretary-General has established several expert panels, such as the High-Level Panel of eminent persons on the Post-2015 Development Agenda,115 and has delegated tasks to other UN bodies within the UN Secretariat, such as the Department of Economic and Social Affairs (DESA) and its subdivisions.116 Furthermore, the Secretary-General issues an annual report on the work of the UN, appraising its activities and outlining its future priorities.117 Social themes that have appeared frequently in those reports include: sustainable development; drug control and crime prevention; and development of Africa.118

3.  UN Departments, Programmes, and Offices involved in social issues 3.1  The United Nations Department of Economic and Social Affairs 17.37  DESA’s work falls mainly into three categories: norm-setting, analysis, and capacitybuilding.119 Over the years, DESA has issued a number of publications, including surveys, reports, working papers, policy briefs, and national development strategies. Since 2008, these documents have focused on the following social themes: public administration; gender; social development; sustainable development; and population.120 17.38  As well as supporting deliberations on social issues in the General Assembly, ECOSOC, and ECOSOC subsidiary bodies, DESA also serves as the Secretariat for (p. 641) conferences, summits, and a range of intergovernmental and expert groups with a social focus.121 DESA’s main priorities are promoting progress towards and strengthening accountability in achieving UN development goals. Furthermore, DESA is responsible for ensuring civil society engagement with the UN through ECOSOC. 17.39  DESA is comprised of various Divisions, including the Division for Social Policy and Development (DSPD), the Division for Sustainable Development (DSD), the Population Division, and the Division for Public Administration and Development Management (DPADM).

3.1.1  DESA Division for Social Policy and Development 17.40  The DSPD ‘promotes awareness and understanding of the core social issues of poverty eradication, employment generation and social integration through its analytical and normative work’.122 The ‘issues’ with which the DSPD is concerned are: ageing; civil society; cooperatives; disability; employment and decent work; family; indigenous peoples; poverty eradication; social integration and social inclusion; youth.123 17.41  While certain of these issues fall within the remit of human rights instruments such as the International Covenant on Economic, Social, and Cultural Rights (ICESCR), and are thus the concern of the Committee on Economic, Social and Cultural Rights (CESCR), the work undertaken by the DSPD can be contrasted with the primary objective of the CESCR. The latter’s task is to monitor implementation of the ICESCR through both the periodic reporting and individual communication mechanisms,124 whereas the DSPD’s role is mainly promotional. This distinction is exemplified by the work undertaken by the DSPD in the context of the issue of employment and decent work. In that context the DSPD’s objective is

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to promote productive employment and decent work for all by organizing expert group meetings and panel discussions to highlight this important issue. 17.42  The DSDP also provides support to the CSocD. In addition to its relationship with the Commission, the DSDP launched the United Nations Social Development Network, which includes as one of its purposes raising awareness of social development initiatives among stakeholders, including academia, civil society and the private sector, creating a dynamic social development network, and reaching out to the public by sharing knowledge, skills and tools.125

(p. 642) 3.1.2  DESA Division for Sustainable Development 17.43  The DSD leads the work of the Secretariat in promoting and coordinating implementation of the sustainable development agenda of the UN, including 17 SDGs set out in Agenda 2030.126 It carries out this work by: providing support to UN intergovernmental processes on sustainable development; analysis and policy development; capacity development at country level; inter-agency coordination; and knowledge management, communication, and outreach.127 It prepares the Secretary-General’s reports on sustainable development topics,128 and also supports member states in preparing their voluntary national reviews. 17.44  The member states’ reviews are considered by ECOSOC’s High-Level Political Forum on Sustainable Development (HLPFSD), which was established in 2013 and operates under the ‘auspices of the General Assembly and [ECOSOC]’.129

3.1.3  DESA Population Division 17.45  The Population Division was established in 1946 to serve as the Secretariat of ECOSOC’s Population Commission, created in 1946, and now serves as the Secretariat for the CPD.130 Over the years, the Population Division has played an active role in the intergovernmental dialogue on population and development, and has led substantive preparations for the major UN conferences on population and development.131 Much of the work of the Population Division is analytical and, together with the CPD, it produces constantly updated demographic estimates and projections for all countries, as well as developing and disseminating new methodologies. The Division produced data that were essential for the monitoring of the progress in achieving the MDG.132 17.46  The Population Division deals with the same social themes as the CPD, such as youth, ageing, and mortality.133 In addition to its work for the CPD, it provides (p. 643) support to the Special Representative of the Secretary-General for International Migration and Development.134 It co-chairs the Population cluster of the Executive Committee on Economic and Social Affairs, together with the Population Division of Economic Commission for Latin America and the Caribbean.135

3.1.4  DESA Division for Public Administration and Development Management 17.47  The DPADM’s mission is to assist UN member states in strengthening governmental capacity with the aim of promoting sustainable development, advancing public sector reform, and improving service delivery.136 In order to achieve this goal, the DPADM was charged with providing secretariat support to the United Nations Programme in Public Administration.137

3.2  UN Offices dealing with specific social themes

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3.2.1  United Nations Entity for Gender Equality and the Empowerment of Women 17.48  The United Nations Entity for Gender Equality and the Empowerment of Women (UN Women) was created in July 2010 by the General Assembly with the purpose of enhancing the UN’s goals on gender equality and the empowerment of women.138 UN Women was created by merging four separate parts of the UN system, which had dealt with promotion of women and gender equality, and it took on the mandates and functions of those entities.139 UN Women is overseen by a complex multi-tiered intergovernmental governance structure, which involves an Executive Board for the entity, the CSW, ECOSOC, and the General Assembly.140 The operational activities of UN Women are primarily overseen by an Executive Board composed of 41 member states. The CSW on the other hand, provides overall policy guidance to UN Women, which ought to then inform the entity’s operational strategies and activities.141 UN Women submits an annual report to the Commission on the normative aspects (p. 644) of the entity’s work and on its implementation of the policy guidance provided by the Commission.142 It also submits an annual report on operational activities to the Executive Board and to ECOSOC, with the latter submitting the report to the Assembly.143 17.49  UN Women works, amongst other issues, towards: the elimination of discrimination against women and girls (including the elimination of violence against women); the empowerment of women; and the achievement of equality between women and men. The entity performs the institutional task of supporting inter-governmental bodies, such as the CSW, in their formulation of policies, global standards, and norms. Operationally, it also helps member states to implement these standards by providing technical and financial support, and by forging effective partnerships with civil society. Within the UN System, the entity leads and coordinates work on gender equality, as well as promoting accountability, including through regular monitoring of system-wide progress.144

3.2.2  The United Nations Human Settlements Programme 17.50  The United Nations Human Settlements Programme (UN-Habitat) was established by the Assembly to promote socially and environmentally sustainable towns and cities.145 It is the focal point for all urbanization and human settlement matters within the UN system. UN Habitat’s first predecessor was the United Nations Habitat and Human Settlements Foundation (UNHHSF), which was created in 1975 by the Assembly as the first official UN body dedicated to urbanization.146 In 1976, when urbanization became a more pressing issue around the globe, the first international UN conference fully dedicated to this issue was held.147 This conference, HABITAT I, resulted in the creation, in 1978, of the other two precursors of UN-Habitat: the United Nations Commission on Human Settlements (an intergovernmental body); and the United Nations Centre for Human Settlements (commonly referred to as ‘HABITAT’), which served as the executive secretariat of the Commission.148 A Second United Nations Conference on Human Settlements (HABITAT II) was held in 1996,149 followed by a General Assembly special session in 2001, the latter adopting (p. 645) a Declaration on Cities and Other Human Settlements in the New Millennium.150 A year after that Declaration, HABITAT’s mandate was strengthened and its status elevated to a fully fledged Programme in the UN System, operating as a subsidiary organ of the Assembly.151 The Programme is overseen by a Governing Council composed of 58 members elected by ECOSOC for four-year terms. 17.51  The main social issues arising from urbanization with which UN-Habitat is concerned include: water and sanitation; safety; housing and slum upgrading; gender; youth; city reconstruction; and city planning and design.152 UN-Habitat was also engaged in fulfilling the objectives set out in the Millennium Declaration, in particular the achievement of a significant improvement in the lives of at least 100 million slum-dwellers by the year 2020, and to halve the proportion of people without sustainable access to safe drinking

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water and basic sanitation by the year 2015.153 UN-Habitat also works with member states to go beyond current targets for ending city slums, by reducing slum populations and improving the lives of slum-dwellers.154

3.2.3  United Nations Office on Drugs and Crimes 17.52  The United Nations Office on Drugs and Crimes (UNODC) was established in 1997 through a merger between the United Nations Drug Control Programme and the Centre for International Crime Prevention.155 It is mandated to oversee and implement the UN’s International Drug Programme and its Crime Prevention and Criminal Justice Programme in an integrated manner, on the understanding that issues of drug control, crime prevention, and international terrorism are interrelated and must be seen in the context of sustainable development and human security.156 It serves as the (p. 646) central drug control entity within the UN, ‘with exclusive responsibility for coordinating and providing effective leadership for all United Nations drug control activities’.157 With respect to international crime prevention and control it is responsible for: strengthening regional and international cooperation in preventing and combating transnational crime, in particular organized and economic crime, money-laundering, illicit trafficking in women and children, financial crimes and terrorism in all its forms; and promoting effective and fair administration of justice, with due respect for the rights of all those affected by crime or involved in the criminal justice system.158 17.53  The UNODC also serves as a repository for technical expertise of the matters within its mandate, and provides services to the General Assembly, ECOSOC, and the committees and conferences dealing with drug control and crime. The Executive Director of the UNODC acts on behalf of the Secretary-General in fulfilling his/her responsibilities under international treaties and resolutions of the UN with respect to international drug control or crime prevention.159 17.54  The UNODC provides governments and other development partners with specialized assistance and expertise in the adoption and implementation of various conventions, treaties, and protocols, as well as with technical and financial assistance to these governments.160 The UNODC’s works include reports, studies, and online tools, which help to combat crime and other threats to security and health.161 For instance, the UNODC issues an annual report that presents a comprehensive assessment of the international drug problem. This report, which is based on data and estimates collected or prepared by Governments, the UNODC, and other international institutions, attempts to identify trends in the evolution of global illicit drug markets.162 The UNODC is a member of the United Nations Development Group (UNDG).163

3.3  Other UN bodies and permanent Programmes with a role in the improvement of social conditions 17.55  In addition to the bodies already discussed, the following bodies, Offices, or Programmes engage in work that, to varying extents, may have a role in improving social conditions: •  The Executive Committee on Economic and Social Affairs (ECESA), which was established in 1997. The ECESA brings together the heads of various UN entities (including, DESA, the five Regional Commissions of ECOSOC, the United Nations Conference on Trade and Development (UNCTAD), the United (p. 647) Nations Environmental Programme (UNEP), UN-Habitat, UNODC, UN Women, the Office of the United Nations High Commissioner for Human Rights (OHCHR), the United Nations Development Programme (UNDP), the United Nations Office of the High Representative for the Least Developed Nations (OHRLLS), and the Office of the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Special Advisor on Africa (OSAA), as well as the research/training institutes such as the United Nations University (UNU), the United Nations Research Institute for Social Development (UNRISD), and the United Nations Institute for Training and Research (UNITAR)) to ‘identify ways of pooling resources and services to maximize programme impact and minimize administrative costs and more generally to facilitate joint strategic planning and decision-making’. 164 •  The Inter-Agency Support Group (IASG) on Indigenous Issues, which is part of the DSPD and is engaged in supporting and promoting the mandate of the UN Permanent Forum on Indigenous Issues within the UN System. Its main objectives are to provide an opportunity for the exchange of information as regards the Forum’s work on indigenous issues; and to strengthen inter-agency cooperation to promote the human rights and the wellbeing of indigenous peoples. 165 •  The United Nations Research Institute for Social Development (UNRISD), which has the sui generis status of an ‘autonomous United Nations activity’. 166 It was established by the UN Secretariat to conduct research into the problems and policies of social development and the relationship between social and economic development during the different phases of economic growth. 167 Its research is intended to inform the work of the Secretariat itself, regional commissions and specialized agencies, and national institutions. UNRISD’s stated aim is to ensure that social equity, inclusion, and justice are central to development thinking, policy, and practice. 168 To this end, UNRISD: •  focuses on the often neglected social content and impacts of development processes and the role of social institutions, relations, and actors in shaping development policies and pathways; •  engages researchers, policy makers, and civil society actors from around the world in generating and sharing knowledge, in order to shape policy within and beyond the UN System; •  mobilizes and strengthens the research capacity of individuals and institutions in developing countries through collaborative inquiry; and (p. 648) •  provides a space for the exchange of ideas, giving prominence to marginalized viewpoints, often challenging mainstream development thinking and offering alternative policy options. 169 •  The UN International Research and Training Institute for the Advancement of Women (UN-INSTRAW), which is the UN autonomous research institute devoted to research, training, and knowledge management to achieve gender equality and women’s empowerment. It works by building alliances with governments around the world, the UN System, academia, civil society, the private sector, and other actors. All of UN-INSTRAW’s programmes are related to improving the social conditions of women. These are: •  Human security (aiming, inter alia, to end violence against women); •  Development (dealing with, inter alia, the impact of migration on national and community development, and the formation of transnational families; and •  Human Rights (which seeks, inter alia, to strengthen women’s role in politics and decision-making). 170

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•  The United Nations Interregional Crime and Justice Research Institute (UNICRI) is another UN autonomous research institute that undertakes important activities in the social field. 171 It was originally established in 1967 by the Secretary-General as the United Nations Social Defence Research Institute (UNSDRI), 172 following an ECOSOC resolution that outlined its creation, functions, and organizational arrangements. On 24 May 1989, ECOSOC renamed the Institute to the ‘United Nations Interregional Crime and Justice Research Institute’ and adopted its present Statute, which reaffirms and enlarges the previous mandate. 173 UNICRI’s mandate has been to assist intergovernmental and governmental organizations and nongovernmental organizations (NGOs) in their efforts to formulate and implement improved policies in the fields of crime prevention and justice administration of both juvenile delinquency and adult criminality. 174 •  The United Nations Human Development Programme (UNDP), is a subsidiary organ of the Assembly. It was created by the Assembly in 1965 as a result of the merger between the United Nations Expanded Programme of Technical Assistance, created in 1949, and the United Nations Special Fund, established in 1958. 175 By addressing issues of human development, the UNDP contributes to the (p. 649) improvement of social conditions. In recent years, the UNDP has focused on the following social issues: •  the Millennium Development Goals (including poverty and hunger reduction, the fight against HIV, gender equality and the reduction of child mortality, and the achievement of universal and primary education); •  democratic governance in post-conflict societies; and •  sustainable development (encompassing the connected issues of multidimensional poverty, inequality, exclusion, and sustainability).

176

The UNDP has a significant field presence, where it works with national governments to meet development challenges and develop local capacity. 177 It often plays a coordinating role at field level among UN agencies. One of its significant activities is the issuance of an annual Human Development Report since 1990, which measures and analyses developmental progress. 178 In particular, the Human Development Report provides new measurement tools, innovative analysis, and often controversial policy proposals. The UNDP is one of the main UN organs involved in the implementation of the Post-2015 Development Agenda. 179 •  The United Nations Children’s Fund (UNICEF), which was created by the Assembly on 11 December 1946 to provide emergency food and healthcare to children in countries that had been devastated by World War II. 180 In 1953, UNICEF became a permanent Programme of the UN System, and its name was shortened from the original United Nations International Children’s Emergency Fund, although it retained the original acronym. 181 UNICEF is mandated by the Assembly to advocate for the protection of children’s rights, to help meet their basic needs, and to expand their opportunities to reach their full potential. 182 The most relevant social issues with which UNICEF is concerned include: •  child protection and social inclusion; •  child survival (including immunization, disabilities, nutrition, health, water, sanitation, and hygiene); •  education; and •  gender equality.

183

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(p. 650) UNICEF also seeks to implement the relevant MDGs. 184 Most of UNICEF’s work is in the field, with staff in over 190 countries and territories. 185 Its main activities include statistics and data-gathering, provision of logistics and supplies, research though its Office of Research—Innocenti, development of social and economic policies, and situation analysis. 186 •  The United Nations World Food Program (WFP) is a joint organ of the UN and the Food and Agricultural Organization (FAO), established for the purpose of addressing hunger and promoting food security. The WFP was first established in 1961 after the 1960 Food and Agricultural Organization (FAO) Conference. 187 It was formally established in 1963 by the FAO and the Assembly on a three-year experimental basis, but the programme was extended on a continuing basis in 1965. Since 1996, the WFP has been overseen by an Executive Board that reports to ECOSOC and the FAO Council. 188 The Executive Head of the Programme is appointed jointly by the UN Secretary-General and the Director-General of the FAO. The WFP works to eradicate hunger and poverty, with the ultimate goal of eliminating the need for food aid itself. It is the world’s largest humanitarian organization addressing hunger, and provides food to tens of millions of people each year. 189

4.  Institutional coordination of UN social action 17.56  As the foregoing analysis indicates, there are numerous organs and divisions within the UN that play a role in improving social conditions. The general mandates and responsibilities of these institutions seem to indicate that coordination on economic, social, and humanitarian issues and the governance of the UN’s operational activities in these areas are undertaken by ECOSOC, under the authority of the Assembly.190 17.57  In more detail, the Assembly usually makes specific requests to ECOSOC and the Secretary-General, while these report back to the Assembly.191 At the same time, in order to fulfil some of the requests of the Assembly, the Security Council and ECOSOC, the Secretary-General resorts to the subdivisions of the Secretariat and establishes ad hoc expert groups.192 The Secretary-General also prepares an annual (p. 651) report of the activities of the UN as a whole.193 Lastly, the Secretariat also has a coordinating role: (a)  the Deputy Secretary-General helps to manage Secretariat operations and to ensure coherence of activities and programmes; (b)  four executive committees oversee the organization’s main areas of work (peace and security, economic and social affairs, development operations, and humanitarian affairs); and (c)  a Senior Management Group chaired by the Secretary-General is the functional equivalent of a ‘Cabinet’. 194 17.58  Furthermore, the Assembly and the ECOSOC are assisted by the Office for ECOSOC Support and Coordination (OESC) in the performance of their coordination tasks.195 The OESC is a division of the DESA, which is a department of Secretariat.196 In particular, the OESC assists the ECOSOC in the implementation of the 2030 Agenda for Sustainable Development by coordinating efforts to achieve internationally agreed goals.197 17.59  Lastly, the UNDG, which is chaired by the Administrator of the UNDP,198 has an important coordinating function.199 It unites the UN Funds, Programmes, specialized agencies, Departments and Offices that play a role in development in over 150 countries.200 The UNDG operates at different levels. At the global level, its main function is to serve as a high-level forum for joint policy formation and decision-making between those bodies.201 It

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is also responsible for implementing the existing coordination programme at regional and national levels.202 17.60  To an external observer, the UN institutional network appears to be a rather tangled web, as organs frequently have overlapping functions. In this regard, many commentators have described the UN’s complex structure as highly fragmented, or even as a ‘non’system,203 while others have expressed the view that such complexity leads to overall inefficiency and ineffectiveness.204 (p. 652) 17.61  Coordination within the Secretariat has been the subject of some criticism. As a result of the growing membership at the UN, coordination within the Senior Management Group became cumbersome. In an attempt to resolve the issue, two executive decision-making committees were established within the Group in 2005: a Policy Committee and a Management Committee. Nonetheless, it is still unclear whether the new committees have improved coordination between the Secretariat’s various Offices and Departments, including those that undertake activities in the social field. The role of the Deputy Secretary-General in enhancing coherence of the UN’s activities in social and economic areas has also been criticized. This is because some of the tasks performed by the Deputy Secretary-General appear to be unconnected with each other,205 as a result of his/her broad responsibility to undertake any assignment as determined by the Secretary-General.206 Lastly, it has been argued that the Secretariat’s ECESA has not helped to create a more cohesive and unified leadership at the operational level in the economic and social fields. This is principally due to its large and heterogeneous membership, coupled with the irregularity of its meetings. Moreover, the production of papers by the ECESA has been infrequent and laborious, particularly as regards the social dimensions of macroeconomic policy.207 17.62  In the 1960s, the so-called Jackson Report proposed a series of efforts to bring about a more efficient alignment of the UN bodies involved in the promotion of social development.208 In 2006, a High-Level Panel on UN System-Wide Coherence, established by Secretary-General Kofi Annan, published its ‘Delivering as One Report’.209 In this report, the Panel identified as problems the fact that ‘there is a large number of overlapping functions, failures of coordination and policy inconsistency within the UN system’.210 The Panel recommended a series of reforms, including the establishment of ‘One United Nations’ at country level (with one leader, one programme, one budget, and, where appropriate, one office for all UN agencies); the creation of the position of UN Development Coordinator (to be exercised by the UNDP Administrator), with responsibility for the performance and accountability of all (p. 653) development activities; and the establishment of a Sustainable Development Board to oversee the One United Nations country Programme.211 17.63  Some of the criticisms regarding coordination within the UN are directed at ECOSOC’s mandate and functions.212 One of the main criticisms of ECOSOC is that it does not have any decision-making functions, in spite of (i) its numerous subsidiary bodies; (ii) the diverse subjects with which it is concerned; (iii) its relationship with many UN specialized agencies; and (iv) its role in implementing the SDGs.213 In fact, without such a decision-making power or a leadership position, it is unlikely that ECOSOC will be able to implement and coordinate the achievement of its SDGs. Along similar lines, commentators have stated that ECOSOC is too large214 and has fallen far short of its envisaged role of coordination and overall direction in the economic and social fields.215 Some have proposed solutions to ECOSOC’s ineffective coordinating role, which vary from its abolition and replacement216 to the strengthening of its function as a coordinator of the various parts of the system and of its subsidiary bodies.217

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17.64  The issue of overlapping functions was also identified between ECOSOC, the Second Committee of the General Assembly, and the Trade and Development Board, as an analysis of these bodies’ agendas show that very often the same topics are addressed without any real difference of approach.218 In addition, it is sometimes difficult to characterize ECOSOC’s functions, given the ambiguity of its relationship with the (p. 654) Assembly,219 as defined in Article 60 of the UN Charter.220 In particular, it is difficult to identify which specific coordinating function pertains to each of these two bodies. 17.65  The Assembly’s coordinating role in improving social conditions, particularly as regards its relationship with ECOSOC, has also been criticized. In this regard, some have proposed a better definition of these organs’ mandates so as to avoid any duplication and overlapping.221 More generally, it is argued that the Assembly, although the parent body in the System or the ultimate locus of coordination, has neglected socio-economic and organizational coordination, due to the excess of items in its agenda.222 In this connection, some have proposed that the Assembly’s authority should be enhanced.223 This would be in line with the objective set in paragraph 30 of the Millennium Declaration, which is ‘to restore the central position of the General Assembly as the chief deliberative policy making and representative organ of the UN and to enable it to play its role effectively’.224 17.66  As one commentator has highlighted, authority, purpose, and specialization are key components of coordination.225 Yet the foregoing analysis seems to indicate that there is great confusion as to what the exact functions of UN bodies are in the social field. This is particularly due to the overlap and duplication of these functions. Growing interest in crosscutting and often vague themes, such as ‘sustainable development’ or ‘human development’, tends to compound this problem.226 Furthermore, there is no clear or effective coordinating authority for the activities of the various UN bodies that have social objectives.227

Footnotes: 1

  UN Charter, Preamble, para 4.

2

  UN Charter, Art 1(3).

3

  UN Charter, Art 55(a) and (b).

4

  Stoll, ‘Article 55’ in The Charter of the United Nations: A Commentary (3rd edn, Simma et al (eds), 2012), 1541. 5

  See Kotschnig, ‘The United Nations as an Instrument of Economic and Social Development’ (1968) 22(1) International Organization 16, at 16. 6

  UN Charter, Arts 13(b) and 62(1).

7

  UN Secretary-General, ‘70 Years—Eight Secretaries-General’, available at http:// www.un.org/un70/en/timelines/secretaries-general. 8

  UN Secretary-General, ‘The Secretary-General’s Five-Year Action Agenda’, 25 January 2012, available at https://www.un.org/sg/en/priorities/index.shtml. 9

  UN Charter, Art 24(1).

10

  See, inter alia, SC Res 2313 (2016); SC Res 2282 (2016); SC Res 2250 (2015); SC Res 2122 (2013); and SC Res 1674 (2006). 11

  See ch 7, ‘United Nations Specialized Agencies’, particularly section 7, ‘Relationship agreements’.

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12

  Some important Assembly resolutions that set out the UN’s more specific social goals and actions to achieve them include: GA Res 1710(XVI) (1961), defining the ‘Development Decade’; ‘The Copenhagen Declaration on Social Development and the Programme of Action 1995’, being the Outcome Documents of the World Summit for Social Development (WSSD), UN General Assembly, Report of the World Summit for Social Development, UN Doc A/CONF.166/9, 6–12 March 1995; ‘The UN Millennium Declaration’, GA Res 55/2 (2000), particularly section III establishing the Millennium Development Goals; ‘The Future We Want’, GA Res 66/288 (2012), being the Outcome Document of the UN Conference on Sustainable Development (Rio+20), 2012; ‘Transforming our World: The 2030 Agenda for Sustainable Development’, GA Res 70/1 (2015), establishing 17 specific Sustainable Development Goals. 13

  See ch 18, ‘Improving Economic Wellbeing’; Kotschnig, n 5, 16.

14

  Stoll, n 4, 1545, para 36.

15

  See the Copenhagen Declaration on Social Development and Programme of Action of the Word Summit for Social Development, UN Doc A/CONF 166/9, 19 April 1995. 16

  See ch 22, ‘Promotion and Protection of Human Rights’.

17

  Kotschnig, n 5, 22; DuBois, ‘New Directions in the Social Development Programme of the United Nations’ (1966) 9(3) International Social Work 21; Stoll, n 4, 1545, paras 34–5. 18

  See Stoll, n 4, 1545, para 35. That the concept of ‘development’ as used within the UN is confined to improving the situation of developing countries can be seen in the fact that many of the commitments contained in the Sustainable Development Goals (SDGs) adopted under the ‘2030 Agenda for Sustainable Development’ (GA Res 70/1 (2015) and n 12) apply to states regardless of their level of development. See Langford, ‘Lost in Transformation? The Politics of the Sustainable Development Goals’ (2016) 30 Ethics & International Affairs 167. 19

  The UN Conference on Environment and Development (Earth Summit) held in Rio de Janeiro, Brazil, in 1992, developed the concept of sustainable development. The summit adopted the ‘Rio Declaration on Environment and Development’, UN Doc A/CONF 151/26 (1992) (vol I), which proclaims that ‘In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it’ (Principle 4). The summit also adopted Agenda 21, UN Doc A/CONF 151/26 (1992), which sets out a comprehensive plan of action with regard to sustainable development. 20

  The MDGs are contained in Section III of the United Nations Millennium Declaration, GA Res 55/2 (2000). The Declaration was adopted by all 189 states then members of the UN, with 147 of them represented at the summit that adopted the Declaration by their Heads of State and Governments. As adopted, there were eight goals and 18 targets, which were to be achieved by 2015. The eight goals are: eradicating extreme hunger and poverty; achieving universal primary education; promoting gender equality and empowering women; reducing child mortality; improving maternal health; combating HIV/AIDS, malaria, and other diseases; ensuring environmental sustainability; and developing a global partnership for development. Emphasis was put on monitoring progress towards achievement of the goals and on measuring that progress. Within a year of the adoption of the goals and targets, 48 indicators for monitoring progress towards their achievement were adopted by consensus by experts from the UN, International Monetary Fund (IMF), Organization for Economic Cooperation and Development (OECD), and the World Bank. See Report of the Secretary-General, Road map towards the implementation of the United Nations Millennium Declaration, UN Doc A/56/326, 6 September 2001, Annex 1, pp 55–8. See also at http:// mdgs.un.org. In 2007, the MDG framework was revised to include four new targets agreed by member states at the 2005 World Summit (GA Res 60/1 (2005)), and recommended, in

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2006, by the Secretary-General in his report on the work of the Organization (see Secretary-General, Report on the work of the Organization, UN Doc A/61/1, 16 August 2006, para 24). In 2007, the General Assembly took note of the Secretary-General’s report in which he presented the new framework, including the indicators to monitor progress towards the new targets, as recommended by the Inter-Agency and Expert Group on MDG Indicators (IAEG). See at http://mdgs.un.org/unsd/mdg/Host.aspx?Content=Indicators/ OfficialList.htm. Each year, the UN prepared a report on progress achieved towards implementing the goals, based on data relating to the indicators, aggregated at global and regional levels. See at http://www.un.org/millenniumgoals/reports.shtml. 21

  See Langford, n 18, 169. On the achievements made during the period of the MDGs, see United Nations, The Millennium Development Goals Report 2015 (United Nations 2015). For criticisms of the MDGs, see Pogge, ‘The First United Nations Millennium Development Goal: A Cause for Celebration?’, (2004) 5 Journal of Human Development 377; Amnesty International, From Promises to Delivery: Putting Human Rights at the Heart of the Millennium Development Goals(2010), & Saith, ‘From Universal Values to Millennium Development Goals: Lost in Translation’, (2006) 37 Development and Change 1167. Some of criticisms were that: some of the targets were unambitious, and were easily met by middleincome countries; that progress was uneven across countries; and that some of the indicators set for various targets were limited, thus creating perverse incentives for implementation. 22

  The SDGs were adopted by the General Assembly in ‘Transforming our World: 2030 Agenda for Sustainable Development’, GA Res 70/1 (2015). The Agenda calls on member states to achieve 17 goals and 169 targets by 2030. The commitments apply to states without regard to their level of development, and cover economic, social, and environmental issues. The 17 goals aim to achieve: no poverty; no hunger; good health; quality education; gender equality; clean water and sanitation; affordable and clean energy; decent work and economic growth; sustainable industrialization and innovation; reduced inequalities; sustainable cities and communities; responsible consumption and production; urgent action to tackle climate change; unpolluted oceans; sustainable action on land; peace, justice, and strong institutions; and partnerships to achieve the goals. See at http://www.un.org/ sustainabledevelopment/. The follow-up and review of the 2030 Agenda is the primary responsibility of the High-Level Political Forum on Sustainable Development (HLPF). See Report of the Secretary-General, Progress towards the Sustainable Development Goals, UN Doc E/2016/75, 3 June 2016, in which the Secretary-General outlined progress made with respect to each of the 17 SDGs. 23

  For a list, see at http://www.un.org/en/development/desa/what-we-do/conferences.html. These major conferences and summits include the World Conferences on Women held in Mexico (1975), Copenhagen (1980), Nairobi (1985), and Beijing (1995); the 1990 World Summit for Children; the 1990 World Conference on Education for all; the 1992 United Nations Conference on Environment and Development held in Rio de Janiero; the 1994 International Conference on Population and Development; the 1995 Fourth World Conference on Women; the UN Conferences on Human Settlement (HABITAT I & II); the 2014 World Conference on Indigenous Peoples; the 2016 General Assembly High-Level Meeting on the World Summit on the Information Society (WSIS +10); and the 2016 World Humanitarian Summit. 24

  See n 12.

25

  See General Assembly, 24th Special Session, Agenda Item 9, GA Res S-24/2 (2000).

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26

  Following the 2000 World Summit for Social Development, the Assembly adopted an outcome document that reaffirmed the Copenhagen Declaration, and which proposed further initiatives for social development and methods to achieve the same, including, for instance, ‘[e]nsur[ing] appropriate and effective expenditure of resources for universal access to basic education and primary health care’, ‘[s]trengthening mechanisms for the participation of all people, and promot[ing] cooperation and dialogue among all levels of government and civil society as contributions to social integration’, and ‘[r]eassess[ing], as appropriate, [member states’] macroeconomic policies with the aim of greater employment generation and reduction in the poverty level while striving for and maintaining low inflation rates’ (GA Res S-24/2 (2000)). 27

  The 1995 Copenhagen World Summit for Social Development pledged to make the conquest of poverty, the goal of full employment, and the fostering of social integration overriding objectives of development. See particularly paras 2, 6, 9, and 16 of the Copenhagen Declaration on Social Development in the Final Report of the World Summit for Social Development (The Copenhagen Declaration and Programme of Action), UN Doc A/CONF 166/9, UN World Summit for Social Development 1995, at http://www.un.org/esa/ socdev/wssd/text-version/. Five years on, world leaders reconvened in Geneva in June 2000, to review what had been achieved, and to commit themselves to new initiatives. The Millennium Declaration that contained the MDGs was adopted following the 2000 Millennium Summit, with the 55th session of the General Assembly (2000) designated as ‘The Millennium Assembly of the United Nations’. On the MDGs, see n 20. In 2013, noting that the deadline for the attainment of those goals (2015) was drawing closer, the President of the General Assembly hosted a special event to follow up on efforts made towards achieving the MDGs. Following this event, member states undertook to ‘intensify all efforts for [the MDGs’] achievement by 2015’ and to hold a high-level summit in 2015 to adopt a post-2015 development agenda, which would ‘reinforce the international community’s commitment to poverty eradication and sustainable development’. See General Assembly, ‘Outcome document of the special event to follow up efforts made towards achieving the Millennium Development Goals’, 68th session, Agenda Items 14 and 118, UN Doc A/68/L.4*, available at https://digitallibrary.un.org/record/758308. 28

  See n 22.

29

  UN Charter, Art 14(b).

30

  Some important examples are the resolutions referred to in n 12.

31

  See, inter alia, GA Res 49 (I) A–C (1946); GA Res 49 (I) A (1946); GA Res 4 (I) (1946); GA Res 123 (II) (1947); GA Res 119 (II) (1947); GA Res 280 (III) (1949). 32

  See, in particular, GA Res 1675 (XVI) (1961).

33

  GA Res 278 (III) (1949).

34

  GA Res 395 (V) (1950); GA Res 554 (VI) (1952).

35

  GA Res 2542 (XXIV) (1969).

36

  GA Res 417 (V) (1950).

37

  GA Res 2497(XXIV) (1969).

38

  GA Res 401 (V) (1950); GA Res 524 (VI) (1952); GA Res 625 (VII) A–B (1952).

39

  GA Res 537 (VI) (1952); GA Res 2598 (XXIV) (1969).

40

  GA Res 532 (VI) A (1952); GA Res 1163 (XII) (1957); GA Res 1162 (XII) (1957); GA Res 2263 (XXII) (1967).

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41

  GA Res 525 (VI) (1952); GA Res 1714 (XVI) (1961).

42

  GA Res 527 (VI) (1952); GA Res 308 (IV) (1949).

43

  GA Res 1677 (XVI) (1961).

44

  See GA Res 1710 (XVI) (1961), proclaiming the 1960s the ‘United Nations Development Decade’. During the Decade, developing countries were to set their own targets of a minimum annual growth rate of 5 per cent of aggregate national income. In addition, the Assembly also called for accelerated measures to eliminate illiteracy, hunger, and disease. As set out in para 17.10, the General Assembly, in 2000 and 2015, adopted the MDGs and the SDGs, respectively. 45

  See, inter alia, GA Res 1838 (XVII) (1962); GA Res 2264 (XXII) B (1967).

46

  GA Res 71/162 (2016) (see ‘General Assembly Adopts 50 Third Committee Resolutions, as Diverging Views on Sexual Orientation, Gender Identity Animate Voting’, 19 December 2016, at https://www.un.org/press/en/2016/ga11879.doc.htm). 47

  See, eg, GA Res 70/182 (2015).

48

  See, eg, GA Res 71/161 (2016); GA Res 71/160 (2016); GA Res 71/159 (2016); GA Res 70/183 (2015). 49

  See, eg, GA Res 70/170 (2015).

50

  See, eg, GA Res 70/205 (2015).

51

  The Second Committee is responsible for economic issues; and to the extent that, as discussed in section 1.2, ‘The “social” issues addressed by the UN’, there is an overlap between economic and social issues, the Second Committee will also deal with some social issues. See generally, ch 18, ‘Improving Economic Wellbeing’. 52

  See Permanent Mission of Switzerland to the United Nations, The PGA Handbook: A Practical Guide to the United Nations General Assembly (2011), 65. 53

  For example, in 2016 the General Assembly adopted 50 resolutions and eight decisions recommended by the Third Committee on issues such as gender, the death penalty, digital privacy, the question of refugees, racism, human rights, crime prevention, drug control, literacy, and the family. See GA Res 71/162 (2016) (see ‘General Assembly Adopts 50 Third Committee Resolutions, as Diverging Views on Sexual Orientation, Gender Identity Animate Voting’, 19 December 2016, at https://www.un.org/press/en/2016/ga11879.doc.htm). At its second plenary meeting, on 16 September 2016, the General Assembly determined to include in the agenda of its 70th session, and allocate to the Third Committee, the item entitled ‘Social development’, which included: (i) Social development, including questions relating to the world social situation and to youth, ageing, disabled persons, and the family; (ii) Literacy for life: shaping future agendas (see UN General Assembly, UN Doc A/71/252, 16 September 2016, p 14). Similarly, in its 2015 Report, ‘General Assembly, Report of the third Committee: Social Development, Seventieth Session, Agenda Item 28’, UN Doc A.70/481, 1 December 2015, the Third Committee recommended a number of draft resolutions to the Assembly, including on social inclusion policies and programmes involving youth, and cooperatives in social development. The Assembly subsequently adopted each of these draft resolutions. 54

  For example, in 2015: ‘At the seventieth session of the General Assembly, the Third Committee considered over 65 draft resolutions, more than half of which were submitted under the human rights agenda item alone. These included three so-called country-specific resolutions on human rights situations. The Third Committee is expected to consider a similar number of draft resolutions during the [71st] … session of the General

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Assembly’ (Social, Humanitarian & Cultural—Third Committee, available at http:// www.un.org/en/ga/third/). 55

  The report of the HRC is allocated both to the Third Committee and to the Plenary of the General Assembly. As with other agenda items shared between committees, the General Committee of the Assembly recommends which aspect of the item is considered by which committee. See The PGA Handbook, n 52, 38 and 65. 56

  See at http://www.un.org/en/ga/third/.

57

  See ch 5, ‘The Economic and Social Council’.

58

  For a fuller discussion of the functional and regional commissions, including their institutional features such as membership, see ch 6, ‘Subsidiary Organs’. 59

  ECOSOC Res 1992/1.

60

  ECOSOC Res 1992/22. The CCPCJ has stated: ‘In developing normative frameworks which prevent and mitigate corruption, transnational organised crime, the trafficking in persons, as well as protect victims, and address the impact of crime and violence on women and children—the Commission has worked to protect the most vulnerable individuals and improve development prospects across societies. This speaks to the universality of the work of the CCPCJ as well as one of the sustainable development agenda’s highest ambitions: to give every person the access to the safety and justice necessary to contribute to the growth, employment, health, education, institutional strengthening and integrity goals of their own societies’ (Note on Contribution of the Commission on Crime Prevention to the 2016 HighLevel Forum on Sustainable Development on ‘Ensuring that no one is left behind’, 23 May 2016). 61

  ECOSOC Res 9(I) (1946).

62

  ECOSOC Res 1999/30.

63

  UN Commission on Narcotic Drugs, Note on the Contribution of the Commission on Narcotic Drugs to the 2016 High-Level Political Forum on Sustainable Development on ‘Ensuring that no one is left behind’, 23 May 2016. This society-centred approach to combatting the world drug problem was reiterated by the Assembly in its Outcome Document following its Special Session on the World Drug Problem in 2016. 64

  See ECOSOC Res 11(II)(1946).

65

  ibid.

66

  In addition to conducting the initial work for the elaboration of the Convention on the Elimination of All Forms of Discrimination against Women, adopted by GA Res 34/180 (1979), the Commission (or Working Groups or committees of the Commission) has also prepared a number of other conventions and declarations. These include: the Convention on the Political Rights of Women, adopted by the General Assembly on 20 December 1952; the Convention on the Nationality of Married Women, adopted by the Assembly on 29 January 1957; the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, adopted on 7 November 1962; and the Recommendation on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, adopted on 1 November 1965; the Declaration on the Elimination of Discrimination against Women, ultimately being adopted by the General Assembly on 7 November 1967. 67

  See, eg, ECOSOC, Commission on the Status of Women, Report on the 60th session (20 March 2015 and 14–24 March 2016), E/2016/27–E/CN.6/2016/22, which urges all states to ‘[i]mplement all goals and targets of the 2030 Agenda for Sustainable Development in a comprehensive manner’. The CSW proposed the following priority themes for its work in 2017–19: women’s economic empowerment in the changing world of work; challenges and opportunities in achieving gender equality and the empowerment of rural women and girls;

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and social protection systems, access to public services, and sustainable infrastructure for gender equality, and the empowerment of women and girls. See ECOSOC Res 2016/3. For resolutions setting priority themes, see ECOSOC Res 1987/24. Subsequently, multi-year programmes of work were adopted in 1996 in ECOSOC Res 1996/6, in 2001 in ECOSOC Res 2001/4, in 2006 in ECOSOC Res 2006/9, in 2009 in ECOSOC Res 2009/15, and in 2013 in ECOSOC Res 2013/18. 68

  See ECOSOC Res 1996/6.

69

  See Report of the Fourth World Conference on Women, Beijing, 4–15 September 1995 (UN Pub Sales No E.96.IV.13). 70

  See ECOSOC Res 2015/6.

71

  See ECOSOC Res 10 (II) (1946).

72

  ECOSOC Res 1139 (XLI) (1966).

73

  ECOSOC Commission for Social Development, Emerging Issues: Implementing the 2030 Agenda for Sustainable Development: Moving from Commitments to Results for Achieving Social Development: Note by the Secretariat, E/CN.5/2016/4. The key thematic areas of social development that are said to be critical drivers for the implementation of the 2030 Agenda’ are: reducing inequalities; addressing multiple dimensions of poverty and hunger; promoting productive employment and decent work for all; social inclusion and inclusive development to leave no one behind; and investing in universal access to basic social services (23 November 2015), at 111A–E. 74

  ECOSOC, Establishment of the Commission on Sustainable Development, E/1993/207, 12 February 1993. 75

  GA Res 47/191 (1993).

76

  ibid and CSD, at https://sustainabledevelopment.un.org/intergovernmental/csd. On the recent achievements of the CSD, see Report of the Secretary-General, Lessons learned from the Commission on Sustainable Development, UN Doc A/67/757, 26 February 2013. 77

  GA Res 47/191 (1993) and Mandate of the Commission on Sustainable Development, available at https://sustainabledevelopment.un.org/intergovernmental/csd/mandate. 78

  It was originally named the ‘Population Commission’, but in 1964 it was decided by the General Assembly that it should be renamed. See ‘Report of the International Conference on Population and Development’, GA Res 49/128 (1994). 79

  ibid.

80

  http://www.un.org/en/development/desa/population/commission/index.shtml.

81

  Publications of the Population Division can be accessed at http://www.un.org/en/ development/desa/population/publications/index.shtml. A list of themes with which the CPD and the Population Division are concerned can be found at http://www.un.org/en/ development/desa/population/theme/index.shtml. 82

  For instance, the original terms of reference of the ECA include ‘initiating and participating in measures for facilitating concerted action for the economic development of Africa, including its social aspects’, and ‘in carrying out [that function] deal as appropriate with the social aspects of economic development and the interrelationship of economic and social factors’ (ECOSOC Res 671 A (XXV) (1958), E/3123 Supp no 1). 83

  GA Res 1392 (XIV) (1959).

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84

  United Nations Economic Commission for Africa: African Centre for Gender and Social Development, Aide Memoire, E/ECA/CWD/7/inf.2 (3 May 2011). 85

  United Nations Economic and Social Commission for Asia and the Pacific, Report of the Committee on Social Development on its fourth session, E/ESCAP/CSD(4)/4. 86

  UN Charter, Art 39. For a discussion of the use of Art 39 in the context of social themes, see De Wet, The Chapter VII Powers of the United Nations Security Council (2004), 139–40. 87

  See the Security Council Presidential Statement, S/23500/, 31 January 1992, made on behalf of the Council by the British Prime Minister, on the occasion of the first Security Council meeting at the level of Heads of State and Government. It stated (at p 2) that: ‘The absence of war and military conflicts amongst States does not itself ensure international peace and security. The non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security.’ 88

  See, eg, SC Res 2282 (2016), ‘Review of the UN’s Peacebuilding Architecture’. This Resolution includes reference to a large number of social issues in the context of peacebuilding. It ‘Emphasiz[es] the importance of a comprehensive approach to sustaining peace, particularly through the prevention of conflict and addressing its root causes, strengthening the rule of law at the international and national levels, and promoting sustained and sustainable economic growth, poverty eradication, social development, sustainable development, national reconciliation and unity including through inclusive dialogue and mediation, access to justice and transitional justice, accountability, good governance, democracy, accountable institutions, gender equality and respect for, and protection of, human rights and fundamental freedoms’. 89

  See, eg, SC Res 2177 (2014), dealing with the outbreak of Ebola in West Africa. In this Resolution, the Council ‘Determin[es] that the unprecedented extent of the Ebola outbreak in Africa constitutes a threat to international peace and security’. Furthermore, it ‘Recogniz[es] that the peacebuilding and development gains of the most affected countries concerned could be reversed in light of the Ebola outbreak and underlin[es] that the outbreak is undermining the stability of the most affected countries concerned and, unless contained, may lead to further instances of civil unrest, social tensions and a deterioration of the political and security climate’. Concern is also expressed about the particular impact of the Ebola outbreak on women. 90

  See, eg, SC Res 2243 (2015), which renews the mandate of the UN Stabilization Mission in Haiti (MINUSTAH). This Resolution ‘Recogniz[es] … the interconnected nature of the challenges in Haiti, reaffirming that sustainable progress on security, the rule of law and institutional reform, national reconciliation and development, including the combat against unemployment and poverty, are mutually reinforcing’. It also ‘Not[es] with concern that food insecurity, as a result of drought and the consequent decrease in the harvest during the period from March to June, could impact the humanitarian situation and stability’ and ‘Acknowledg[es] that while important progress has been made, Haiti continues to face significant humanitarian challenges, with approximately 60,801 internally displaced persons, whose living conditions in the remaining sites, which are characterized by malnutrition, uneven access to water and sanitation, affecting especially women and children, must be further addressed’. Para 19 of the Resolution ‘Encourages MINUSTAH, in cooperation with the appropriate international actors, to continue to assist the Government in effectively tackling gang violence, organized crime, illegal arms trafficking, drug trafficking and trafficking of persons especially children, as well as ensuring proper border management’.

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91

  SC Res 2242 (2015), on women and peace and security, including in peacekeeping; SC Res 2225 (2015), on the abduction of children. 92

  See SC Res 2282 (2016) which, in a preambular paragraph, ‘Emphasiz[es] the importance of a comprehensive approach to sustaining peace, particularly through the prevention of conflict and addressing its root causes, strengthening the rule of law at the international and national levels, and promoting sustained and sustainable economic growth, poverty eradication, social development, sustainable development, national reconciliation and unity including through inclusive dialogue and mediation, access to justice and transitional justice, accountability, good governance, democracy, accountable institutions, gender equality and respect for, and protection of, human rights and fundamental freedoms’. See also SC Res 2177 (2014). 93

  See SC Res 2274 (2016), with several references to issues regarding social development. In its preamble, it ‘Stress[es] the crucial importance of advancing regional cooperation as an effective means to promote security, stability and economic and social development in Afghanistan’ and in para. 6 ‘Calls on the United Nations, with the support of the international community, to support the Government of Afghanistan’s reform agenda … regarding the issues of security, governance, justice and economic and social development …’. 94

  See SC Res 2243 (2015), which in a preambular paragraph ‘Emphasiz[es] that progress in the reconstruction of Haiti, as well as in Haiti’s social and economic development, … are crucial to achieving lasting sustainable stability, and reiterating the need for security to be accompanied by social and economic development’. In para 5, the Council then affirmed that adjustment of the configuration of the MINUSTAH peacekeeping force should take into account ‘the impact of social and political realities on Haiti’s stability and security’. 95

  See, SC Res 2177 (2014), dealing with the outbreak of Ebola in West Africa.

96

  See the enlargement by the Council of the mandate and force size of MINUSTAH after the earthquake in that country on 12 January 2010 (SC Res 1908 (2010)). The increase in force levels was to allow MINUSTAH ‘to support the immediate recovery, reconstruction and stability efforts’ (ibid, para 1). However, when France proposed that the Security Council should be briefed on the situation in Myanmar following Cyclone Nargis in 2008, China, supported by Russia, objected, arguing that a natural disaster was not a matter of international peace. See Renshaw, ‘Disasters, Despots and Gun-Boat Diplomacy’ in The International Law of Disaster Relief (eds Caron, Kelly, and Telesetsky, 2014), 174–5; Barber, ‘The Responsibility to Protect the Survivors of Natural Disaster: Cyclone Nargis, a Case Study’ (2009) 14 JCSL 1. 97

  See, eg, SC Res 2282 (2016) on the ‘architecture’ of peacebuilding.

98

  See, eg, SC Res 2242 (2015) on ‘Women and Peace and Security’.

99

  SC Res 2225 (2015) dealing with abduction of children in armed conflict; SC Res 1261 (1999), dealing with the targeting of children in armed conflict, including recruitment and use of child soldiers. 100

  SC Res 2250 (2015) in which the Council recognized the threat to stability and development posed by the rise of radicalization among young people, urged member states to consider ways to give youth a greater voice in decision-making and to consider setting up mechanisms that would enable young people to participate meaningfully in peace processes and dispute resolution. Youth is defined in the resolution as referring to persons between the ages of 18 and 29. 101

  SC Res 2177 (2014); SC Res 1674 (2006); SC Res 808 (1993).

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102

  SC Res 2282 (2016); SC Res 1674 (2006); SC Res 2243 (2015).

103

  SC Res 2286 (2016); SC Res 2177 (2014).

104

  With regard to MINUSTAH (see n 90), it may be recalled that the mission was already present in Haiti before the earthquake. On the debate, see generally, White, Keeping the Peace (1997) , 42–47; De Wet, n 86, 139–44; Fielding, ‘Taking a Closer Look at Threats to Peace: The Power of the Security Council to Address Humanitarian Crises’ (1996) 73 University of Detroit Mercy Law Review 560; and ch 26, ‘Keeping the Peace’. 105

  Guterres, ‘Remarks to the General Assembly High-Level Dialogue on “Building sustainable peace for all: synergies between the 2030 agenda for sustainable development and sustaining peace” ’, 24 January 2017, available at https://www.un.org/sg/en/content/sg/ speeches/2017-01-24/secretary-generals-building-sustainable-peace-all-remarks. 106

  UN Secretary-General Ban Ki-moon, ‘Remarks at the Informal General Assembly Debate on Gender Equality and the Empowerment of Women’, General Assembly, 6 March 2007, available at http://www.un.org/sg/selected-speeches/statement_full.asp?statID=71; UN Secretary-General Ban Ki-moon, ‘Unite to End Violence against Women’, UN Headquarters, 5 March 2009, available at http://www.un.org/sg/selected-speeches/ statement_full.asp?statID=1634. 107

  UN Secretary-General Ban Ki-moon, ‘Remarks at Event: “Climate Change: The Defining Challenge” ’, Washington, DC, 16 July 2007, available at http://www.un.org/sg/selectedspeeches/statement_full.asp?statID=1520; UN Secretary-General Ban Ki-moon, ‘Adapting to Climate Change’, Ulaanbaatar (Mongolia), 27 July 2009, available at http://www.un.org/sg/ selected-speeches/statement_full.asp?statID=549. 108

  UN Secretary-General Ban Ki-moon, ‘Remarks at Launch of the Global Strategy for Women’s and Children’s Health—“Every Woman, Every Child”’, UN Headquarters, 22 September 2010, available at http://www.un.org/sg/selected-speeches/statement_full.asp? statID=949. 109

  UN Secretary-General Ban Ki-moon, ‘Secretary-General’s Remarks on the International Day for the Eradication of Poverty’, New York, 17 October 2014, available at http:// www.un.org/sg/statements/index.asp?nid=8113. 110

  UN Secretary-General Ban Ki-moon, ‘Address to Global Compact Leaders Summit’, New York (USA), 24 June 2010, available at http://www.un.org/sg/selected-speeches/ statement_full.asp?statID=867. 111

  For examples, see the following reports to the General Assembly: ‘Report of the Secretary-General on the United Nations African Institute for the Prevention of Crime and the Treatment of Offenders’, UN Doc A/70/121, 24 June 2015; ‘Report of the SecretaryGeneral on the implementation of the mandates of the United Nations crime prevention and criminal justice programme, with particular reference to the technical cooperation activities of the United Nations Office on Drugs and Crime’, UN Doc A/70/99, 19 June 2015; ‘Report of the Secretary-General on international cooperation against the world drug problem’, UN Doc A/70/98, 17 June 2015. 112

  Report of the Secretary-General, ‘Sport for development and peace: realizing the potential’, UN Doc A/69/330, 18 August 2014. 113

  See, eg, ‘Report of the Secretary-General on the improvement of the situation of women in rural areas’, UN Doc A/70/204, 24 July 2015. 114

  For example, Report of the Secretary-General, ‘Ways to promote effective structured and sustainable youth participation’, UN Doc A/70/156, 20 July 2015.

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115

  UN, A New Global Partnership: Eradicate Poverty and Transform Economies through Sustainable Development, The Report of the High-Level Panel of Eminent Persons on the Post-2015 Development Agenda (2013), available at https://sustainabledevelopment.un.org/ index.php?page=view&type=400&nr=893&menu=1561. 116

  See at https://www.un.org/development/desa/en/. See also section 3.1, ‘The United Nations Department of Economic and Social Affairs’. 117

  The Reports of the Secretary-General on the Work of the Organization are available at http://www.un.org/sg/speeches/reports/70/report.shtml. 118

  See, eg, ‘Report of the Secretary-General on the work of the Organization’, UN Doc A/ 70/1, 22 July 2015, at 6–10, 19, 25–7; ‘Report of the Secretary-General on the work of the Organization’, UN Doc A/69/1, 21 July 2014, at 7–10, 16, 23, and 24; and ‘Report of the Secretary-General on the work of the Organization’, UN Doc A/68/1, 19 August 2013, at 3– 7, 13, 18, and 19. 119

  See DESA, World Economic and Social Survey 2014/2015: Learning from National Policies Supporting MDG Implementation, E/2015/50/Rev.1 ST/ESA/360, at ii: ‘The Department of Economic and Social Affairs of the United Nations Secretariat is a vital interface between global policies in the economic, social and environmental spheres and national action. The Department works in three main interlinked areas: (i) it compiles, generates and analyses a wide range of economic, social and environmental data and information on which States Members of the United Nations draw to review common problems and to take stock of policy options; (ii) it facilitates the negotiations of Member States in many intergovernmental bodies on joint courses of action to address ongoing or emerging global challenges; and (iii) it advises interested Governments on the ways and means of translating policy frameworks developed in United Nations conferences and summits into programmes at the country level and, through technical assistance, helps build national capacities.’ For an overview of the DESA’s constituent parts and its chain of command, see the ‘Organigram of DESA’, which can be found at http://www.un.org/en/development/desa/ imagescontent/DESA-chart.pdf. 120

  A collection of DESA’s publications can be found at https://www.un.org/development/ desa/publications/. 121

  See section 1.3, ‘Major summits and conferences’.

122

  United Nations Department of Economic and Social Affairs, Working Towards an Inclusive Prosperous and Sustainable World (e-brochure, 2013), available at http:// www.un.org/en/development/desa/e-brochure/, p 14; also see at http://www.un.org/en/ development/desa/what-we-do/desa-divisions.html. 123

  DESA, Division for Social Policy and Development, ‘Issues’, at https://www.un.org/ development/desa/dspd/issues.html. 124

  See, ECOSOC Res 1985/17; Convention on Economic, Social and Cultural Rights, Adopted and Opened for Signature, Ratification and Accession by GA Res 2200 A (XXI) (1966), pt IV; Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, GA Res 63/117 (2008). 125

  United Nations Social Development Network, at http://unsdn.org/.

126

  United Nations Department of Economic and Social Affairs, Working Towards an Inclusive Prosperous and Sustainable World, n 122, p 16. 127

  ibid.

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128

  United Nations Department for Economic and Social Affairs, Division for Sustainable Development, ‘Mission Statement’, available at https://sustainabledevelopment.un.org/ about. 129

  The HLPFSD, ‘consistent with its universal intergovernmental character, will provide political leadership, guidance and recommendations for sustainable development, follow up and review progress in the implementation of sustainable development commitments, enhance the integration of the three dimensions of sustainable development in a holistic and cross-sectoral manner at all levels and have a focused, dynamic and action-oriented agenda, ensuring the appropriate consideration of new and emerging sustainable development challenges’ (UN General Assembly, Format and organizational aspects of the high-level political forum on sustainable development, GA Res 67/290 (2013)). 130

  For a discussion of the CPD, see section 2.2.1, ‘ECOSOC Functional Commissions’.

131

  UN DESA, Population Division, ‘About United Nations Population Division’, available at http://www.un.org/en/development/desa/population/about/index.shtml. 132

  The Population Division produced the indicators used for monitoring improvements in maternal health with regard to Goal 5 of the MDGs and, in partnership with other UN agencies, participated in the assessment of child mortality levels for monitoring Goal 4 of the MDGs. See United Nations Department of Economic and Social Affairs, Working Towards an Inclusive Prosperous and Sustainable World, n 122, p 20. 133

  UN DESA, Population Division, ‘Population Themes’, available at http://www.un.org/en/ development/desa/population/theme/index.shtml. 134

  See n 131.

135

  See n 131.

136

  United Nations Department of Economic and Social Affairs, Working Towards an Inclusive Prosperous and Sustainable World, n 122, p 24. DPADM, ‘Who We Are’, available at https://publicadministration.un.org/en/About-Us/Who-We-Are. The Division’s principal tasks are to: provide secretariat and substantive support to the Assembly and the ECOSOC on issues related to governance and public administration; promote greater awareness, common approaches, understanding, and sustainable policy options among governments through advocacy and knowledge transfer on good governance; provide advisory services and capacity-building tools based on research and analysis; strengthen partnerships and cooperation with other international, regional, and professional organizations, both public and private, and within and outside the UN System, including through the United Nations Public Administration Network. 137

  GA Res 723 (VIII) (1953); ECOSOC Res 1199 (XLII) (1967).

138

  See GA Res 64/289 (2010), paras 49–50.

139

  See ibid, para 49. The four Offices that were merged to form UN Women were the Division for the Advancement of Women (DAW); the International Research and Training Institute for the Advancement of Women (INSTRAW); the Office of the Special Adviser on Gender Issues and Advancement of Women (OSAGI); and the United Nations Development Fund for Women (UNIFEM)). 140

  See GA Res 64/289 (2010), para 60.

141

  See ibid, para 67.

142

  See ibid, para 67(a) and (b).

143

  See ibid, para 67 (c), (d), and (e).

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144

  For a collection of UN Women’s publications, see at http://www.unwomen.org/en/ digital-library/publications. UN Woman’s 2015–16 Annual Report, containing some of the entity’s initiatives during the year, a summary of financial statements, and a list of new programmes and projects, can be found at http://www.unwomen.org/en/digital-library/ publications/2016/6/annual-report-2015-2016. 145

  UN General Assembly, Strengthening the mandate and status of the Commission on Human Settlements and the status, role and functions of the United Nations Centre for Human Settlements (Habitat), UN Doc A/56/206, 26 February 2002. 146

  GA Res 29/3327 (1974).

147

  The Vancouver Declaration on Human Settlements—From the Report of Habitat: United Nations Conference on Human Settlements, Vancouver, Canada, 31 May to 11 June 1976. 148

  See A/CONF.70/15 and Corr. 1 (1976).

149

  See Report of the United Nations Conference on Human Settlements (Habitat II), Istanbul, 3–14 June, 1996 (UN Pub Sales No E.97.IV.6). 150

  GA Res S-25/2 (2001).

151

  See UN Doc A/56/206, 26 February 2002, n 145.

152

  UN Habitat, ‘Urban Themes’, available at http://unhabitat.org/urban-themes/. In addition to work on city planning, infrastructure development, and participatory slum upgrading, UN Habitat also focuses on urban legislation and risk management, and capacity-building for all actors involved in the urbanization process. It engages in research and advocacy, as well as establishing think tanks and networks that enable governments, experts, civil society groups, multilateral organizations, the private sector, and all other development partners to jointly address urban problems. 153

  See GA Res 55/2 (2000), ‘United Nations Millennium Declaration’, para 19. See also UN Habitat, ‘History, mandate and role in the UN system’, at http://unhabitat.org/about-us/ history-mandate-role-in-the-un-system/. According to UN Habitat, although ‘[t]his target has already been achieved in 2013, seven years ahead of target … the overall number of slum dwellers has increased due to more people arriving into slums than leaving, calling for more efforts and actions than ever to curb this trend ’ (ibid). 154

  See GA Res 65/1 (2010), para 77(k), and UN Habitat, ‘History, mandate and role in the UN system’, n 153. 155

  UN General Assembly, Renewing the United Nations: A Program for Reform, UN Doc A/ 51/950, 14 July 1997. The UNODC was originally named the Office for Drug Control and Crime Prevention, but was renamed in 2002. See the Secretary-General’s Bulletin, ‘Organization of the United Nations Office on Drugs and Crime’, UN Doc ST/SGB/2004/6, 15 March 2004. 156

  The United Nations International Drug Control Programme was established by GA Res 45/179 (1990) as the body responsible for coordinated international action in the field of drug abuse control. The UN’s Crime Prevention and Criminal Justice Programme was established by the GA Res 46/152 (1991). See the Secretary-General’s Bulletin, n 155, Section 2. 157

  See the Secretary-General’s Bulletin, n 155, Section 2.2(a).

158

  ibid, Section 2.3(a).

159

  ibid, Section 3.3.

160

  ibid.

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161

  A collection of UNODC’s publications can be found at http://www.unodc.org/unodc/en/ publications.html?ref=menutop. 162

  See, eg, UNODC’s 2016 Drug Report, at http://www.unodc.org/wdr2016/.

163

  See section 4, ‘Institutional coordination of UN social action’.

164

  UN Executive Committee on Economic and Social Affairs, at https://www.un.org/ development/desa/ecesa/#. 165

  Inter-Agency Support Group, at https://www.un.org/development/desa/ indigenouspeoples/about-us/inter-agency-support-group.html. 166

  UN Secretary-General’s Bulletin, ‘The United Nations Research Institute for Social Development’, UN Doc ST/SGB/l26, 1 August 1963. 167

  ibid, para 1.

168

  UNRISD, ‘Mandate and Mission’, at http://www.unrisd.org/80256B3C005BF3C2/ (httpPages)/1889BA294D2950E08025791F005CD710?OpenDocument. 169

  ibid.

170

  UN-INSTRAW, ‘Who we are: UN-INSTRAW’, at http://www.unfoundation.org/how-tohelp/donate/instraw.html. 171

  UNICRI, ‘Who We Are, Mission and Statute’, at http://www.unicri.it/institute/ about_unicri/mission_statute/. 172

  UN Secretary-General, Bulletin ST/SGB/134, 8 August 1967; and UNICRI, ‘Who We Are, History of UNICRI’, at http://www.unicri.it/institute/about_unicri/history/. 173

  ECOSOC Res 1989/56 (1998), available at https://www.unodc.org/documents/ commissions/CCPCJ/Crime_Resolutions/1980–1989/1989/ECOSOC/Resolution_1989-56.pdf. 174

  ibid and n 171.

175

  See Jolly, ‘Human Development’ in The Oxford Handbook on the United Nations (eds Daws and Wiess, 2008), 637. See further on UNDP, ch 18, ‘Improving Economic Wellbeing’, section 4, ‘The role of UNDP in economic wellbeing’. 176

  UNDP, ‘A World of Development Experience’, at http://www.undp.org/content/undp/en/ home/operations/about_us.html. 177

  ibid.

178

  For a collection of all Human Development Reports, see UNDP, ‘Research & Publications’, at http://www.undp.org/content/undp/en/home/librarypage.html. In addition to a global report, UNDP publishes regional, national, and local Human Development Reports. 179

  UNDP, ‘UNDP Support to the Implementation of the 2030 Agenda for Sustainable Development’, at http://www.undp.org/content/undp/en/home/librarypage/sustainabledevelopment-goals/strategy-undp-support-to-the-implementation-of-the-2030-agenda/. 180

  UN General Assembly, Establishment of an International Children’s Emergency Fund, GA Res 57/1 (1946). 181

  UN General Assembly, United Nations Children’s Fund, GA Res 802/8 (1953).

182

  ibid and UNICEF, ‘About UNICEF, UNICEF’s Mission Statement’, available at http:// www.unicef.org/about/who/index_mission.html. 183

  UNICEF, ‘What We Do’, at http://www.unicef.org/whatwedo/.

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184

  See n 182.

185

  See n 182.

186

  See n 182.

187

  GA Res 1714 (XVI) (1961).

188

  Executive Board of the World Food Programme, established by GA Res 50/8 (1995).

189

  See generally, Shaw, The World’s Largest Humanitarian Agency: The Transformation of the UN World Food Programme and of Food Aid (2011). 190

  Fomerand and Dijkzeul, ‘Coordinating Economic and Social Affairs’ in Daws Weiss (eds), n 175, 563. See also, ch 5, ‘The Economic and Social Council’. ECOSOC’s role, including in coordinating social activities, has been described as ‘complementary to the Assembly’: see Rosenthal, ‘Economic and Social Council’ in Daws and Weiss (eds), n 175, 139. 191

  See, eg, UN General Assembly, Strengthening of the Economic and Social Council, GA Res 61/16 (2007) and UN General Assembly, Revitalization of the work of the General Assembly, GA Res 69/321 (2015). 192

  See ch 15, ‘The United Nations Secretariat and Secretary-General’.

193

  See ch 15, para 15.15.

194

  Fomerand and Dijkzeul, n 190, at 572–3.

195

  ECOSOC, ‘Office for ECOSOC Support and Coordination’, at https://www.un.org/ ecosoc/en/node/454160. 196

  ibid.

197

  ibid.

198

  UNDG, ‘Chair and Advisory Group’, at https://undg.org/home/about-undg/chairadvisory-group/. 199

  The UNDG derives its mandates from the regular Comprehensive Policy Reviews of operational activities carried out by the UN and resulting in a General Assembly resolution. See, eg, UN General Assembly, Quadrennial comprehensive policy review, GA Res 67/226 (2012). 200

  UNDG, ‘About the UNDG’, at https://undg.org/home/about-undg/.

201

  ibid.

202

  UNDG, ‘Delivering as One’, at https://undg.org/home/guidance-policies/delivering-asone/. 203

  Fomerand and Dijkzeul, n 190, 562.

204

  ibid, 564. See also Nicol and Renninger, ‘The Restructuring of the United Nations Economic and Social System: Background and Analysis’ (1982) 4(1) Third World Quarterly 74, at 74–5. See, more generally, Malinowski, ‘Centralization and Decentralization in the United Nations Economic and Social Activities’ (1962) 16(3) International Organization 521. 205

  Fomerand and Dijkzeul, n 190, 577.

206

  ibid.

207

  ibid.

208

  Nicol and Renninger, n 204, at 74, referring to Sir Robert Gillman Allen Jackson, A Study of the Capacity of the United Nations Development System (1970).

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209

  UN General Assembly, ‘Delivering as One’, Report of the High-Level Panel on United Nations System-Wide Coherence in the areas of development, humanitarian assistance and the environment, UN Doc A/61/583, 20 November 2006, at 12. 210

  ibid, at 12. More generally, the Panel also noted that ‘the work of the United Nations in the areas of development and the environment is often fragmented and weak. Inefficient and ineffective governance and unpredictable funding have contributed to policy incoherence, duplication and operational ineffectiveness across the system. Cooperation between organizations has been hindered by competition for funding, mission creep and outdated business practices. … The current design of the UN system risks perpetuating a myriad of niche players, which individually will not have the influence and authority to secure a strong voice in national and global debates. We have heard in our consultations that unifying the UN at country level would compromise the characteristics and dynamism of individual agencies. But failing to strategically position the UN in its entirety risks marginalizing the whole system in the long term’ (ibid, at 10 and 22, para 17). 211

  The ‘Delivering as One’ concept was launched with a pilot in eight countries before it was then expanded to other countries. The concept relies on an empowered UN Resident Coordinator (appointed by the UNDP) as head of a single UN Country Team drawn from different agencies. See also UNDG, ‘Delivering as One Background’, at https://undg.org/ home/guidance-policies/delivering-as-one/delivering-as-one-background/. Although the General Assembly considered the proposals of the Panel and requested the SecretaryGeneral to draw up proposals in five areas of concern (including ‘delivering as one’), the informal consultations on ‘System-Wide Coherence’ were discontinued in 2012: see Centre for UN Reform Education, ‘System-wide Coherence’, at http://www.centerforunreform.org/? q=node/33. However, many of the issues included in those consultations continued to be discussed in the context of the Quadrennial Comprehensive Policy Review (QCPR). UN General Assembly, Quadrennial comprehensive policy review, GA Res 67/226 (2012). 212

  On ECOSOC generally, see ch 5, ‘The Economic and Social Council’.

213

  See Luck, ‘Principal Organs’ in Daws and Weiss (eds), n 175, 666; McLaren, ‘The UN System and its Quixotic Quest for Coordination’ (1980) 34(1) International Organization 139, at 143; Martens, ‘The Reform of the UN Economic and Social Council (ECOSOC): A Never-Ending Story?’, Global Policy Forum, 14 November 2006, at https:// www.globalpolicy.org/social-and-economic-policy/social-and-economic-policy-at-the-un/ reform-of-ecosoc-and-the-social-and-economic-policy-process-at-the-un/47509.html. See also ECOSOC, ‘Promoting Sustainable Development’, at https://www.un.org/ecosoc/en/content/ promotion-du-d%C3%A9veloppement-durable. 214

  Rosenthal, n 190, at 292, quoting The Independent Working Group on the Future of the United Nations, Agenda for Change: New Tasks for the United Nations (1995). 215

  Rosenthal, n 190, at 236–302, referring to Commission on Global Governance, Our Global Neighbourhood (1995). 216

  See nn 203 and 204.

217

  Rosenthal, n 190, at 143, referring to The Nordic UN Reform Project, The United Nations in Development: Strengthening the UN through Change: Fulfilling its Economic and Social Mandate (1996), at 11 and 32–5. 218

  Rosenthal, n 190, at 143.

219

  ibid, at 139.

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220

  Art 60 of the UN Charter reads: ‘Responsibility for the discharge of the functions of the Organization set forth in this Chapter [on International Economic and Social Cooperation] shall be vested in the General Assembly and, under the authority of the General Assembly, in the Economic and Social Council, which shall have for this purpose the powers set forth in Chapter X.’ 221

  Group of Friends for the UN Reform, ‘Proposals for the Revitalization of the Work of the General Assembly’, Non-Paper, 2 March 2005, at 2, available at https:// www.globalpolicy.org/images/pdfs/0302friends.pdf. 222

  McLaren, n 213, 142.

223

  Group of Friends for the UN Reform, n 221, 1.

224

  UN General Assembly, United Nations Millennium Declaration, GA Res 55/2 (2000).

225

  McLaren, n 213, 140.

226

  Fomerand and Dijkzeul, n 190, at 564.

227

  McLaren, n 213, 140 and 141.

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Part 3 The United Nations: What it Does, 18 Improving Economic Wellbeing Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): Sustainable development — Developing countries

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(p. 655) 18  Improving Economic Wellbeing 1.  Introduction 18.01 2.  The Second Committee of the General Assembly 18.05 3.  The role of ECOSOC in economic wellbeing 18.11 4.  The role of the UNDP in economic wellbeing 18.16 5.  The United Nations Conference on Trade and Development 18.19 6.  The United Nations Industrial Development Organization 18.25 7.  Certain themes 18.30 8.  Conclusion 18.43 Fomerand and Dijkzeul, ‘Coordinating Economic and Social Affairs’ in The Oxford Handbook on the United Nations (eds Daws and Wiess, 2008), 561; Fortin, ‘United Nations Conference on Trade and Development (UNCTAD)’ (2013) MPEPIL; Howse, ‘Fragmentation and Utopia: Towards an Equitable Integration of Finance, Trade, and Sustainable Development’ in Realizing Utopia: The Future of International Law (ed Cassese, 2012), 427; Mahiou, ‘International Law of Development’ (2013) MPEPIL; Murphy, ‘Capacity, Consensus, Crisis, and Consequences’ in The United Nations Development Programme: A Better Way? (ed Murphy, 2006), 139; Rosenthal, ‘Economic and Social Council’ in The Oxford Handbook on the United Nations (eds Daws and Wiess, 2008), 136; Schrijver, ‘Agenda for Development’ (2011) MPEPIL.

1.  Introduction 18.01  One of the UN’s main purposes is to achieve international cooperation in solving international economic problems.1 To this end, the UN Charter recognizes a link between economic wellbeing and peaceful and friendly relations between states.2 (p. 656) Article 55 of the Charter set outs the UN’s role in promoting ‘higher standards of living, full employment, and conditions of economic and social progress and development … [and] solutions of international economic … and related problems’.3 18.02  Some parts of the UN system work together or separately to improve economic wellbeing, often under the authority of the General Assembly and ECOSOC.4 The SecretaryGeneral plays an important coordinating role.5 The UN has given special attention to developing countries in its work on improving economic wellbeing.6 (p. 657) 18.03  The UN plays a crucial role in setting the global agenda for improving economic wellbeing. It builds consensus for action through, inter alia, thematic decades.7 In the 1970s, decolonization led to new member states pushing for a restructuring of international economic relations.8 The concept of the New International Economic Order (NIEO) met with mixed success.9 The modern approach has been to hold major summits that result in agreement on long-term goals.10 The MDGs agreed on in 2000 were superseded by the SDGs in 2015.11 18.04  Economic wellbeing is pursued through the principal and subsidiary organs, as well as specialized agencies.

2.  The Second Committee of the General Assembly

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18.05  The Second Committee12 is responsible for economic and financial issues on the agenda of the General Assembly. It is to be distinguished from the Fifth Committee, (p. 658) which handles administrative and budgetary issues of the UN itself. As with the other main committees of the General Assembly, all member states are entitled to have one member on the Second Committee.13 18.06  The growth in UN membership and the rise of globalization have increased the complexity and breadth of the Second Committee’s work over the years.14 18.07  During its annual session,15 the Second Committee holds a brief general debate at the outset. Individual agenda items are then debated in parallel with negotiations. Immediately before the debate of an item, a report of the Secretary-General is usually introduced by the responsible UN department and followed by ‘question time’ with Secretariat officials.16 18.08  The Second Committee adopts 40–45 resolutions per session.17 The Chair of the Second Committee assigns a facilitator for each draft resolution. The Committee submits a separate report to the plenary on every agenda item allocated to it.18 The plenary considers each report and votes on the draft resolutions or decisions it contains.19 18.09  The bureau traditionally organizes several side events during the session involving UN departments and NGOs. The Department of Economic and Social Affairs (DESA) provides most of the substantive support for the work of the Second Committee. The ECOSOC Affairs Branch (EAB) in the Department for General Assembly and Conference Management provides secretariat support. (p. 659) 18.10  Different groups of member states have different visions of the priorities of the Second Committee.20 There have been efforts to reform its working methods.21

3.  The role of ECOSOC in economic wellbeing 18.11  ECOSOC22 is the other principal organ that has a mandate to address economic wellbeing. It operates under the overall authority of the General Assembly to coordinate the economic work of the UN system.23 It is the main UN forum for discussing international economic issues and formulating policy recommendations.24 ECOSOC is also the vital link between the UN and civil society.25 18.12  Some of ECOSOC’s work on economic wellbeing is carried out through functional commissions dedicated to specific themes.26 18.13  Over the decades, there has sometimes been a tension between ECOSOC and the General Assembly as to which organ has primary responsibility for implementing Article 55 of the UN Charter.27 The basic division of labour seems to be that the (p. 660) General Assembly sets the agenda, and ECOSOC plays a coordinating and monitoring role.28 18.14  ECOSOC has been criticized for lacking operational efficiency, and various reform efforts have been directed at it since the 1950s.29 Some of these problems have arisen from the abstract wording of Article 55 of the Charter.30 There has also been a lack of political will among member states to use ECOSOC as a meaningful forum for international economic decision-making.31 18.15  Nonetheless, reforms over the last decade, such as General Assembly Resolution 68/1 (2013),32 have strengthened ECOSOC’s role and confirmed its concrete contribution in coordinating follow-up on major UN conferences and summits.

(p. 661) 4.  The role of the UNDP in economic wellbeing

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18.16  The United Nations Development Programme (UNDP)33 was established in 1965 by the UN General Assembly. Its headquarters are in New York, but it mostly operates in the field.34 The UNDP originated from the General Assembly’s implementation of Article 55 of the UN Charter.35 18.17  The UNDP is a UN Programme and a subsidiary organ of the General Assembly. It has a close relationship with the UN General Assembly and ECOSOC.36 The UNDP Administrator is the third highest ranking official in the UN, after the Secretary-General and Deputy Secretary-General.37 18.18  The UNDP focuses on improvements to economic wellbeing through sustainable development and the eradication of poverty.38 It is funded by voluntary contributions.39 (p. 662) While its funds may be less significant in numeric terms than development aid given by international financial institutions, the UNDP’s strength is its field presence, which allows it to serve as a multilateral vehicle for international cooperation.40 In recent years the UNDP has sought to consolidate its priorities and increase its transparency.41

5.  The United Nations Conference on Trade and Development 18.19  The United Nations Conference on Trade and Development (UNCTAD) was established as a permanent subsidiary organ of the General Assembly in 1964.42 It was the result of coordinated efforts of developing countries who were not satisfied with decisionmaking processes dominated by the Bretton Woods institutions.43 18.20  UNCTAD’s functions are organized into ‘three pillars’:44 (p. 663) 1.  a forum for intergovernmental deliberations and consensus-building; 2.  a think tank for research and analysis on development issues;

46

45

and

3.  a provider of tailored technical assistance to respond to the needs of developing countries and countries with economies in transition in implementing development strategies. 47 18.21  UNCTAD holds a ministerial-level meeting every four years to discuss major global economic issues and to decide on its programme of work.48 It also holds discussions with civil society, including at an annual symposium. Every two years, UNCTAD holds the World Investment Forum.49 18.22  UNCTAD’s budget comes from both the UN and extra-budgetary technical assistance funds.50 It has a permanent secretariat in Geneva,51 and as at June 2016 its membership comprised 194 countries.52 18.23  Different groups of member states hold different views on the mandate of UNCTAD.53 It has been criticized for losing its autonomy over its research and analysis function,54 and for a perceived lack of leadership undermining the coordination (p. 664) of work in the secretariat.55 There have also been issues as to the binding nature of the outcomes of its intergovernmental deliberations.56 18.24  At the same time, UNCTAD has been seen as making a valuable contribution through its support for international conventions and the development of common policies, its technical assistance programmes in developing countries, and its generation and elaboration of new principles for international development.57

6.  The United Nations Industrial Development Organization

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18.25  The United Nations Industrial Development Organization (UNIDO) was formally established in 1966.58 It originated as the industry section of the UN Secretariat, before becoming a branch in 1959 and in 1962 the Industrial Development Centre, headed by a commissioner for industrial development.59 In 1965, the General Assembly adopted General Assembly Resolution 2152 (XXI), creating UNIDO as a ‘special organ’ of the UN.60 In 1967, UNIDO was formally established with (p. 665) headquarters in Vienna, Austria. Developing countries wanted it to be converted into a specialized agency.61 The Constitution of the UNIDO was adopted in Vienna on 8 April 1979 at the 7th plenary meeting of the UN Conference on the Establishment of UNIDO as a specialized agency. UNIDO finally became the 16th specialized agency of the UN on 17 December 1985.62 18.26  UNIDO aims to promote inclusive and sustainable industrial development in developing countries and economies in transition. To this end, it also promotes cooperation on the global, regional, national, and sectoral levels.63 18.27  UNIDO has 168 member states and employs 663 staff members.64 18.28  It faced a crisis in the 1990s, when the end of the Cold War meant that key member states believed that industrial development could be supported more effectively by the private sector. As a result, the US, UNIDO’s then largest donor, Canada, and Australia withdrew from UNIDO between 1993 and 1997.65 18.29  A second crisis began in 2011, with the withdrawal of the UK, citing the lack of transparency and weak financial management of UNIDO.66 New Zealand followed in 2013, France and Portugal in 2014, and Belgium in 2015.67

(p. 666) 7.  Certain themes 18.30  Economic wellbeing at the UN is not pursued just through institutions, as already seen, but also through certain themes that involve multiple UN bodies.

7.1  Financing for development 18.31  Financing for development is a relatively new theme for the UN in its work on economic wellbeing. It arose from the 2002 Monterrey Conference on Financing for Development, which achieved the ‘Monterrey Consensus’.68 This was followed by other conferences and initiatives, including the Addis Agenda for Action.69 18.32  A Financing for Development Office was established within DESA70 to provide support for sustained follow-up within the UN to the commitments reached. The Office works with the secretariats of the major stakeholders of the financing for development process (the World Bank, the IMF, the WTO, UNCTAD, and the UNDP).71 18.33  Criticisms of the financing for development work of the UN include a lack of ambition in the adopted texts, and the absence of institutional mechanisms and strict timetables to facilitate implementation.72

7.2  Sustainable development 18.34  Sustainable development73 aims to ‘ensure the promotion of an economically, socially and environmentally sustainable future for the planet and for present and future (p. 667) generations’.74 The UN has played a formative role in the conceptualization of and goal-setting for sustainable development. Its main contribution has been through hosting key conferences in 1972,75 1992,76 2002,77 and 2012.78 These conferences resulted in declarations, plans of action, and development goals.79 18.35  Sustainable development of small island developing states (SIDS) has been an important priority for the UN because of their particular vulnerabilities.80

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18.36  The General Assembly, as the UN’s plenary body,81 has been the organ in which resolutions and agendas related to sustainable development have been adopted.82 The promotion and integration of sustainable development has been pursued through (p. 668) many UN departments and UN System organizations.83 The UN has also tried to apply sustainable development principles to its own operations.84

7.3  Poverty eradication 18.37  The theme of the eradication of poverty85 is closely related to sustainable development.86 The UN Millennium Declaration set the target of halving the number of people living on less than $1 a day between 1990 and 2015.87 The target was achieved at the global level,88 but some regions fell short.89 18.38  One of the main tools that the UN has employed in raising awareness of poverty is the use of thematic days90 and decades.91 The Human Rights Council (HRC) has been instrumental in bringing a human rights perspective to the eradication of poverty.92

7.4  Groups of countries in special situations 18.39  The UN’s work on economic wellbeing has been global in its approach, but has also paid special attention to two groups of countries: Least Developed Countries (LDCs) and Landlocked Developing Countries (LLDCs).93 (p. 669) 18.40  The LDCs are the poorest and weakest states.94 They have a combined population of more than 880 million people (12 per cent of the world population) but account for less than 2 per cent of world GDP and about 1 per cent of global trade in goods.95 The UN maintains a list of LDCs,96 which is reviewed every three years.97 18.41  The principal approach to helping LDCs has been the formulation of ‘Programmes of Action’.98 The UN Office of the High Representative for Least Developed Countries, Landlocked Developing Countries and Small Island Developing States (UN-OHRLLS) was established in 2001 as a follow-up mechanism to the Third Programme of Action.99 The key functions of the Office of the High Representative100 include assisting the SecretaryGeneral in ensuring the full mobilization and coordination of all parts of the UN system, with a view to facilitating the coordinated implementation of, and coherence in, the followup and monitoring of the Programme of Action for the Least Developed Countries at the country, regional, and global levels, and undertaking appropriate advocacy work. 18.42  The LDCs are among the poorest of the developing countries due to their remoteness from world markets.101 Once again, ‘Programmes of Action’ have been the tool (p. 670) employed by the UN.102 Unlike with LDCs, the 32 LLDCs cannot ‘graduate’ from their status. The focus is on addressing their development needs and challenges arising from their landlocked position, remoteness, and geographical constraints.103

8.  Conclusion 18.43  The UN’s role in improving economic wellbeing has faced two challenges. First, the abstract nature of the principle has led to competing interpretations and priorities for action. Second, the UN’s methods of handling economic issues have been diffuse, which has hampered effectiveness and led to states seeking to use other fora for economic and financial initiatives.104

Footnotes: 1

  UN Charter, Art 1(3). Member states refer to this provision when stressing the need for international cooperation in solving international problems of, inter alia, an economic nature, such as economic development and cooperation. See, eg, GA Res 2152 (XXI) (1966) regarding the UN Industrial Development Organization (UNIDO). Wolfrum, ‘Article 1’ in The Charter of the United Nations: A Commentary (eds Simma et al, 2012), 39 at para 31. The From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

UN estimates that ‘[a]s much as 70 per cent of the work of the UN system is devoted to accomplishing this mandate’: see at http://www.un.org/esa/about_esa.html. 2

  UN Charter, Art 55: ‘With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: a. higher standards of living, full employment, and conditions of economic and social progress and development; b. solutions of international economic, social, health, and related problems; and international cultural and educational cooperation.’ 3

  The UN has had a broad interpretation of ‘promoting’. Measures taken under Art 55 include recommending actions to states or international organizations; establishing new principles, programmes and institutions; technical assistance for development; cooperating within the UN, eg, between the General Assembly and the Economic and Social Council (ECOSOC), Charter of Economic Rights and Duties of States (GA Res 29/3281 (1974)); 7th Special Session of the United Nations General Assembly (UNGA) (GA Res S-7/3362 (1975)); Declaration on International Economic Cooperation (GA Res S-18/3 (1990)); International Development Strategy for the Fourth Development Decade (GA Res 45/199 (1990)). See Wolfrum, ‘Article 55’ in Simma et al (eds), n 1, paras 9, 24–7. 4

  Specialized agencies such as the World Bank provide technical assistance and help formulate policies, set standards, and mobilize funds. Funds and Programmes such as the United Nations Development Programme (UNDP) and the United Nations Children’s Fund (UNICEF) are actively involved in attaining goals set by member states, eg the Millennium Development Goals (MDGs) and now the Sustainable Development Goals (SDGs). Many UN programmes work in partnership with governments and non-governmental organizations (NGOs), such as the World Food Programme (WFP), the UN Population Fund (UNFPA), the UN Environment Programme (UNEP), and the UN Human Settlements Programme (UNHabitat). In the area of trade and development, work is carried out by the United Nations Conference on Trade and Development (UNCTAD) and the World Trade Organization (WTO). Coordination between the UN and the specialized agencies is achieved through the UN System Chief Executives Board for Coordination (CEB), which involves the SecretaryGeneral, the heads of the specialized agencies, Funds and Programmes, the International Atomic Energy Agency (IAEA) and the WTO. Within the Secretariat, the Department of Economic and Social Affairs (DESA) is the focal point and the Executive Committee of Economic and Social Affairs (ECESA) ‘aims to bring coherence and common approaches among United Nations entities engaged in normative, analytical and technical work in the economic and social field’ (http://www.un.org/esa/ ecesa/) (Secretary-General’s Letter to the President of the General Assembly (UN Doc A/ 51/829 (1997)). Important regional development and technical assistance work is carried out by the regional commissions: Economic Commission for Africa; Economic and Social Commission for Asia and the Pacific; Economic Commission for Europe; Economic Commission for Latin America and the Caribbean; Economic and Social Commission for Western Asia. 5

  The Secretary-General set up the UN Development Group (UNDG) in 1997, comprising the UN operational programmes and funds. The UNDP Administrator chairs the UNDG and reports to the Secretary-General and the CEB on progress. The Administrator of one of the specialized agencies functions as a vice-chair on a rotational basis. The UNDG meets regularly in full and through Working Groups. There is also an Advisory Group of 16 UNDG members to advise the UNDG Chair on operational issues. This UNDG convenes at the level

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of heads of agencies and at the Assistant Secretary-General/Assistant Director-General level (see at http://www.undg.org). 6

  See, eg, the UN’s work in relation to trade; balance of payments financing; overseas development aid and technical assistance; debt relief; environmental protection; sovereignty over natural resources; transfer of science and technology. The UN also has dedicated offices for developing countries: Office of the Special Adviser on Africa and the Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and Small Island Developing States. 7

  Beginning in 1960, the General Assembly has set a series of 10-year International Development Strategies known as Development Decades. In addition, there have been thematic decades emphasizing the need for progress in particular areas. See, eg, Second United Nations Decade for the Eradication of Poverty 2008–2017 (GA Res 62/205 (2007)); Secretary-General Report on Implementation (GA Res 69/204 (2014)); Second Industrial Development Decade for Africa 1991–2000 (GA Res 44/237 (1989), GA Res 47/177 (1992)). 8

  GA Res S-6/3201 (1974).

9

  There were, eg, questions over the legally binding nature of the Charter of Economic Rights and Duties of States (GA Res 29/3281 (1974)). Arbitral awards indicated it was not binding (Texaco Overseas Petroleum Company/California Asiatic Oil Company v Government of Libyan Arab Republic (1978) 17 ILM 1, at 29; Kuwait v American Independent Oil Company (1982) 21 ILM 976, at 1033). See Wolfrum, n 3, paras 28–35; Higgins, ‘The United Nations at 70: The Impact upon International Law’ (2016) 65 ICLQ 1. References to the NIEO were quietly dropped in the 1980s. See, eg 18th Special Session of the General Assembly, which indicated a rethinking of approach. 10

  At the Millennium Summit in September 2000, world leaders adopted MDGs, aimed at eradicating extreme poverty and hunger; achieving universal primary education; promoting gender equality and empowering women; reducing child mortality; improving maternal health; combating HIV/AIDS, malaria, and other diseases; and ensuring environmental sustainability through a set of eight targets to be achieved by 2015. The targets included cutting in half the proportion of those who earn less than a dollar a day; achieving universal primary education; eliminating gender disparity at all levels of education; and reducing child mortality while increasing maternal health. Strong progress was made towards these goals by 2015, but not all of them were fully achieved, and there were uneven results among regions and countries. See the analysis at http://www.un.org/millenniumgoals/. 11

  The SDGs are part of the 2030 Agenda for Sustainable Development adopted by world leaders in September 2015 (GA Res 70/1 (2015)). The Agenda calls on member states to achieve 17 SDGs by 2030. The SDGs aim at zero poverty, zero hunger, good health, quality education, gender equality, clean water and sanitation, affordable clean energy, decent work and economic growth, innovation, reduced inequalities, sustainable cities, responsible consumption, climate action, unpolluted oceans and land, and partnerships to achieve the goals. See at http://www.un.org/sustainabledevelopment/. The follow-up and review of the 2030 Agenda is the primary responsibility of the high-level political forum on sustainable development (HLPF). See Report of the Secretary-General, ‘Progress towards the Sustainable Development Goals’, E/2016/75, 3 June 2016, in which the Secretary-General outlined progress made with respect to each of the 17 SDGs. 12

  See also ch 2, ‘The General Assembly’, section 4, ‘Subordinate organs’.

13

  Delegates assigned to the Second Committee often cover the work of ECOSOC and the Funds and Programmes as well.

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14

  For the 70th session (2016), as an example, the Second Committee was dealing with macroeconomic policy questions (including international trade, international financial system, external debt sustainability and commodities), financing for development, sustainable development, human settlements, poverty eradication, globalization and interdependence, operational activities for development, and information and communication technologies for development. It also considered issues relating to Groups of Countries in special situations, such as the Least Developed Countries (LDCs), Landlocked Developing Countries (LLDCs), and permanent sovereignty over natural resources of the Palestinian people in the Occupied Palestinian Territory and of the Arab population in the occupied Syrian Golan. 15

  Typically, from the first week of October to the last week of November. Short extensions sometimes have to be granted. 16

  Permanent Mission of Switzerland, The PGA Handbook. A Practical Guide to the United Nations General Assembly (2011), 64. 17

  Most of these are adopted by consensus. The majority of the draft resolutions are tabled by the Chair of G-77 and China before they are negotiated (ibid, 64). 18

  Each report indicates the meetings at which the item was considered, summarizes the Committee’s consideration of the item, identifies the sponsors of draft resolutions, reports the vote, if any, of member states on draft texts, transmits the final version of draft resolutions and/or decisions recommended to the plenary for adoption: see at http:// www.un.org/en/ga/second/. 19

  For example, in 2015, the General Assembly adopted Res 69/209, 69/210, 69/211, 69/212 and 69/213 based on the report of the Second Committee (UN Doc A/69/468). 20

  G-77/China want development to remain at the core of the Committee’s work. They want a comprehensive agenda for the Committee in order to review implementation of commitments under different development initiatives. The EU, Canada, Japan, and the US would prefer the Second Committee to have a more streamlined agenda, removing ‘peripheral’ areas of work or those that are no longer relevant. 21

  UN Doc A/DEC/65/530, 2011. GA Res 68/1 (2010) provides that the ECOSOC and the General Assembly, especially its Second and Third Committees, should consider taking steps toward the rationalization of their agendas. The aim is to eliminate duplication and overlap, and promote complementarity in the consideration and negotiation of similar issues. 22

  See also ch 5, ‘The Economic and Social Council’.

23

  ECOSOC coordinates the 14 UN specialized agencies, nine functional commissions, and five regional commissions. 24

  See at http://www.un.org/esa/about_ecosoc.html.

25

  ECOSOC consults with over 4,000 registered NGOs. These consultations take place through official sessions, preparatory meetings, roundtables, and panel discussions: see at http://csonet.org. 26

  See, eg, the Commission on Sustainable Development (CSD), created at the request of the General Assembly in 1992 (GA Res 47/191 (1993)) (the CSD has since been replaced by the high-level political forum on sustainable development). See also ch 24, ‘Protecting the Environment’; Commission on Population and Development established by ECOSOC in its Res 3 (III) (1946).

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27

  ECOSOC’s role has been described as ‘complementary’ to the General Assembly (Rosenthal, ‘Economic and Social Council’ in The Oxford Handbook on the United Nations (eds Daws and Weiss, 2008), 136, at 138). Art 66(2) of the UN Charter provides: ‘[ECOSOC] may, with the approval of the General Assembly, perform services at the request of Members of the United Nations and at the request of specialized agencies.’ Its ability to carry out its functions has been undermined by the fact that its decisions and resolutions are not binding on member states or even on the specialized agencies established by the ECOSOC to carry out its functions (Luck, ‘Principal Organs’ in Daws and Weiss (eds), above, 661, at 666). Art 60 of the Charter illustrates the challenges facing ECOSOC. It reads: ‘Responsibility for the discharge of the functions of the Organization set forth in this Chapter shall be vested in the General Assembly and, under the authority of the General Assembly, in the Economic and Social Council, which shall have for this purpose the powers set forth in Chapter X.’ This ambiguous language ‘raises the vexing problem of the respective responsibilities of these two principal organs in the economic and social sector’ (Rosenthal, above, 138). 28

  For example, in the area of sustainable development (see section 7.2), ECOSOC describes its role as follows: ‘Within the UN system, ECOSOC has the main responsibility for following up on all major past international conferences linked to the three pillars of sustainable development, and will continue to do this alongside the implementation of the sustainable development goals. As a hub for the exchange of knowledge and mutual learning, it had an instrumental role in examining lessons learned from the Millennium Development Goals, assessed the transition into the post-2015 agenda, and currently considers the implementation of the 2030 Agenda. ECOSOC also explores the scope of a renewed global partnership and invites youth to share their views on their future’: see https://www.un.org/ecosoc/en/content/promotion-du-développement-durable. In the area of financing for development (see section 7.1), every two years, ECOSOC brings UN member states together in the Development Cooperation Forum to assess global trends and consider ways to enhance progress. 29

  See generally Rosenthal, ‘The Economic and Social Council of the United Nations: An Issues Paper’ (February 2005) Dialogue on Globalization 1, at 16 et seq and 25; Weiss, ‘ECOSOC is Dead, Long Live ECOSOC’ (December 2010) Dialogue on Globalization 1; Steven, ‘Strengthening ECOSOC to Meet the Challenges of the 21st Century’ (December 2012) NYU CIC 1; Tarasov and Achamkulangare, ‘Cooperation among The United Nations Regional Commissions’, JIU/REP/2015/3; Mounir Zahran et al, ‘South-South and Triangular Cooperation in the United Nations System’, JIU/REP/2011/3, paras 22 et seq. See also UN Secretary-General Report, Renewing the United Nations: A programme for reform, UN Doc A/51/950 (1997), paras 127–45. 30

  Stoll, ‘Chapter IX International Economic and Social Cooperation, Article 55(a) and (b)’ in Simma et al (eds), n 1, para 30. 31

  There is a discernible trend of member states gravitating towards the international financial institutions, like the World Bank and the International Monetary Fund (IMF), rather than the UN, for the formulation of economic policy and maintaining economic wellbeing: Woods, ‘Bretton Woods Institutions’ in Daws and Weiss (eds), n 27, 233; Jolly, ‘Human Development’ in Daws and Weiss (eds), n 27, 634. In GA Res 50/227 (1996), the General Assembly encouraged ECOSOC to hold ‘special high level meetings’ with the World Bank and the IMF. 32

  The Resolution is entitled ‘Review of the implementation of General Assembly resolution 61/16 on the strengthening of the Economic and Social Council’. The adoption concluded over nine months of consultations led by the then President of the General Assembly and the Permanent Representatives of Guyana and Belgium. The resolution recognizes the lead role of ECOSOC in identifying emerging challenges and promoting reflection, debate, and From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

innovative thinking on development, as well as in achieving a balanced integration of the three dimensions of sustainable development. It asked ECOSOC to provide substantive leadership to the UN system through adoption of an annual theme; to stagger the segments of the Council throughout the year; and to convene an integration segment to monitor and promote the integration of the three dimensions of sustainable development. 33

  Murphy (ed), The United Nations Development Programme: A Better Way? (2006).

34

  It undertakes activities in almost 170 countries, and in 2014 had around 8,000 staff: see at http://www.undp.org/content/undp/en/home/operations/about_us.html. See also UNDP Strategic Plan: 2014–17, at 51, available at http://www.undp.org/content/dam/undp/library/ corporate/UNDP_strategic-plan_14-17_v9_web.pdf?download. 35

  In 1946, the General Assembly mandated ECOSOC to study how expert advice could be provided in the economic, social, and cultural fields to those of its member states who wanted assistance (GA Res 52 (I) (1946)). At the same time, the General Assembly decided to transfer the advisory social welfare functions of the United Nations Relief and Rehabilitation Administration (UNRRA) to the UN (GA Res 58 [I] (1946)). Based on ECOSOC’s preparatory work, the General Assembly decided on funds for specific development-related functions to be performed by the UN Secretary-General in cooperation with the specialized agencies (GA Res 200 (III) (1948)). In 1949, the Expanded Programme of Technical Assistance for Economic Development of Under-Developed Countries (EPTA) (GA Res 304 (IV) (1949)) was established as a voluntary fund with the UN Secretariat, through which specialized agencies and the Secretariat’s own technical assistance projects were funded. As demands for development assistance increased with decolonization, the UN reached a compromise between those member states wanting the UN itself to offer long-term economic assistance and those that preferred an approach within the framework of the World Bank Group. The General Assembly created the UN Special Fund (GA Res 1240 (XIII) (1958)) with its own intergovernmental governing body. In 1965, the General Assembly consolidated the Special Fund and the EPTA to form the UNDP (GA Res 2029 (XX) (1965)) to streamline activities. Schoiswohl, ‘UNDP’ (2013) MPEPIL, paras 2–5. 36

  The UNDP’s overall policies are established by the General Assembly and ECOSOC, but it operates on the basis of its own financial rules and regulations (UNDP Governing Council Decision 72/21 (28 June 1972), as revised by its Executive Board in 2000 and 2011 (UNDP Executive Board Decision 2000/4 and UNDP Executive Board Decision 2011/33)). The Executive Board is made up of representatives from 36 countries around the world who serve on a rotating basis. The UNDP Administrator has the delegated authority of the UN Secretary-General as the chief administrative officer of the organization (UN Charter, Art 97) in human resource matters, including the taking of disciplinary action. UNDP staff members are subject to UNDP staff regulations and rules, which are based on those of the UN Secretariat. Schoiswohl, n 35, para 11. 37

  From 1966 to 1999, the UNDP Administrator was always a US national. Since 1999, successive Administrators have been from the UK, Turkey, and New Zealand. He/she is appointed by the UN Secretary-General for a term of four years, and confirmed by the UN General Assembly. 38

  See sections 7.2, ‘Sustainable development’ and 7.3, ‘Poverty eradication’.

39

  Of $22.6 billion in total estimated expenditure for 2014–17, 88.8 per cent was planned for development activities (DP/2013/41 (2013)). In 2015, the top government contributors were Japan, the US, the UK, Argentina, the EU, Norway, Germany, Sweden, Switzerland,

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and Canada (in order of size of contribution): see at http://www.undp.org/content/undp/en/ home/ourwork/funding/top-contributors/. 40

  Schoiswohl, n 35, para 25.

41

  It has moved from a number of thematic ‘practice areas’ to three priorities: sustainability, democratic governance, and crisis response and prevention. In 2014, UNDP was ranked at the top of the annual Aid Transparency Index of development agencies (UNDP Annual Report 2014–2015). 42

  GA Res 1995 (XIX) (1964). The members of UNCTAD are those 194 states that are members of the UN or of the specialized agencies, or of the IAEA. While UNCTAD is a subsidiary organ of the General Assembly, its level of delegated authority is like that of other Geneva-based departments of the UN Secretariat. The organigramme of the UN places UNCTAD as part of its Funds and Programmes, but it has a ‘unique status’. This is seen in the fact that its Executive Head is a ‘Secretary-General’, instead of a DirectorGeneral as is usually the case for Funds, Programmes, and specialized agencies. The Secretary-General of UNCTAD is accountable to the UN Secretary-General, but is autonomous from Headquarters in the delivery of substantive and technical cooperation programmes approved by the intergovernmental bodies of UNCTAD. He/she is directly responsible to the Conference, to the Board, and to member states, and through the Conference and the Board to the General Assembly, for the execution of these programmes. Fontaine Ortiz, ‘Review of Management and Administration in the United Nations Conference on Trade and Development (UNCTAD)’, JIU/REP/2012/1, paras 27–8. 43

  Thirty-six delegations from developing countries organized the non-UN Cairo Conference in 1962. The final Declaration called for an international conference within the framework of the UN, on ‘all vital questions related to international trade, primary commodity trade and economic relations between developing and developed countries’. Later that year, the General Assembly decided to convene a conference on trade and development, and established a preparatory committee for it. United Nations, The History of UNCTAD 1964–1984 (1985). See also Maswood, Trade, Development and Globalization (2014). 44

  The Accra Accord refers to them (at para 179) as follows: ‘These three pillars should contribute, from a trade and development perspective, to the integrated and coordinated implementation of and follow-up to the outcomes of the major United Nations conferences and summits in the economic, social and related fields, as well as to the achievement of the internationally agreed development goals, including the Millennium Development Goals.’ 45

  According to GA Res 1995 (XIX) (1964), at para 24: ‘Decisions of the Conference on matters of substance shall be taken by a two-thirds majority of the representatives present and voting. Decisions of the Conference on matters of procedure shall be taken by a majority of the representatives present and voting. Decisions of the Board shall be taken by a simple majority of the representatives present and voting.’ After the 7th session (1987), consensus became the de facto rule for Conferences and the Board. At the Conference, member states may enter reservations after the adoption of resolutions and decisions. Fortin, ‘United Nations Conference on Trade and Development (UNCTAD)’ (2013) MPEPIL. 46

  Its flagship reports are the Trade and Development Report, Least Developed Countries Report, and World Investment Report. It also has a well-respected series on Economic Development in Africa. Ministries tend to place great weight on UNCTAD investment flow figures, finding them to be of high quality. 47

  UNCTAD/IAOS/2008/2, para 178.

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48

  See at http://unctad.org/en/Pages/AboutUs.aspx.

49

  This brings members of the international investment community together to discuss challenges and opportunities, and to promote investment policies and partnerships for sustainable development and equitable growth (ibid). 50

  Its annual regular budget consists of approximately US$74 million from the UN and US$39.5 million of extra-budgetary technical assistance funds. Interestingly, in 2015, contributions to trust funds by developing countries accounted for about 50.7 per cent of the total, while those of developed countries represented 24.6 per cent. Other contributions came from the European Commission, international organizations, multilateral donors, NGOs, and the private sector (UNCTAD Annual Report 2015, 8). 51

  The secretariat is organized into five main units, corresponding to the sub-programmes of the organization’s programme of work: the Division on Globalization and Development Strategies; the Division on Africa, the Least Developed Countries and Special Programmes; the Division on Trade in Goods and Services, and Commodities; the Division on Investment and Enterprise Development; and the Division on Technology and Logistics. In 2015, it had 489 staff members (ibid, 3). 52

  UNCTAD, ‘Membership of UNCTAD and membership of the Trade and Development Board’, TD/B/INF.235, 24 June 2016. 53

  Developed countries want to avoid enlarging the scope and coverage of developmentrelated issues such as the environment. Developing countries are in favour of an evolving mandate to adapt to new and emerging issues in the context of sustainable development. Fontaine Ortiz, n 42, para 20. 54

  The UNCTAD secretariat has reduced its own capacity for research and analysis findings and become more a broker of expertise, contracting consultants and convening expert meetings (ibid, para 16). 55

  A 2012 JIU report noted the creation of a silo structure and a weak communication culture between the top management and staff (ibid, para 96). 56

  UNCTAD itself does not have authority to adopt legally binding international instruments, but GA Res 1995 (XIX) (1964) gives it the function of initiating action for the negotiation and adoption of multilateral legal instruments in the field of trade. UNCTAD has tended to carry out the substantive preparatory work and either convene a UN negotiating conference that could adopt binding decisions (eg, the creation of the Common Fund for Commodities (1980); the Convention on a Code of Conduct for Liner Conferences (1974); the United Nations Convention on International Multimodal Transport of Goods (1980); the United Nations Convention on Conditions for Registration of Ships (1986); and the United Nations Convention on Maritime Liens and Mortgages (1993)), or refer the matter to another entity in the system with authority to make such decisions (eg, the Generalized System of Preferences, negotiated in UNCTAD and later approved by GATT). UNCTAD has also produced non-binding international instruments that play a role in international economic relations, such as the Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices. Further, it has adopted policy statements that provide guidance to member states (eg, the Trade and Development Board’s decisions about debt relief). In recent years UNCTAD has tended to limit the number of agreed conclusions on policy matters, and has concentrated the decision-making process in the Board and the Commissions on the work programme of the secretariat. Some suggest this has resulted in the reduction of the influence of the organization. Fortin, n 45, paras 37–9.

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57

  As Fortin points out (n 45, paras 42–3), these principles are important challenges to some of the traditional assumptions about international law, such as the assumption of a unitary legal regime and of equality, reciprocity, and non-discrimination in international economic relations. UNCTAD has helped develop the concepts of duality of legal norms (different norms for the relations among developed countries and for the relations between developed and developing countries); compensatory inequality; non-reciprocity; and differential treatment. 58

  GA Res 2152 (XXI) (1966). See generally, Browne, United Nations Industrial Development Organization: Industrial Solutions for a Sustainable Future (2012). 59

  Bredel and Kitaoka, ‘UNIDO’ (2007) MPEPIL, para 1.

60

  There was a key question as to the relationship of this ‘autonomous organization within the United Nations’ (GA Res 2152 (XXI) (1966), para 1) to the other organs of the UN. There was intense debate about how much autonomy UNIDO would and should have, under the special resolution establishing it and under the UN Charter, from the UN SecretaryGeneral. With UNIDO’s conversion into a specialized agency, these legal problems were resolved. Bredel and Kitaoka, n 59, para 44. 61

  This was part of the institutional arrangements of the Lima Plan of Action on Industrial Development and Cooperation, and with a view to assisting in the establishment of a new international economic order (Bredel and Kitaoka, n 59, paras 3–5). 62

  Pursuant to Arts 57 and 63 of the UN Charter and Art 18 of the UNIDO Constitution. The objections from developed countries as to the necessity of a specialized agency delayed the ratification process. The UN General Assembly, by resolutions adopted in 1982 and 1984, had to call for a series of formal consultations among prospective member states. Pursuant to Art 25, the UNIDO Constitution entered into force when at least 80 states, having deposited instruments of ratification, acceptance, or approval, had notified the UN Secretary-General that they had agreed, after consultation among themselves, that the UNIDO Constitution should enter into force. A relationship agreement was negotiated between the UN and UNIDO and approved by ECOSOC, the General Conference, and the General Assembly in December 1985 (Bredel and Kitaoka, n 59, para 6). 63

  UNIDO Annual Report 2014, p vii, based on Art 1 of the UNIDO Constitution. According to the Constitution, UNIDO is to: (a) assist developing countries in the formulation of development, institutional, scientific, and technological policies and programmes in the field of industrial development; (b) analyze trends, disseminate information, and coordinate activities in their industrial development; (c) act as a forum for consultations and negotiations directed towards the industrialization of developing countries; and (d) provide technical cooperation to developing countries for the implementation of their development plans for sustainable industrialization in their public and private sectors. 64

  As of January 2017.

65

  These states have not rejoined UNIDO. These high-profile withdrawals were accompanied by a decline in multilateral development assistance. A weak management structure and the lack of focus and integration of UNIDO’s activities aggravated the crisis (Bredel and Kitaoka, n 59, paras 7–8). UNIDO’s member states responded by adopting the Business Plan on the Future Role and Functions of UNIDO in 1997 (UNIDO Doc IDB17/25). 66

  UK Government, ‘Multilateral Aid Review: Assessment of the United Nations Industrial Development Organisation’, February 2011. Lithuania also withdrew in that period. 67

  New Zealand assessed UNIDO’s performance as ‘mediocre’: NZ Government, International treaty examination of the United Nations Industrial Development Organization

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(UNIDO), 30 November 2012. A number of other states have never joined UNIDO, including Singapore, Iceland, Estonia, Latvia, Solomon Islands, Palau, Micronesia, and Nauru. 68

  The consensus covered: mobilizing domestic financial resources for development; mobilizing international resources for development (foreign direct investment and other private flows); international trade as an engine for development; increasing international financial and technical cooperation for development; external debt; and addressing systemic issues (UN Doc A/CONF.198/11, 2002, Annex). 69

  2008 Doha Declaration on Financing for Development, the UN Conference on Sustainable Development, and the UN development agenda beyond 2015. The third International Conference on Financing for Development adopted the 2015 Addis Ababa Action Agenda. The Agenda adopts a new social compact to provide social protection and essential public services for all, commitments to the target of spending 0.7 per cent of gross national income on aid, and a commitment to collect more taxes, fight tax evasion, and deal with illicit financial flows (UN Doc A/70/320, 2015). 70

  GA Res 57/273 (2003).

71

  See at http://www.un.org/esa/ffd/overview/mission-statement.html.

72

  Only a handful of countries have achieved the aid spending target, and the tax goals are not complemented by the creation of an international tax body. Civil Society Response to the Addis Ababa Action Agenda on Financing for Development, 16 July 2015. 73

  See, generally, ch 17, ‘Improving Social Conditions’, and ch 24, ‘Protecting the Environment’. See Subedi, ‘Commission on Sustainable Development’ (2013) MPEPIL; Murphy, ‘Capacity, Consensus, Crises, and Consequences’ in Murphy (ed), n 33, 139; Klingebie, Effectiveness and Reform of the United Nations Development Programme (UNDP), (1999); Barral, ‘Sustainable Development in International Law: Nature and Operation of an Evolutive Legal Norm’ (2012) 23 EJIL 377. 74

  UN Doc A/68/79–E/2013/69 (2013), para 6.

75

  1972 UN Conference on the Human Environment. See Report of the United Nations Conference on the Human Environment (Stockholm Declaration on the Human Environment), Stockholm, 16 June 1972 (UN Doc A/CONF.48/14/Rev.1). 76

  1992 United Nations Conference on Environment and Development (UNCED), also known as the ‘Rio Earth Summit’. The theme for the Conference was based on the 1987 Brundtland Report, Report of the World Commission on Environment and Development: Note by the Secretary-General, Annex ‘Our Common Future’ (UN Doc A/42/427, 4 August 1987). See also GA Res 37/7 (1982) (World Charter for Nature); GA Res 41/128 of 4 December 1986 (Declaration on the Right to Development); GA Res 42/187 (1987) (Report of the World Commission on Environment and Development); Report of the UN Conference on Environment and Development, Annex I ‘Rio Declaration on Environment and Development (UN Doc A/CONF.151/26 (vol I) (1992); Report of the United Nations Conference on Environment and Development, Annex II ‘Agenda 21’ (UN Doc A/CONF. 151/26 (vol I), 12 August 1992). In 1993 the General Assembly established the CSD as the UN body for monitoring and promoting the implementation of the 1992 Rio outcomes, including Agenda 21. 77

  The 2002 World Summit on Sustainable Development. This Summit led to the adoption of the Johannesburg Plan of Implementation (JPOI). See also Annex to the letter dated 6 August 2002 from the Permanent Representative of Bangladesh to the United Nations and the Chargé d’affaires a.i. of the Permanent Mission of the Netherlands to the United Nations addressed to the Secretary General of the United Nations, ‘ILA New Delhi

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Declaration of Principles of International Law relating to Sustainable Development’ (UN Doc A/57/329, (2002)). 78

  The 2012 Rio+20 Conference. The Conference decided to create a high-level political forum on Sustainable Development to replace the CSD. It held its first meeting on 24 September 2013. In 2016 the General Assembly passed GA Res 70/299, which set out the themes for the remainder of the current cycle of the high-level political forum. For 2017, the theme is ‘Eradicating poverty and promoting prosperity in a changing world’. At the Rio+20 Conference, member states launched a process to develop SDGs to build upon the MDGs. In GA Res 70/299 (2016), the General Assembly decided that the high-level political forum should ‘discuss a set of Goals and their interlinkages, including, if appropriate, with other Goals … with a view to facilitating an in-depth review of progress made on all Goals over the course of a four-year cycle’. Such discussions are to be ‘without prejudice to the integrated, indivisible and interlinked nature of the Sustainable Development Goals’. 79

  See, eg, GA Res 55/2 (2002) (United Nations Millennium Declaration).

80

  See Barbados Plan of Action and Mauritius Strategy. The Third International Conference on Small Island Developing States (2014) provided the SIDS accelerated modalities of action (‘SAMOA’) Pathway. UN Doc A/CONF.223/10 (2014) and GA Res 69/15 (2014). 81

  Cf the smaller membership of 54 member states in ECOSOC.

82

  On 25 September 2015, the General Assembly adopted the 2030 Agenda for Sustainable Development, along with a set of 17 SDGs and 169 associated targets. 83

  For example, UN-Habitat, UNDP, the International Labour Organization (ILO), the United Nations Educational, Scientific and Cultural Organization (UNESCO), the Food and Agriculture Organization of the United Nations (FAO), the International Fund for Agricultural Development (IFAD), UNEP, and the World Bank. 84

  Efforts have also been made to assess the environmental impact in UN travel, procurement, and the use of information technology. UN Doc A/68/79–E/2013/69, 2013, para 22. 85

  Karimova and Golay, ‘Principle 5’ in The Rio Declaration on Environment and Development: A Commentary (ed Viñuales, 2015), 181; Jouannet, ‘How to Depart from the Existing Dire Condition of Development’ in Realizing Utopia: The Future of International Law (ed Cassese, 2012), 403; and Howse, ‘Fragmentation and Utopia: Towards an Equitable Integration of Finance, Trade, and Sustainable Development’ in Cassese (ed), above, 427. 86

  Eradication of poverty forms Principle 5 of the 1992 Rio Declaration on Environment and Development. The General Assembly, in its 1997 Programme for the Further Implementation of Agenda 21 (para 27), made poverty eradication an overriding theme of sustainable development. ‘Combating poverty’ is the topic of ch 3 of Agenda 21. It is also in commitment 2 of the Copenhagen Declaration on Social Development. 87

  GA Res 55/2 (2000).

88

  The number of people living in extreme poverty fell from 1.9 billion to 835.5 million in the period from 1990 to 2015. The proportion of the world’s population living on less than $1.25 a day had declined to 11.5 per cent by 2015, down from 14.5 per cent in 2011 and 36.4 per cent in 1990. UN Doc A/70/281, 2015, para 3. 89

  For example, in the Latin American and Caribbean region. In the Middle East and Northern Africa region, poverty rates began to trend upwards due to conflict situations.

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Poverty and inequality also rose in many high-income countries (UN Doc A/70/281, 2015, paras 5–6). 90

  The date 17 October is the International Day for the Eradication of Poverty. It was established by GA Res 47/196 (1993). 91

  First United Nations Decade for the Eradication of Poverty (1997–2006) and Second United Nations Decade for the Eradication of Poverty (2008–17). 92

  The HRC adopted the Guiding Principles on Extreme Poverty and Human Rights in HRC Res 21/11 (2012). The idea for the Guiding Principles originated in the former Commission on Human Rights in 2001, and their content was discussed for more than a decade with states, civil society organizations, UN agencies, and communities living in poverty. The final draft was prepared by the UN Special Rapporteur on extreme poverty and human rights (UN Doc A/HRC/21/39 (2012)). 93

  Hébié, ‘Principle 6’ in Viñuales (ed), n 85, 207. See also Massade (ed), ‘The Debt Problem: Acute and Chronic Aspects’ (1985) 16 Journal of Development Planning 1; and Mounir Zahran, ‘Towards More Coherent United Nations System Support to Africa’, JIU/ REP/2009/5. (Also Tang and Yussuf, ‘New Partnership for Africa’s Development’, JIU/REP/ 2005/8.) 94

  The category of LDCs was established in 1971 by the UN General Assembly and is based on three criteria: per capita gross national income (GNI), human assets, and economic vulnerability to external shocks. The income criterion is based on a three-year average estimate of GNI per capita for the period 2011–13, based on the World Bank Atlas method (under $1,035 for inclusion, above $1,242 for graduation as applied in the 2015 triennial review). The Human Assets Index (HAI) is based on indicators of: (i) nutrition: percentage of population undernourished; (ii) health: mortality rate for children aged five years or under; (iii) education: the gross secondary school enrolment ratio; and (iv) adult literacy rate. The Economic Vulnerability Index (EVI) is based on indicators of: (i) population size; (ii) remoteness; (iii) merchandise export concentration; (iv) share of agriculture, forestry, and fisheries; (v) share of population in low elevated coastal zones; (vi) instability of exports of goods and services; (vii) victims of natural disasters; and (viii) instability of agricultural production. See further at http://www.un.org/en/development/desa/policy/cdp/ldc/ ldc_criteria.shtml. The World Bank has used the LDC classification, but has also developed its own ways of classifying countries by, eg, income groupings. 95

  See at http://unohrlls.org/about-ldcs/.

96

  As of May 2016, the list of LDCs contained 48 countries: 34 in Africa, 13 in Asia and the Pacific, and 1 in Latin America. 97

  The Committee for Development Policy (CDP), a subsidiary body of ECOSOC, reviews the category of LDCs every three years and monitors their progress after graduation from the category. To be recommended for graduation, a country must be found eligible at two successive triennial reviews by the CDP. See at http://unohrlls.org/about-ldcs/criteria-forldcs/. 98

  First United Nations Conference on the LDCs 1981 (Substantial New Programme of Action for the 1980s for the LDCs); Second United Nations Conference on the Least Developed Countries (LDC-II) 1990 (Paris Declaration and the Programme of Action for the LDCs for the 1990s); Third United Nations Conference on the Least Developed Countries (LDC-III) 2001 (Brussels Declaration and the Brussels Programme of Action for the LDCs for the Decade 2001–2010); Fourth United Nations Conference on the Least Developed Countries (LDC-IV) 2011 (Istanbul Programme of Action and the Istanbul Declaration).

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99

  GA Res 56/227 (2002).

100

  UN Doc A/56/645 (2001).

101

  Of the 31 LLDCs, 16 are classified as least developed. They have a combined population of 440 million. See at http://unohrlls.org/about-lldcs/country-profiles/. 102

  The Almaty Programme of Action and the Almaty Ministerial Declaration came from a 2003 Conference. The Vienna Programme of Action for the decade 2014–24 (GA Res 69/137) succeeded the Almany Programme. It sets out six priority areas: fundamental transit policy issues; infrastructure development and maintenance; international trade and trade facilitation; regional integration and cooperation; structural economic transformation; and means of implementation (UN Doc A/70/305, 2016). 103

  UN Doc GA Res 70/217, 2015, preambular para 2.

104

  Peterson, The UN General Assembly (2006), 129. A long line of proposals to redefine the relationship among the General Assembly, the Second and Third Committees, and ECOSOC have had little impact.

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Part 3 The United Nations: What it Does, 19 Democratic Governance Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): Self-determination — Civil and political rights — Democracy — Rule of law

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(p. 671) 19  Democratic Governance 1.  Underpinnings of democratic governance 19.01 2.  Assistance of the United Nations 19.07 3.  Areas of UN assistance 19.09 Boutros Boutros-Ghali, An agenda for democratization, UN Doc A/51/761, 20 December 1996, Annex; Burchill (ed), Democracy and International Law (2006); Crawford, ‘Democracy and International Law’ (1993) 64 BYIL 113; Fox, ‘Democracy, Right to, International Protection’ in Max Planck Encyclopedia of Public International Law (MPEPIL) (online); Fox and Roth (eds), Democratic Governance and International Law (2000); Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86 AJIL 46; Guidance Note of the Secretary-General on Democracy (11 September 2009); Higgins, ‘Democracy and the United Nations’ (2015) 4 Cambridge JICL 215; Joyner, ‘The United Nations and Democracy’ (1999) 5 Global Governance 333; Knight, ‘Democracy and Good Governance’ in The Oxford Handbook on the United Nations (eds Daws and Weiss, 2007); Mancini, ‘Promoting Democracy’ in The UN Security Council in the 21st Century (eds von Einsiedel, Malone, and Stagno Ugarte, 2016); Marks, ‘What has Become of the Emerging Right to Democratic Governance?’ (2011) 22 EJIL 507; Newman and Rich (eds), UN Role in Promoting Democracy: Between Ideals and Reality (2004); Reports of the SecretaryGeneral, Support by the United Nations system of the efforts of governments to promote and consolidate new or restored democracies; White, ‘The United Nations and Democracy Assistance: Developing Practice within a Constitutional Framework’ in Democracy Assistance: International Cooperation for Democratization (ed Burnell, 2000).

1.  Underpinnings of democratic governance 19.01  There are a number of different definitions of democracy.1 According to the Vienna Declaration and Programme of Action, democracy is ‘based on the freely expressed (p. 672) will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives’.2 The UN has recognized that no single model of democracy should be copied from any one state.3 Democracy ‘is a dynamic social and political system whose ideal functioning is never fully “achieved”’.4 19.02  The word ‘democracy’ cannot be found in the UN Charter. Nonetheless, democratic principles are ‘woven throughout the normative fabric of the United Nations’ and are grounded in the Charter.5 One of the purposes of the UN is the development of (p. 673) friendly relations among nations, ‘based on respect for the principle of equal rights and selfdetermination of peoples’.6 The right of peoples to self-determination is expanded upon in other instruments.7 The right to self-determination has an internal component to it in addition to its external component.8 The ‘democratic entitlement’ has developed from, inter alia, the right of peoples to self-determination.9 Nonetheless, democracy and the promotion of democracy are controversial issues at the UN and amongst certain UN member states.10 19.03  Democratic governance is also based on individual rights in international human rights law. Article 21 of the Universal Declaration of Human Rights (UDHR) provides that ‘[e]veryone has the right to take part in the government of his country, directly or through freely chosen representatives’, that ‘[t]he will of the people shall be the basis of the authority of government’, and that ‘this will shall be expressed in (p. 674) periodic and

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genuine elections which shall be by universal and equal suffrage’. Article 25 of the ICCPR builds on Article 21 of the UDHR. It provides: Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a)  To take part in the conduct of public affairs, directly or through freely chosen representatives; (b)  To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c)  To have access, on general terms of equality, to public service in his country. 11

19.04  This Article ‘lies at the core of democratic governance based on the consent of the people and in conformity with the principles of the Covenant’.12 19.05  Democratic governance ‘combines the principles and processes of democracy with the institutions and processes of governance’.13 Good governance is ‘participatory, transparent, accountable and effective. It promotes the rule of law and equal justice under the law and ensures that political, social and economic priorities are based on broad consensus in society.’14 The Secretary-General has identified 11 principles of good governance, which also reflect the ‘fundamental principles of a democratic society’, namely: (1) an effective public sector; (2) accountability/transparency of processes and institutions; (3) effective participation of civil society/political empowerment; (4) effective decentralization of power; (5) access to knowledge, information and education; (6) political pluralism/freedom of association and expression; (7) rule of law/respect for human rights; (8) legitimacy/consensus; (9) attitudes and values fostering responsibility, solidarity and tolerance; (10) equity/voice for the poor; (11) gender equality.15 The close relationship between democracy and good governance is thus evident.16 (p. 675) 19.06  Democratic governance also serves to reinforce other purposes and principles of the UN.17 Democratic governance promotes peace;18 and poor governance is a source of armed conflict.19 Democracy, development, and human rights have been recognized as ‘interdependent and mutually reinforcing’.20 Democracy is considered ‘vital’ for the promotion and protection of human rights.21

(p. 676) 2.  Assistance of the United Nations 19.07  Although democratic principles are to be found in the UN Charter and democratic governance reinforces other purposes of the UN, the promotion of democracy on the part of the UN was, and is, sensitive.22 Nonetheless, the UN has long played a role ‘in assisting states in their efforts to promote and consolidate new or restored democracies’.23 During the period of decolonization in particular, the UN observed and supervised numerous plebiscites, referenda, and elections.24 19.08  A role for the UN in the promotion of democracy was explicitly recognized at the end of the Cold War, in particular with the adoption of General Assembly resolutions on ‘[e]nhancing the effectiveness of the principle of periodic and genuine elections’;25 and with the request of the General Assembly to the Secretary-General in 1994 to study ‘the ways and mechanisms in which the United Nations system could support the efforts of Governments to promote and consolidate new or restored democracies’ and to prepare a

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report on the subject.26 A couple of years later, in 1996, Secretary-General Boutros BoutrosGhali published An agenda for democratization, which, inter alia, aimed to ‘deepen understanding of United Nations efforts in favour of (p. 677) democratization’.27 Writing in 2003, Secretary-General Kofi Annan indicated that the promotion of democracy would be ‘one of the main goals’ of the UN in the twenty-first century.28 Since 2003, however, the UN has shifted its focus away from democracy and democratization and towards good governance and the rule of law.

3.  Areas of UN assistance 19.09  In 2009, Secretary-General Ban Ki-moon noted: Democracy needs strong, accountable and transparent institutions of governance, based on the rule of law, and including an accountable executive, an effective legislature and an independent and impartial judiciary, efficient and inclusive public administration, as well as an informed, empowered and politically active civil society and population.29 It involves a long-term commitment to the society in question.30 19.10  Democracy is thus linked to good governance and the rule of law; and the rule of law has become increasingly central to the work of the UN, including outside the context of democratic governance.31 The UN assists with governance and rule of law (p. 678) activities in two broad contexts: peacekeeping and peacebuilding; and development.32 A range of democracy, good governance and rule of law assistance activities have been provided.

3.1  Political pluralism 19.11  Political pluralism ‘requires that more than one political party participate in elections and play a role in governance’.33 States that seek ‘to promote or consolidate processes of democratization are often involved in a transition from a single party system of (p. 679) government to a multiparty system’.34 In such cases, the UN can and has provided training for members of political parties and political movements.35 However, such involvement carries the risk that the UN will be accused of interference in the political affairs of the state or of favouritism towards one political party. Accordingly, the provision of training to political parties is sometimes seen as a task that is better left to others, such as non-governmental organizations.36

3.2  Electoral assistance 19.12  The UN has provided several different types of electoral assistance since its creation, namely the organization and conduct of elections, supervision of elections, verification and certification of elections, observation of elections, coordination of and support for observers, and technical assistance; although by September 2016, some of these types of assistance were rarely provided.37 For a time, the focus of UN electoral assistance efforts was on observation of elections. However, it was recognized that election observation alone would not suffice for democratization and good governance to flourish.38 19.13  UNDP and the Electoral Assistance Division of the Department of Political Affairs (DPA) play a central role in electoral assistance.39 For its part, the Security Council has included electoral assistance activities in the mandates of peacekeeping missions.40 The UN has also acknowledged the role that intergovernmental and non-governmental organizations play in election observation.41

(p. 680) 3.3  Strengthening and building institutions

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19.14  Free and fair elections are a necessary part of democratization and good governance; however, they are not sufficient in and of themselves. Strong institutions also enable democratization and good governance and states increasingly request assistance from the UN in respect of the building and strengthening of institutions. Accordingly, the UN has assisted with the creation of new institutions and the re-shaping of existing ones.42 It has further assisted with the creation and strengthening of democratic structures of government.43 It has supported the accountability and transparency of governance.44 It has also assisted states with capacity-building and the reform of the civil service.45

(p. 681) 3.4  Civic education 19.15  Transition from an authoritarian regime to a multi-party system requires public information and civic education. Voters might not be aware of the differences between and the ‘comparative merits of single party and multiparty systems of government’.46 Civic education enables voters to become aware of the choices that are open to them.47

3.5  Civil society 19.16  Civil society48 can play an important role in democratization efforts and good governance, for example by enabling more transparent and accountable governance.49 The Secretary-General has thus indicated that ‘[a] freely functioning, organized, vibrant and responsible civil society is essential for a democracy’.50 Accordingly, the UN has sought to assist in the strengthening of civil society.51 Nevertheless, it has recognized that the development of civil society can take some time.52

(p. 682) 3.6  Free and independent media 19.17  Free and independent media constitute another essential aspect of effective democratization, good governance, and the rule of law.53 Accordingly, the UN has assisted governments with the creation of conditions in which the media can fulfil their role, and has provided training for the media.54

3.7  Promoting the rule of law 19.18  The rule of law has been described as a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.55 19.19  The rule of law has been identified as a critical component of democratization and good governance.56 At the same time, institutions based on the rule of law can prove challenging for new or restored democracies. Furthermore, public confidence in relevant institutions can be low, given the public’s prior experience with such institutions. (p. 683) Accordingly, the UN has increasingly provided technical assistance and capacity-building for the development of the rule of law.57

3.8  Protection and promotion of human rights 19.20  The link between human rights and democracy has long been recognized.58 Article 21(3) of the UDHR provides: The will of the people shall be the basis of the authority of government; this shall be expressed in periodic and genuine elections which shall be universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

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19.21  The status of human rights in a state is also seen as ‘an important barometer of a healthy democracy’.59 Accordingly, part of the democratization process (p. 684) involves the protection and promotion of human rights.60 Furthermore, human rights, democracy, and the rule of law ‘are independent and mutually reinforcing’.61 The OHCHR plays a key role in this regard.62 The empowerment (p. 685) of women and the promotion of women’s rights is also an integral part of UN efforts.63

Footnotes: 1

  ‘Etymologically derived from the Greek word demokratia, democracy is, in its basic understanding, indicative of a system where the people (demos) exercise rule (kratos)’: Report of the United Nations High Commissioner for Human Rights, Study on common challenges facing States in their efforts to secure democracy and the rule of law from a human rights perspective, UN Doc A/HRC/22/29, 17 December 2012, para 6. However, the word ‘democracy’ can mean different things to different people. See, eg, Held, Models of Democracy (2006); Joyner, ‘The United Nations and Democracy’ (1999) 5 Global Governance 333, at 334–5. In particular, a distinction is sometimes made between procedural democracy, with a focus on elections and associated rights of political participation, and substantive democracy, which includes a broad range of human rights. See Fox, ‘Democracy, Right to, International Protection’ in MPEPIL, paras 8–13. Marks, ‘International Law, Democracy and the End of History’ in Democratic Governance and International Law (eds Fox and Roth, 2000), 558, has noted: ‘The democratic component of liberal democracy comes to revolve, principally, around elections. … According to some political theorists, democracy entails not just the right to participate in the selection of national government, but also the right to participate directly in the decision-making affecting one. For other theorists, democracy involves not just the process of selecting governments but also the process of connecting people with their governments through civil society. Still other theorists emphasize that democracy requires not just the right to vote and stand for election and associated civil liberties, but also the whole range of further rights that actually enable participation in public life on a footing of equality.’ 2

  Vienna Declaration and Programme of Action (1993), para 8. See also World Summit Outcome, GA Res 60/1 (2005), para 135; Boutros Boutros-Ghali, An Agenda for Democratization, UN Doc A/51/761, 20 December 1996, Annex, para 1; HRC Res 19/36 (2012). 3

  World Summit Outcome, GA Res 60/1 (2005), para 135. See also Report of the SecretaryGeneral, Support by the United Nations system of the efforts of governments to promote and consolidate new or restored democracies (hereinafter ‘Report of the SecretaryGeneral’), UN Doc A/50/332, 7 August 1995, para 6; Report of the Secretary-General, UN Doc A/56/499, 23 October 2001, para 26. In his An agenda for democratization, n 2, Annex, paras 10–1, Boutros Boutros-Ghali noted that ‘while democracy can and should be assimilated by all cultures and traditions, it is not for the United Nations to offer a model of democratization or democracy or to promote democracy in a specific case. Indeed, to do so could be counter-productive to the process of democratization which, in order to take root and to flourish, must derive from the society itself. Each society must be able to choose the form, pace and character of its democratization process. Imposition of foreign models not only contravenes the Charter principle of non-intervention in internal affairs, it may also generate resentment among both the Government and the public, which may in turn feed internal forces inimical to democratization and to the idea of democracy. … Therefore, the United Nations does not aim to persuade democratizing States to apply external models or

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borrow extraneous forms of government. Rather, the United Nations aims to help each State pursue its own particular path.’ The ‘ideal of democracy is rooted in philosophies and traditions from many parts of the world’: Guidance Note of the Secretary-General on Democracy, 11 September 2009, 2. Accordingly, the UN does not promote any specific form of government. Report of the Secretary-General, UN Doc A/51/512, 18 October 1996, para 4. See also Report of the United Nations High Commissioner for Human Rights, n 1, para 11. 4

  Democratization ‘is neither linear nor irreversible … Accordingly, all countries, as well as the international community itself, could benefit from continued strengthening of, and support to, their democratic processes’: Guidance Note of the Secretary-General on Democracy, n 3, 1. 5

  ibid, 2. The Guidance Note continues: ‘Indeed, the first three words of the Charter itself are “We the peoples”, followed closely thereafter by important references to essential democratic underpinnings such as “human rights”, “fundamental freedoms”, the “equal rights of women and men”, “life in larger freedom”, “self-determination”, and the removal of distinctions on the basis of “race, sex, language or religion”.’ An Agenda for Democratization, n 2, para 28, noted that through the words ‘We the Peoples of the United Nations’, ‘the founders invoked the most fundamental principle of democracy, rooting the sovereign authority of the Member States, and thus the legitimacy of the Organization which they were to compose, in the will of their peoples’. See also Newman, ‘UN Democracy Promotion: Comparative Advantages and Constraints’ in UN Role in Promoting Democracy: Between Ideals and Reality (eds Newman and Rich, 2004), 193; White, ‘The United Nations and Democracy Assistance: Developing Practice within a Constitutional Framework’ in Democracy Assistance: International Cooperation for Democratization (ed Burnell, 2000), 68; Joyner, n 1, 337. 6

  UN Charter, Art 1(2). See also Art 55.

7

  See Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res 1514 (XV) (1960); Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations, GA Res 2625 (XXV) (1970); International Covenant on Civil and Political Rights (ICCPR), Art 1; International Covenant on Economic, Social and Cultural Rights (ICESCR), Art 1. 8

  See Supreme Court of Canada, Reference re Secession of Quebec (1998) 115 ILR 536, para 126: ‘The recognized sources of international law establish that the right to selfdetermination of a people is normally fulfilled through internal self-determination—a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state.’ See also Thürer and Burri, ‘Self-Determination’ in MPEPIL, paras 33–9; Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86 AJIL 46, at 59. 9

  The Secretary-General has noted that ‘[d]emocracy is a reflection of self-determination, and must be based on the freely expressed will of the people, both women and men, facilitated through free access to information, opinion, expression, association and assembly’: Guidance Note of the Secretary-General on Democracy, n 3, 5–6. See also Franck, n 8, 52 (‘self-determination is the historic root from which the democratic entitlement grew’); Crawford, ‘The Right of Self-Determination in International Law: Its Development and Future’ in Peoples’ Rights (ed Alston, 2001), 25 (‘[i]f you regard selfdetermination as essentially a summary of other rights (as its position in a separate Part of the ICCPR might imply), then a key right to self-determination is the right to participate democratically in the political system to which you belong, and to participate in decisions as to its future’). Higgins, ‘Democracy and the United Nations’ (2015) 4 Cambridge JICL 215,

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at 215, has noted that democracy ‘cannot—either legally or politically—be usefully talked about without also talking about human rights and the rule of law’. 10

  See Mancini, ‘Promoting Democracy’ in The UN Security Council in the 21st Century (eds von Einsiedel, Malone, and Stagno Ugarte, 2016), 235 and 243. For example, it has been suggested that the reason why the Guidance Note of the Secretary-General on Democracy, n 3, is a Note of the Secretary-General is due to the fact that it would not have been possible to reach agreement amongst member states on the content of the Note. 11

  This provision has been described as ‘probably the most important source in the search for a legal standard for the promotion of democracy by the United Nations’: White, n 5, 72. On the provision, see Human Rights Committee, General Comment 25, CCPR/C/21/Rev.1/ Add.7 (1996); Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2005), 570; Joseph and Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2013), ch 22. 12

  Human Rights Committee, n 11, para 1.

13

  Report of the Secretary-General, UN Doc A/55/489, 13 October 2000, para 14.

14

  ibid. See also United Nations Millennium Declaration, UN Doc A/55/L.2, 6 September 2000, paras 24–5. 15

  Report of the Secretary-General, UN Doc A/52/513, 21 October 1997, para 24. Free and fair elections were added as a twelfth principle to form the ‘essential elements for a solid framework for democratization assistance by the United Nations’ (ibid, para 25). 16

  Report of the Secretary-General, UN Doc A/54/492, 22 October 1999, para 28. Democratic governance has been described as ‘the benchmark of good governance’: Newman, n 5, 188. 17

  ‘Democracy, based on the rule of law, is ultimately a means to achieve international peace and security, economic and social progress and development, and respect for human rights—the three pillars of the United Nations mission as set forth in the Charter of the UN.’ Guidance Note of the Secretary-General on Democracy, n 3, 2. See also An Agenda for Democratization, n 2, Annex, paras 27 and 59. As one author has noted, ‘the ideal of democratic governance underpins much of the UN’s contemporary work’: Knight, ‘Democracy and Good Governance’ in The Oxford Handbook on the United Nations (eds Daws and Weiss, 2007), 625. See also Transforming our world: the 2030 Agenda for Sustainable Development, UN Doc A/RES/70/1, 21 October 2015, para 9. 18

  ‘Democratic institutions and practices are essential for fostering long-term security and stability because they facilitate peaceful political dialogue, contestation and resolution of differences, which create a conducive and legitimate environment for good and accountable governance and development and for meeting basic human needs and promoting and protecting human rights’: Report of the Secretary-General, UN Doc A/64/372, 28 September 2009, para 29. See also An Agenda for Democratization, n 2, Annex, paras 17–18. In his Agenda for peace, UN Doc A/47/277-S/24111, 17 June 1992, para 59, the Secretary-General noted that ‘There is an obvious connection between democratic practices—such as the rule of law and transparency in decision-making—and the achievement of true peace and security in any new and stable political order. These elements of good governance need to be promoted at all levels of international and national political communities.’ It is also often said that democracies rarely wage war on one another. See Weede, ‘Some Simple Calculations on Democracy and War Involvement’ (1992) 29 Journal of Peace Research 377; Hegre, ‘Democracy and armed conflict’ (2014) 51 Journal of Peace Research 159.

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19

  An Agenda for Democratization, n 2, Annex, paras 19–20. Thus, the mandates of peacekeeping and peacemaking missions not infrequently include the promotion of good governance. Report of the Secretary-General, UN Doc A/66/353, 12 September 2011, para 26. The Report of the High-Level Panel on Threats, Challenges and Change, UN Doc A/ 59/565, 2 December 2004, para 21, noted that ‘International terrorist groups prey on weak States for sanctuary. Their recruitment is aided by grievances nurtured by poverty, foreign occupation and the absence of human rights and democracy; by religious and other intolerance; and by civil violence.’ However, some studies have found that countries undergoing democratic transition are more prone to non-international armed conflicts. See, eg, Snyder, From Voting to Violence (2000); Mansfield and Snyder, Electing to Fight: Why Emerging Democracies Go to War (2005). 20

  World Summit Outcome, GA Res 60/1 (2005), para 135. Para 119 of the World Summit Outcome reads: ‘We recommit ourselves to actively protecting and promoting all human rights, the rule of law and democracy and recognize that they are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations.’ See also Vienna Declaration and Programme of Action (1993), para 8; Commission on Human Rights Res 2002/46; HRC Res 19/36 (2012). The Guidance Note of the Secretary-General on Democracy, n 3, 2, indicates that ‘Development is more likely to take hold if people are given a genuine say in their own governance, and a chance to share in the fruits of progress.’ However, there might also be a tension between different understandings of human rights, democracy, and development. See Donnelly, ‘Human Rights, Democracy, and Development’ (1999) 21 HRQ 608. 21

  HRC Res 19/36 (2012). In Res 2002/46, the Commission on Human Rights indicated that ‘the full exercise of fundamental freedoms and human rights—which are universal, indivisible and interdependent—can only take place within democratic systems’. See also Guidance Note of the Secretary-General on Democracy, n 3, 3, which notes that ‘The record in past years statistically demonstrates that coups tend to worsen a State’s human rights situation, do not lead to improvements in the quality of democracy and lead to poorer governance.’ In his report on The causes of conflict and the promotion of durable peace and sustainable development in Africa, UN Doc A/52/871-S/1998/318, 13 April 1998, para 77, the Secretary-General noted that ‘Democratic government helps to guarantee political rights, protect economic freedoms and foster an environment where peace and development can flourish.’ Donnelly, n 20, 619, has noted, however, that ‘Democracies might have a better average human rights record than non-democratic regimes. Some nondemocratic states, however, perform better on certain rights than some democratic states.’ 22

  This was due to ideas of state sovereignty and non-intervention in the domestic affairs of the state. See Newman, n 5, 193–4. See also n 10. 23

  Report of the Secretary-General, n 3, para 10.

24

  For a list of plebiscites, referenda, and elections, in trust and non-self-governing territories, that were held under the supervision or observation of the UN, see Report of the Secretary-General, Enhancing the effectiveness of the principle of periodic and genuine elections, UN Doc A/46/609, 19 November 1991, Annex, ‘Plebiscites, referenda and elections held under the supervision or observation of the United Nations in Trust and NonSelf-Governing Territories’. See also Beigbeder, International Monitoring of Plebiscites, Referenda and National Elections: Self-Determination and Transition to Democracy (1994), 129–43.

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25

  The first resolution was GA Res 43/157 (1988). Res 44/146 (1989), adopted one year later, underscored the significance of the UDHR and ICCPR, ‘which establish that the authority to govern shall be based on the will of the people, as expressed in periodic and genuine elections’, and also declared that ‘determining the will of the people requires an electoral process that provides an equal opportunity for all citizens to become candidates and put forward their political views, individually and in cooperation with others within the constitution and national legislation’. 26

  GA Res 49/30 (1994). For the report, see Report of the Secretary-General, n 3.

The 1970s, 1980s, and early 1990s saw a wave of states transforming into democracies. By the 1990s, with the end of the Cold War, the number of democracies had nearly doubled: UN Doc A/56/499, 23 October 2001, para 25. See also Ponzio, ‘UNDP [United Nations Development Programme] experience in long-term democracy assistance’ in Newman and Rich (eds), n 5, 208. These new democracies took the lead in holding an International Conference of New or Restored Democracies, the first of which took place in June 1988 and the second in July 1994. The Declaration and Plan of Action of the Second Conference requested the Secretary-General to ‘study the ways and means by which the United Nations system could be of assistance to new or restored democracies’. That request was later made by the General Assembly. The report of the Secretary-General on the subject would become an annual, then biennial, one. See GA Res 55/285 (2001). 27

  An Agenda for Democratization, n 2, Annex, para 8. The Agenda continued: ‘To address the subjects of democratization and democracy does not imply a change in the respect that the United Nations vows for the sovereignty of States or in the principle of non-intervention in internal affairs set out in Article 2, para 7, of the Charter of the United Nations. To the contrary, the founding purposes and principles of the United Nations are the very basis of the present reflection.’ However, the Agenda for Democratization was controversial. Some states were of the view that the Secretary-General had overstepped his authority, and found the tone of the document ‘pontificating and paternalistic’. Mancini, n 10, 243. 28

  Report of the Secretary-General, UN Doc A/58/392, 26 September 2003, para 12.

One author has noted that ‘the UN Secretariat has assumed the impressive role of international agent for democratization’: Joyner, n 1. In his In larger freedom report, UN Doc A/59/2005, 21 March 2005, para 151, the Secretary-General noted that ‘[t]he United Nations does more than any other single organization to promote and strengthen democratic institutions and practices around the world’. 29

  Guidance Note of the Secretary-General on Democracy, n 3, 5. See also Report of the Secretary-General, n 3, paras 11–13. 30

  The Secretary-General has noted that ‘the international community has often been impatient with the pace of democratic transition in societies, expecting complex changes to unfold rapidly. It has expected fragmented and resource-starved countries, including those devastated by conflict, to achieve what has taken more developed countries many decades.’ This impatience ‘can result in a crisis of confidence within the society about its capacity to move toward democracy’, as well as ‘premature conclusions being drawn about the effectiveness of democracy assistance’. Accordingly, democratic assistance must also involve capacity-building activities ‘in order to ensure long-term sustainability’. Guidance Note of the Secretary-General on Democracy, n 3, 4. 31

  In ‘Strengthening and coordinating United Nations rule of law activities, Report of the Secretary-General’, UN Doc A/63/226, 6 August 2008, para 3, the Secretary-General noted that the UN’s work on rule-of-law activities is ‘integral to fulfilling the purposes of the

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Organization’ and that ‘it is unquestionable that the United Nations plays the role of a global centre for the promotion of the rule of law’. In the World Summit Outcome document, the ‘rule of law and human rights’ was identified as one of the four principal areas that required particular attention. GA Res 60/1 (2005), para 16. The document, at para 134, recognized ‘the need for universal adherence to and implementation of the rule of law at both the national and international levels’, and reaffirmed the ‘commitment to the purposes and principles of the Charter and international law and to an international order based on the rule of law and international law, which is essential for peaceful coexistence and cooperation among States’. Following the Summit, an item was introduced on the agenda of the Sixth Committee on the rule of law at the national and international levels. The General Assembly has adopted annual resolutions on the rule of law at the national and international levels (eg, GA Res 69/123 (2014)) and the SecretaryGeneral has prepared annual reports on strengthening and coordinating UN rule of law activities (eg, UN Doc A/68/213, 29 July 2013). On rule-of-law activities of the UN, see in particular Report of the Secretary-General, The rule of law at the national and international levels, UN Doc A/63/64, 12 March 2008; and see at https://www.un.org/ruleoflaw/. The ‘Rule of Law Coordination and Resource Group’ was established in 2006 to coordinate the UN’s rule-of-law activities. The Group consists of some 20 UN entities and is chaired by the Deputy Secretary-General. On the Group, see Report of the Secretary-General, Strengthening and coordinating United Nations rule of law activities, UN Doc A/63/226, 6 August 2008, para 47. It is supported by the Rule of Law Unit, which ensures coordination, develops strategies, policy direction, and guidance, and enhances partnerships with other entities that work on rule of law activities. See ibid, paras 48–57. The Departement of Peacekeeping Operations (DPKO) Office of Rule of Law and Security Institutions also undertakes work on the subject. 32

  The majority of armed conflicts that take place are of a non-international character. Many of these armed conflicts are caused by the political, economic, or social system in the state in question. Democratic governance thus contributes to the prevention of armed conflict. Report of the Secretary-General, UN Doc A/56/499, 23 October 2001, para 31. Accordingly, democratic elections and/or more participatory systems tend to be an aspect of the peace process and peace agreement that concludes the armed conflict. UN assistance in the negotiation and implementation of peace agreements has seen the UN be given a role in the promotion of a democratic culture in the state in question. Report of the SecretaryGeneral, UN Doc A/51/512, 18 October 1996, para 9. The Secretary-General has noted that for a durable peace to be established and maintained, an environment has to be created ‘in which individuals would feel protected, where civil society would be able to flourish and where Government would carry out its responsibilities effectively and transparently and with adequate institutional mechanisms to ensure accountability. Such an endeavour would also involve securing respect for human rights and the rule of law, which are the cornerstones of good governance.’ Report of the Secretary-General, UN Doc A/55/489, 13 October 2000. From a development perspective, good governance is essential, as is a strong civil society. Good governance is seen as a tool for enhancing development. Thus, the UN has supported initiatives that ‘promote the policy dialogue to widen development choices; strengthen the capacities of key democratic governing institutions for people-centred development; promote decentralization for stronger local governance and community empowerment; and increase efficiency and accountability in the public sector’: Report of the Secretary-General, UN Doc A/55/489, 13 October 2000, para 16. The UN has also sought to strengthen civil society in states in which it is weak. Report of the Secretary-General, UN Doc A/51/512, 18

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October 1996, para 10. See further An agenda for development, UN Doc A/48/935, 6 May 1994. Democracy, democratization, and good governance are key issues in the work of development agencies. Indeed, UNDP plays a leading role in democracy assistance activities. And ‘50 percent of the resources of UNDP’ have gone into governance programmes, eg ‘supporting public sector reforms; strengthening governing institutions and governance in special circumstances; supporting decentralization and local governance; developing leadership; and enhancing democratization and political empowerment of the poor through strengthening civil society organizations’: Report of the Secretary-General, UN Doc A/55/489, 13 October 2000, para 15. On the role of UNDP, see Ponzio, n 26. 33

  Guidance Note of the Secretary-General on Democracy, n 3, 6.

34

  Report of the Secretary-General, n 3, para 14.

35

  This has taken place, in particular, following the conclusion of a non-international armed conflict, with the UN assisting in the transformation of armed groups into political parties. For example, in El Salvador, the UN Observer Mission in El Salvador assisted the Frente Farabundo Martí para la Liberación Nacional (FMLN) to transform itself into a political party. The FMLN, as a political party, participated in the elections in 1992. Report of the Secretary-General, n 3, para 21. In Mozambique, the United Nations Operation in Mozambique helped transform the Resistência Nacional de Moçambique into a political party for the elections in 1994, and facilitated the move from a one-party to a multi-party system. Members of political parties were also provided with training on observation of the vote count (ibid, para 19). 36

  ibid, para 22.

37

  See further ch 20, ‘Electoral Assistance’.

38

  Report of the Secretary-General, UN Doc A/52/513, 21 October 1997, paras 29–30 and 40–1. The Secretary-General has also noted that ‘ill-timed, and in particular premature elections encouraged by the international community in fragile societies have sometimes entrenched undemocratic, nationalist or extremist groups in power, and radicalized political discourse. Ill-conceived and poorly conceptualized programmes, and the promotion of inappropriate foreign models, also have the potential to endanger democratic transitions and, in some cases, they have even contributed to enhanced societal violence and conflict.’ Guidance Note of the Secretary-General on Democracy, n 3, 3. 39

  See ch 20, ‘Electoral Assistance’.

40

  See, eg, SC Res 1590 (2005) on UNMIS; SC Res 1881 (2009) on UNAMID; and SC Res 2053 (2012) on MONUSCO. Mancini, n 10, 245, notes that ‘Ensuring or promoting democracy, strengthening democratic institutions, or securing free and fair elections have remained tasks for all missions approved under Chapter VII since 2002 as well as for the mandates of all special political missions (with the exception of UNAMID in Darfur and UNISFA in Abyei).’ 41

  GA Res 66/163 (2012), para 9.

42

  Key issues in so far as institution-building is concerned include ‘political legitimacy; accountability and transparency; freedom of association and participation; a fair and reliable judiciary; bureaucratic accountability; freedom of information and expression; effective and efficient public sector management; and interaction with organizations of civil society’: Report of the Secretary-General, UN Doc A/51/512, 18 October 1996, para 32. Accordingly, the structure or management of an institution might need changing, the

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culture of the institution might need to be shaped, or its general orientation changed, eg, towards accountability, transparency, or the rule of law. Report of the Secretary-General, n 3, paras 79–80. The United Nations Integrated Office in Burundi, the United Nations Stabilization Mission in Haiti, and the United Nations Organization Mission in the Democratic Republic of the Congo have all been tasked with the promotion of good governance and the strengthening of democratic institutions and processes. Report of the Secretary-General, UN Doc A/ 64/372, 28 September 2009, para 43. 43

  For example, in the Lao People’s Democratic Republic, UNDP, the World Bank, and state representatives reviewed the ‘constitutional separation of powers, redefinition of the roles of provincial and district bodies … [and] state apparatus in terms of its overall size and the mandates of each agency’, created a ‘national institution of public administration’, and restructured several ministries. Report of the Secretary-General, n 3, para 83. The Office of the United Nations High Commissioner for Human Rights (OHCHR), previously the Centre for Human Rights, has assisted states with the establishment of national institutions for the promotion of human rights, such as national human rights institutions. For example, in 1990, UNDP and the Centre for Human Rights assisted the Government of Paraguay with the establishment of the Directorate-General for Human Rights as a department of the Ministry of Justice and Labour. Report of the SecretaryGeneral, n 3, para 91. 44

  In a democracy, officials are accountable to the people. Thus transparency is important and the people should be able to access information about public affairs. Guidance Note of the Secretary-General on Democracy, n 3, 7. Support for accountability and transparency is provided primarily by UNDP and actors such as the World Bank. UNDP has designed and implemented programmes that are aimed at improving public sector management, including ‘strengthening legislatures, regional elected bodies and local authorities’, ‘supporting public administration reforms in national Governments and local authorities’, and ‘promoting access to justice and the rule of law’. Report of the Secretary-General, UN Doc A/62/296, 23 August 2007, para 35. For example, UNDP has assisted in ‘public sector reform and capacity-development in Georgia, Lesotho, Kuwait and Pakistan; strengthening parliaments in Bangladesh, the Gambia, Burundi, Sierra Leone, and Mozambique; and strengthening the legal and judicial systems in Bolivia and Bhutan’: Report of the Secretary-General, UN Doc A/51/512, 18 October 1996, para 34. Other UNDP assistance includes the provision of support to the Government of Bolivia on procurement practices, enabling the Government to make financial savings: Report of the Secretary-General, n 3, para 111. Other UN entities also play a role in this regard. The United Nations Interim Administration Mission in Kosovo (UNMIK) has supported the building of capacity of the police service in Kosovo: Report of the Secretary-General, UN Doc A/62/296, 23 August 2007. The UN Development Fund for Women has involved women in security sector reform (ibid). The United Nations Office on Drugs and Crime has provided technical assistance and legal advice on the implementation of the UN Convention against Corruption (ibid, para 38). 45

  UNDP is particularly active in this regard, supporting the work of ‘one third of the parliaments in the world’: Report of the Secretary-General, UN Doc A/64/372, 28 September 2009, para 45. It has provided training for senior civil servants in states that are undergoing transition. This followed recognition that political leadership is a basic requirement for the consolidation and promotion of democratization: Report of the Secretary-General, n 3, paras 115–16. The DPA also provides technical support and training

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for police and public servants: Report of the Secretary-General, UN Doc A/62/296, 23 August 2007, para 32. 46

  Report of the Secretary-General, n 3, para 35.

47

  Civic education is carried out in various ways. For example, the United Nations Transitional Authority in Cambodia (UNTAC) provided information on elections. As the literacy rate in Cambodia was low, UNTAC established its own radio station to disseminate the information. By contrast, the United Nations Angola Verification Mission II (UNAVEM) hosted a seminar on democracy, human rights, and free and fair elections in advance of the elections in Angola, which was attended by political parties, the media, non-governmental organizations (NGOs), and electoral officials. 48

  Civil society includes ‘non-governmental organizations and democratic reform groups, human rights groups, women’s groups, youth groups, social movements, trade unions, minority representatives, professional societies and community groups and watchdog associations’: Report of the Secretary-General, UN Doc A/64/372, 28 September 2009, para 51. 49

  Report of the Secretary-General, UN Doc A/52/513, 21 October 1997, para 31.

50

  Report of the Secretary-General, UN Doc A/64/372, 28 September 2009, para 51. The Secretary-General also indicated that ‘without the participation and active contribution of the citizens to social life, a true democracy cannot grow and prosper’: Report of the Secretary-General, UN Doc A/53/554, 20 October 1998, para 25. See also HRC Res 19/36 (2012), emphasizing that civil society plays a ‘crucial role’ in the ‘proper functioning of a democracy’. 51

  For example, in Guatemala, the Joint Unit of the United Nations Mission for the Verification of Human Rights and Compliance with the Commitments of the Comprehensive Agreement on Human Rights (MINUGUA) and UNDP undertook a study on NGOs in Guatemala. That study identified weaknesses in the technical, administrative, and financial capabilities of NGOs that needed to be addressed. Report of the Secretary-General, UN Doc A/51/512, 18 October 1996, para 15. In Bangladesh, UNDP encouraged collaborations between the Government and civil society in UNDP-supported projects: Report of the Secretary-General, UN Doc A/53/554, 20 October 1998, para 26. For its part, the International Labour Organization (ILO) has provided technical assistance to trade unions (ibid, para 29). In Kenya, UN Volunteers, the Government of Kenya, and others launched an Emergency Volunteer Scheme, which was ‘designed to promote post-election community dialogue’. Twenty-one UN volunteers ‘trained 900 prominent youth leaders, retired professionals, women and opinion leaders in conflict resolution and community security, as well as humanitarian response and early recovery’. Report of the Secretary-General, UN Doc A/64/372, 28 September 2009, para 54. 52

  Report of the Secretary-General, UN Doc A/52/513, 21 October 1997, para 32.

53

  Report of the Secretary-General, n 3, para 23. The Secretary-General has noted (ibid): ‘Independent and free media that allocate time equally to all political actors and report impartially to the general public help to guarantee freedom of thought and the unimpeded flow of ideas, and promote dialogue among people.’ They are also necessary for a ‘balanced public opinion’: Report of the Secretary-General, UN Doc A/53/554, 20 October 1998, para 39. The Security Council has also urged states to ensure ‘equitable access to the media, including State media’, and has linked this to credible, peaceful, and transparent elections. See, eg, SC Res 2053 (2012).

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54

  The Department of Public Information, United Nations Educational, Scientific and Cultural Organization (UNESCO), and UNDP have held regional seminars on the promotion of an independent and pluralistic press, in which journalists, media representatives, and policy-makers from different regions have participated. Report of the Secretary-General, n 3, paras 25–8. Independence, ethics, and the responsibilities of the media are stressed during training. Report of the Secretary-General, UN Doc A/62/296, 23 August 2007, para 41. For example, in Kyrgyzstan, UNDP, the United Nations Population Fund (UNFPA), and UNESCO have provided training for journalists on the reporting of financial, business, and social matters; ethics; and freedom of the media. They also provided training on skills such as newsgathering and production techniques. Report of the Secretary-General, UN Doc A/ 51/512, 18 October 1996, para 26. For its part, the OHCHR has provided training on human rights for the media. Report of the Secretary-General, UN Doc A/62/296, 23 August 2007, Annex. 55

  The rule of law also requires ‘measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency’: Guidance Note of the Secretary-General on Democracy, n 3, 7; Guidance Note of the SecretaryGeneral: UN Approach to Rule of Law Assistance (April 2008), 1. 56

  ‘All human rights, the rule of law and democracy are interlinked and mutually reinforcing and they belong to the universal and indivisible core values and principles of the United Nations.’ Guidance Note of the Secretary-General: UN Approach to Rule of Law Assistance (April 2008), 2. This was reaffirmed in the Declaration of the High-Level Meeting of the General Assembly on the Rule of Law at the National and International Levels, GA Res 67/1 (2012). 57

  Various UN entities have provided assistance in the reform and development of the legal system. In Rwanda, the Department of Development Support and Management Services provided assistance in the reform of the justice system. It provided advisers and equipment to assist with investigations, provided training for magistrates and court officers, and took measures to address the conditions in prisons and detention centres. Report of the Secretary-General, UN Doc A/51/512, 18 October 1996, para 46. UNDP also assisted with the development of the justice system in Rwanda following the genocide and armed conflict. Report of the Secretary-General, UN Doc A/53/554, 20 October 1998, para 44. The Crime Prevention and Criminal Justice Branch of the Secretariat, with others, has assisted states with the drafting of criminal codes and legislation, and with the fight against transnational organized crime. Report of the Secretary-General, UN Doc A/51/512, 18 October 1996, para 47. The DPKO and the DPA have provided assistance in the reform of police services and security sector reform. Report of the Secretary-General, UN Doc A/62/296, 23 August 2007, para 24. The OHCHR, and its predecessor the Centre for Human Rights, has provided training for judges, lawyers, prosecutors, the police, prison officials, and the military (Report of the Secretary-General, UN Doc A/51/512, 18 October 1996, paras 48 and 50), and provided expert advice on the content of draft laws and policies. Report of the Secretary-General, UN Doc A/62/296, 23 August 2007, Annex.

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Peace operations can also have a rule-of-law function to them. For example, the UN Civilian Police Mission in Haiti (MIPONUH) assisted the Government of Haiti with the ‘professionalization of the Haitian National Police’. Report of the Secretary-General, UN Doc A/53/554, 20 October 1998, para 43. Other international institutions also provide support. For example, the ILO has provided assistance, at the request of states, on labour legislation. The World Bank has provided assistance on legislative, judicial, and administrative reform. Report of the SecretaryGeneral, n 3, paras 97–102. On the guiding principles and framework for strengthening the rule of law, see Guidance Note of the Secretary-General: UN Approach to Rule of Law Assistance (April 2008). 58

  See, eg, Vienna Declaration and Programme of Action (1993) para 8; Commission on Human Rights Res 2000/47 and Res 2002/46; HRC Res 19/36 (2012); GA Res 55/96 (2001); World Summit Outcome, GA Res 60/1 (2005), paras 119 and 135. See also Report of the Secretary-General, UN Doc A/53/554, 20 October 1998, para 15 and Guidance Note of the Secretary-General on Democracy, n 3, 2. See also GA Res 66/163 (2012) 1. 59

  Report of the Secretary-General, UN Doc A/56/499, 23 October 2001, para 26. In a later report, the Secretary-General noted: ‘The values of freedom and respect for human rights are essential elements of democracy. In turn, democracy provides the natural environment for the protection and effective realization of human rights.’ Report of the SecretaryGeneral, UN Doc A/64/372, 28 September 2009, para 39. 60

  Report of the Secretary-General, UN Doc A/51/512, 18 October 1996, para 27. The HRC, in Res 19/36 (2012), stressed that ‘democracy includes respect for all human rights and fundamental freedoms, inter alia, freedom of association and of peaceful assembly, freedom of expression and opinion, freedom of thought, conscience, religion or belief, the right to be recognized everywhere as a person before the law and the right to take part in the conduct of public affairs, directly or through freely chosen representatives, to vote in a pluralistic system of political parties and organizations and to be elected at genuine, periodic, free and fair elections by universal and equal suffrage and by secret ballot guaranteeing the free expression of the will of the people, as well as respect for the rule of law, the separation of powers, the independence of the judiciary, transparency and accountability in public administration and decision-making and free, independent and pluralistic media’. See also Commission on Human Rights Res 2002/46. See further the Guidance Note of the Secretary-General on Democracy, n 3, 3, where the Secretary-General stressed: ‘A key lesson is that democracy is indeed inextricably linked with the three pillars of the United Nations, in that genuinely democratic institutions and practices are essential for fostering long-term security and stability by allowing peaceful political dialogue and contestation; creating a conducive and legitimate environment for good governance, development and meeting basic human needs; and promoting and protecting human rights.’ 61

  HRC Res 28/14 (2015), U.N. Doc A/HRC/RES/28/14.

62

  The OHCHR has prioritized the provision of technical assistance to states that are transitioning to democracy. Assistance has been provided on the incorporation of international human rights norms into national laws and policies, the revision of national institutions and legislation to ensure that they are compliant with human rights, the establishment and strengthening of national institutions, and the development of plans of action. Report of the Secretary-General, UN Doc A/51/512, 18 October 1996, para 28; Report of the Secretary-General, UN Doc A/62/296, 23 August 2007, paras 25–8. Training has been provided to the police and prison officials. Assistance has also been provided to NGOs. Report of the Secretary-General, UN Doc A/51/512, 18 October 1996, para 28. See also Report of the United Nations High Commissioner for Human Rights, Study on common challenges facing States in their efforts to secure democracy and the rule of law from a human rights perspective, UN Doc A/HRC/22/29, 17 December 2012, para 74. The OHCHR From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

provides support to the Forum on Human Rights, Democracy and the Rule of Law, established by HRC Res 28/14 (2005), UN Doc A/HRC/RES/28/14. The Forum is intended ‘to provide a platform for promoting dialogue and cooperation on issues pertaining to the relationship between these areas … [and] identify and analyse best practices, challenges and opportunities for States in their efforts to secure respect for human rights, democracy and the rule of law’. For example, the OHCHR provided assistance to Rwanda in developing the capacity of its national human rights commission. Report of the Secretary-General, UN Doc A/58/392, 26 September 2003, para 25. In Guatemala, the OHCHR helped strengthen the capacity of leading NGOs (ibid, para 40). During 1997–8 alone, the OHCHR undertook 45 technical cooperation projects in some 25 states, together with nine projects at the regional level and a further nine at the international level. Report of the Secretary-General, UN Doc A/53/554, 20 October 1998, para 17. Other UN entities have also played a role in so far as monitoring and observance of human rights is concerned. For example, the United Nations Development Fund for Women (UNIFEM) has assisted states in developing national policies that conform to the Convention on the Elimination of All Forms of Discrimination against Women and other human rights obligations. Report of the Secretary-General, UN Doc A/62/296, 23 August 2007, para 29. The UN/Organization of American States (OAS) International Civilian Mission in Haiti (MICIVIH) undertook the verification of human rights and provided recommendations in instances of violation. Report of the Secretary-General, UN Doc A/ 51/512, 18 October 1996, para 30. The United Nations Assistance Mission for Iraq (UNAMI) has worked with national bodies to promote human rights protection, including through the establishment of a national human rights commission. Report of the Secretary-General, UN Doc A/62/296, 23 August 2007, para 30. The Department of Economic and Social Affairs has supported capacity-building in states to develop their human rights capabilities. For example, it provided technical assistance in the creation of a national centre for human rights and an ombudsman. Report of the Secretary-General, UN Doc A/53/554, 20 October 1998, para 19. UNDP provided training on human rights to the Ecuadorian military (ibid, para 20). 63

  Report of the Secretary-General, UN Doc A/64/372, 28 September 2009, para 47; Guidance Note of the Secretary-General on Democracy, n 3, 4. The Secretary-General has indicated that gender equality is ‘an explicit goal of democracy-building’ and not an ‘add on’: Report of the Secretary-General, UN Doc A/66/353, 12 September 2011, para 23. The Secretary-General has also noted that ‘[t]he active participation of both sexes is an absolute necessity in a process of consolidating democracy’: Report of the Secretary-General, UN Doc A/52/513, 21 October 1997, para 37. UN Women, and its predecessor UNIFEM, has promoted the political participation of women, in particular through ‘building the capacity of women candidates and women elected officials’, ‘fostering improved accountability for gender equality’, and ‘promoting increased coverage of and attention to women in politics in the media’: Report of the Secretary-General, UN Doc A/66/353, 12 September 2011, para 48. UNIFEM ‘has strengthened the capacity of women to contest local and national elections in several countries, including in Ecuador, Indonesia, Nepal, Rwanda and Sierra Leone. It has also provided support to elected women leaders in Egypt, Kenya and Rwanda’: Report of the Secretary-General, UN Doc A/64/2372, 28 September 2009, para 49. The UN Development Fund for Women and the United Nations International Children’s Emergency Fund (UNICEF) ‘supported inclusion of gender equality provisions in the development of new Constitutions in Bolivia, Iraq, Montenegro and Thailand, and in the interim constitutions of Nepal and the Sudan’: Report of the Secretary-General, UN Doc A/62/296, 23 August 2007.

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The Security Council has urged states to ensure ‘the full and effective participation of women in the electoral process’. See, eg, SC Res 2053 (2012).

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Part 3 The United Nations: What it Does, 20 Electoral Assistance Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): Self-determination — Democracy

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(p. 686) 20  Electoral Assistance 1.  Chronology 20.01 2.  Rationale behind the provision of assistance 20.03 3.  Forms of assistance 20.04 4.  Procedure relating to the provision of assistance 20.13 5.  UN entities involved in the provision of assistance 20.18 Beigbeder, International Monitoring of Plebiscites, Referenda and National Elections (1994); Binder and Pippan, ‘Election Monitoring, International’ in the Max Planck Encyclopedia of Public International Law (MPEPIL) (online); Bjornlund, Beyond Free and Fair: Monitoring Elections and Building Democracy (2004); de Raulin, ‘L’action des observateurs internationaux dans le cadre de l’ONU et de la Société Internationale’ (1995) 99 RG 567; Ebersole, ‘The United Nations’ Response to Requests for Assistance in Electoral Matters’ (1992–3) 33 Virginia JIL 91; Fox, ‘Multinational Election Monitoring: Advancing International Law on the High Wide’ (1994–5) 18 Fordham ILJ 1658; Goodwin-Gill, Free and Fair Elections (2006); Ludwig, ‘The UN’s Electoral Assistance: Challenges, Accomplishments, Prospects’ in The UN Role in Promoting Democracy (eds Newman and Rich, 2004); Reisman, ‘International Election Observation’ (1992) 4 Pace Yearbook of International Law 1; Reports of the Secretary-General, Strengthening the role of the United Nations in enhancing the effectiveness of the principle of periodic and genuine elections and the promotion of democratization; Satterthwaite, ‘Human Rights Monitoring, Elections Monitoring, and Electoral Assistance as Preventive Measures’ (1997–8) 30 NYU JILP 709; Stoeling, ‘The Challenge of UN-Monitored Elections in Independent Nations’ (1991–2) 28 Stanford JIL 371; White, ‘The United Nations and Democracy Assistance: Developing Practice within a Constitutional Framework’ in Democracy Assistance: International Cooperation for Democratization (ed Burnell, 2000), 67, at 74–6.

1.  Chronology 20.01  Electoral assistance1 on the part of the UN dates back to the late 1940s, with the UN observation of elections in the southern part of the Korean peninsula in (p. 687) 1948.2 During the 1960s and 1970s, the UN observed and supervised numerous elections, referenda, and plebiscites, in the context of decolonization.3 The late 1980s and early 1990s represented a turning point for UN involvement in elections, as relations between states transformed following the end of the Cold War and numerous transitions to democracy occurred.4 The UN was receiving a greater number of requests to assist national electoral processes directly through political support and various forms of technical assistance. Accordingly, it needed to professionalize and organize its expertise. 20.02  In 1988, the General Assembly adopted an important resolution on the principle of periodic and genuine elections;5 and an item on the subject was included on the agenda of the General Assembly. In 1991, the Secretary-General published a report on the subject of the principle of periodic and genuine elections, which would become an annual then biennial report.6 Also in 1991, the General Assembly endorsed (p. 688) the designation of a Focal Point for UN electoral assistance efforts; and in 1992, an Electoral Assistance Unit was established.7 During this period, the UN supervised the elections in Namibia and verified the elections in Nicaragua.8 In the decade that followed, the UN shifted from observation of elections to the provision of direct technical assistance upon the request of member states or through a mandate from the UN Security Council. Direct high-profile support and assistance was provided to elections and referenda. This followed the broader trend for armed conflicts to end through peace agreements, which frequently contained From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

provisions on elections.9 Likewise, electoral processes took place in transitions from authoritarian rule.10 By the 2000s, the principal form of UN electoral assistance was the provision of technical assistance.11 Between 1989 and 2006, 391 requests for electoral assistance had been made by 106 states.12 Of the 391 requests, assistance was provided in 289 cases.13

2.  Rationale behind the provision of assistance 20.03  The rationale behind the provision of electoral assistance on the part of the UN is three-fold: to assist member states to hold democratic elections in accordance with human rights instruments;14 to contribute to the development of a sustainable (p. 689) institutional capacity within member states to organize free and fair elections;15 and to organize all or part of an electoral process, usually with a mandate from the UN Security Council, in substitution for or in partnership with national electoral authorities. As indicated by the Secretary-General, ‘[t]he ultimate objective of electoral assistance is to create its own obsolescence’.16 However, in UN mission settings, because ‘political considerations [often] trump technical considerations’, assistance needs to form part of an integrated UN political strategy.17

3.  Forms of assistance 20.04  United Nations work in the area of electoral assistance is of several types.18 The principal such types are: the organization and conduct of elections; the supervision, verification, certification, and observation of elections; the coordination of, or support for, observers; and the provision of technical assistance and capacity-building. The form of assistance provided is greatly influenced by whether it is conducted in a UN mission setting, guided by a mandate from the UN Security Council; or a non-mission setting, with no political or peacekeeping mission to support, and guided normally only by an invitation from the host government.

3.1  Organization and conduct of elections 20.05  Although the organization and conduct of elections on the part of the UN is rare,19 this form of assistance has constituted some of the most high-profile and well-known (p. 690) forms of UN support in previous decades. In order for the UN to organize and conduct elections in a member state, a mandate is required from the General Assembly or the Security Council.20 The two instances of organization and conduct of elections by the UN occurred in Cambodia (1992–3), which contributed to the end of the armed conflict; and in Timor-Leste (1999–2002), as part of the exercise of the right of self-determination.21 In other cases, notably Afghanistan (2004–5) and Iraq (p. 691) (2005), international persons were appointed by the UN as members of the national electoral administration authorities.22 However, this too is rare and is an exception to the UN’s usual supporting role, assisting in the national electoral administration.

3.2  Supervision, verification, certification, and observation of elections 20.06  United Nations supervision of elections is associated with the period of decolonization. As the name suggests, the elections are organized and conducted by one entity, under the supervision of the UN. This too requires a mandate from the General Assembly or Security Council.23 The leading instance of the UN’s undertaking the supervision of elections is the elections in Namibia (1989–90), in the context of Namibia’s transition to independence.24

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(p. 692) 20.07  On occasion, the UN is requested to verify or certify an election. This entails an assessment of the credibility of the electoral process, and a determination that it conformed to relevant international and national laws and commitments.25 This too requires the authorization of the General Assembly or Security Council.26 During the period of decolonization, the mandate of a UN mission not infrequently involved the verification of an election, referendum, or plebiscite. By 2016, requests by member states to the UN to certify elections had become rare.27 One instance of a request for certification is that of the elections in Côte d’Ivoire (2010).28 20.08  International election observation has been defined as the systematic, comprehensive and accurate gathering of information concerning the laws, processes and institutions related to the conduct of elections and other factors concerning the overall electoral environment; the impartial and professional analysis of such information; and the drawing of conclusions about the character of electoral processes based on the highest standards for accuracy of information and impartiality of analysis.29 20.09  United Nations standards provide that it is not solely the day of the election that should be observed, but also the electoral processes that lead up to and follow it.30 United Nations observation of elections was a means of building confidence relating (p. 693) to the election.31 By 2016, UN observation of elections had become rare, it being accepted that ‘the UN should not observe an electoral process it is giving technical assistance to, in order to avoid a conflict of interest’.32 With the increase in the provision of technical assistance,33 observation tends to be carried out by regional organizations such as the European Union (EU) and African Union (AU), and by non-profit organizations such as the Carter Center instead.34 However, recent examples of the UN’s observing an election in a member state include Burundi in 201535 and Fiji in 2001.36 On occasion, the UN has provided a single observer for limited, short-term observation.37

3.3  Coordination of, and support for, observers 20.10  On several occasions, instead of itself observing the election, the UN has been involved in the coordination of international observers.38 This involves the provision (p. 694) of administration assistance to organizations that are observing the election, facilitating the sharing of information and providing logistical support to the observers.39 As, in this case, the UN does not undertake the observation itself; it does not issue a statement concerning the election. The UN has also provided support for national election observers.40

3.4  Technical assistance and capacity-building 20.11  Technical assistance relates to the advice and support provided by the UN to national authorities concerning the administration of elections. Member states frequently request assistance on the ‘legal, institutional, technical and administrative aspects’ of elections.41 The UN Security Council has also determined, on numerous occasions, that technical assistance is to be provided. At October 2016, 20 Security Council-mandated missions had active electoral assistance mandates.42 Assistance is provided in a range of areas relating to elections, such as: electoral administration and planning, review of electoral laws and regulations, electoral dispute resolution, boundary delimitation, voter registration, election budgeting, logistics, procurement of election materials, use of technologies, training

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of election officials, voter and civic education, voting and counting operations, election security and coordination of international donor assistance.43 (p. 695) 20.12  Technical assistance can be provided at all stages of the electoral cycle,44 including well in advance of any election, for example on the issue of electoral reform, rather than solely with respect to a particular election.45 Increasingly, it is technical assistance that is requested of the UN rather than election organization, verification, or observation.46

4.  Procedure relating to the provision of assistance 20.13  Electoral assistance by the UN to a member state is triggered upon a request of the member state and/or on the basis of a Security Council or General Assembly resolution.47 Where the request emanates from the state, a formal, written request for electoral assistance must be made.48 The request is to be made by the appropriate entity within the state, namely the government or the electoral authority.49 Ideally, it should be made at least four months before the date of the relevant election.50 (p. 696) 20.14  Following the request for assistance, the request will be reviewed by the Electoral Assistance Division of the DPA.51 Depending on whether it is a UN mission or a non-mission setting, and the lead Secretariat department supporting that country (DPA or Department of Peacekeeping Operations (DPKO)), the Division will consult with relevant UN entities, such as the UN Resident Coordinator, and, in all cases UNDP. A recommendation is then submitted to the Focal Point as to whether or not a needs assessment is to take place.52 20.15  If a needs assessment is considered necessary, the Electoral Assistance Division dispatches a needs assessment mission.53 The goal of the mission is to evaluate the political, electoral and security situation in the requesting Member State. The mission will also assess the usefulness, feasibility, advisability, sustainability and potential impact of UN electoral assistance and ascertain whether electoral stakeholders support UN involvement. It will also look at the potential for election-related violence.54 20.16  A needs assessment serves to ensure that the assistance is tailored to the needs at hand.55 In order to ensure gender mainstreaming in UN electoral assistance, all needs assessments that are carried out following a request for electoral assistance by a member state include the specific issue of the representation of women.56 In certain situations, a desk assessment, rather than a needs assessment mission, takes place.57 (p. 697) A recommendation is then made as to whether there should be UN involvement in the relevant election process. A similar process is followed, with some modification, if there is an existing UN mission and Security Council mandate. 20.17  Following the assessment, the Focal Point determines whether electoral assistance will be provided and, if so, the type of assistance. In non-mission settings, the DPA provides oversight, with assistance most commonly provided by UNDP under the leadership of the UN Resident Coordinator. In UN mission settings, all UN entities are required to provide their assistance in an integrated fashion under the leadership of the SRSG, guided by principles of integration established by the Security Council for all mandate areas.58

5.  UN entities involved in the provision of assistance 5.1  The Focal Point and the Electoral Assistance Division

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20.18  In 1991, the Secretary-General recommended that a senior official within the Secretariat act as the focal point for UN electoral assistance.59 This was endorsed by the General Assembly, as was a small number of staff to support the work of the official in this regard.60 In 1992, the Secretary-General appointed the Under-Secretary-General for Political Affairs to serve as the Focal Point for electoral assistance activities. That same year, the Electoral Assistance Unit was established, which later became the Electoral Assistance Division. The Division is a division of the DPA.61 20.19  The Under-Secretary-General has a number of functions in his/her capacity as Focal Point, including ensuring consistency in the consideration of requests; assisting the Secretary-General in considering requests of member states; channelling requests to the appropriate UN entity; considering requests for electoral verification; developing (p. 698) an institutional memory; maintaining a roster of international experts; and maintaining contact with regional and other intergovernmental organizations.62 The Focal Point also develops and disseminates electoral policies.63 20.20  For its part, the Electoral Assistance Division provides technical support to the Focal Point. It carries out the needs assessments, makes recommendations to the Focal Point, and advises on the electoral assistance to be provided. It also provides advice and assistance to other UN entities that are engaged in the provision of electoral assistance.64 This model has provided the blueprint for many other areas of UN assistance to member states, in particular civilian capacity in conflict-affected countries.65

5.2  Other UN entities 20.21  United Nations assistance to member states on election matters is a ‘system-wide endeavour’.66 In addition to the DPA, a number of other UN entities are involved in the provision of assistance. These include the DPKO, UNDP, OHCHR, UN Women, UN Volunteers, the UNOPS, and UNESCO. 20.22  As the Electoral Assistance Division does not have the requisite capacity to implement electoral assistance, the DPA and DPKO in general are of particular importance. In mission settings, electoral assistance is provided through electoral assistance components of the relevant mission.67 In such cases, at UN Headquarters, the Electoral (p. 699) Assistance Division works with the lead department (DPA or DPKO) and its integrated task forces of UN entities. Reforms and improvements to deployable UN civilian capacity have made expertise across a range of areas more accessible, such as mediation support and rule-of-law activities, which are made available during electoral processes. In the field, the Electoral Assistance Division works with the political leadership and electoral unit of the mission.68 UNDP, UNOPS, and other UN agencies, funds, and programmes may also have distinct electoral units, which should work under the leadership of one Chief Electoral Officer. With their military and police units and associated transport assets, peacekeeping operations have historically provided by far the greatest capacity assisting countries with their electoral processes. Special political missions rely on specialist civilian expertise and, occasionally, non-armed military and police experts. Electoral assistance invariably requires the engagement of nearly all UN Mission staff and assets, including public affairs, human rights, civil affairs, security, and logistical and transport components.69 20.23  In non-mission settings in which there is no peacekeeping or special political mission, the same headquarters capacities are available with DPA the lead department, but UNDP plays a more significant role in the implementation of the electoral assistance.70 For example, UNDP provides support to the implementation of the technical assistance, coordinates international donor assistance, provides support for international observers, and works with member states in developing and strengthening their electoral management

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bodies.71 Occasionally, the Electoral Assistance Division and UNDP can take different views on the electoral assistance to be provided.72 (p. 700) 20.24  For its part, the OHCHR monitors the human rights situation in the state ‘before, during and after elections in order to foster an environment conducive to credible elections’.73 It also works to ensure the respect of international standards, for example by providing training and advice on human rights monitoring, and providing advice on electoral laws and institutions in order that they are in compliance with human rights standards.74 The OHCHR has also produced a series of documents on human rights and elections.75 20.25  UN Women provides expertise in the area of gender equality, women’s rights, and the participation of women in the electoral process.76 20.26  The role of UN Volunteers concerns the staffing of electoral operations.77 Together with the Electoral Assistance Division, UN Volunteers selects individuals to staff volunteer posts. These volunteers, inter alia, support local authorities in the organization of elections, and assist with voter registration and civic education.78 20.27  The UNOPS provides services and operational support relating to electoral assistance. This includes the procurement of goods, the provision of support relating to logistics and infrastructure, and the recruitment and administration of support personnel. For example, the UNOPS constructs and renovates election offices and counting centres; installs office equipment and communications systems; vets, recruits, and trains electoral staff; and provides support to electoral observation missions.79 20.28  For its part, UNESCO works towards strengthening the media to provide fair and balanced coverage of elections.80 (p. 701) 20.29  Given the various UN entities that are involved in the provision of electoral assistance, the General Assembly has indicated the need for coordination amongst relevant actors.81 The Inter-Agency Coordination Mechanism for Electoral Assistance was established in 2009 to harmonize the work of the UN in this regard and to assist with the sharing of information. The Mechanism is chaired by the Electoral Assistance Division and meets monthly.82

Footnotes: 1

  The term ‘electoral assistance’ is used in this chapter to describe the general category of which election supervision, verification, and observation are all part. The term ‘monitoring’ is sometimes used in the literature to describe the same conduct. The terminology used, particularly in UN reports, is not always consistent, with different terms being used to describe the same form of assistance. See Report of the Secretary-General, Enhancing the effectiveness of the principle of periodic and genuine elections (hereinafter ‘Report of the Secretary-General’), UN Doc A/46/609, 19 November 1991, para 5, noting that ‘the terms “supervision”, “observation”, “verification” and “monitoring” are often employed almost interchangeably’. 2

  Binder and Pippan, ‘Election Monitoring, International’ in MPEPIL (online), para 8. On the UN observation of the elections, see Beigbeder, International Monitoring of Plebiscites, Referenda and National Elections (1994), 120–6. 3

  For a list of plebiscites, referenda, and elections, in trust and non-self-governing territories, that were held under the supervision or observation of the UN, see Report of the Secretary-General, n 1, Annex, ‘Plebiscites, referenda and elections held under the

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supervision or observation of the United Nations in Trust and Non-Self-Governing Territories’. See also Beigbeder, n 2, 129–43. 4

  As late as 1988, UN Secretary-General Javier Perez de Cuellar noted that the UN ‘does not send observers to elections. It could send observers to referendums or elections relating to the exercise of the right of colonial peoples to self-determination, that sort of thing, but it does not take part in political elections.’ Transcript of Press Conference by SecretaryGeneral Javier Perez de Cuellar Held at United Nations Office at Geneva, 5 July 1988, SG/ SM/4158/Rev.1 (1988), quoted in Stoeling, ‘The Challenge of UN-Monitored Elections in Independent Nations’ (1991-2) 28 Stanford JIL 371, at 372, fn 1. 5

  GA Res 43/157 (1988) emphasized the ‘significance of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which establish that the authority to govern shall be based on the will of the people, as expressed in periodic and genuine elections’. It noted further that ‘determining the will of the people requires an electoral process which accommodates distinct alternatives, and that this process should provide an equal opportunity for all citizens to become candidates and put forward their political views, individually and in co-operation with others’. The preamble to the Resolution also recalled that ‘all States enjoy sovereign equality and that each State has the right freely to choose and develop its political, social, economic, and cultural systems’. See also GA Res 44/146 (1989). The resolutions were not uncontroversial, and another resolution on ‘Respect for the principles of national sovereignty and non-interference in the internal affairs of States in their electoral processes’ was adopted alongside. See GA Res 44/147 (1989). Similar pairs of resolutions would be adopted in subsequent years. As Goodwin-Gill, Free and Fair Elections (2006), 24, notes: ‘The resolutions on sovereignty and non-interference operated as counterweight to what many States perceived as an unjustifiable extension of UN activity into the reserved domain of domestic jurisdiction.’ See also Binder and Pippan, n 2, para 10. Over time, the resolutions on sovereignty and noninterference attracted less support. On the possible tension between UN assistance in elections and state sovereignty, see Ebersole, ‘The United Nations’ Response to Requests for Assistance in Electoral Matters’ (1992–3) 33 Virginia JIL 91. For an analysis of the resolutions and the voting pattern of states, see Beigbeder, n 2, 100–4. 6

  Report of the Secretary-General, n 1. The exact title of the report has changed over time. In 2013, the report was published as Report of the Secretary-General, Strengthening the role of the United Nations in enhancing the effectiveness of the principle of periodic and genuine elections and the promotion of democratization: Report of the Secretary-General. 7

  See section 5.1, ‘The Focal Point and the Electoral Assistance Division’.

8

  On the UN role in the elections in Namibia and Nicaragua, see para 20.06 and n 27, respectively.The elections in Nicaragua, which were verified by the UN, were the first instance of the UN monitoring elections in an independent state. 9

  See Suhrke, Wimpelmann, and Dawes, Peace Processes and Statebuilding: Economic and Institutional Provisions of Peace Agreements (2007), Fig 1: Frequency of Provisions, available at http://www.cmi.no/publications/file/2689-peace-processes-and-statebuilding.pdf. 10

  As Ludwig notes in ‘The UN’s Electoral Assistance: Challenges, Accomplishments, Prospects’ in The UN Role in Promoting Democracy (eds Newman and Rich, 2004), 170: ‘Although the organization had no history of assisting with elections in sovereign states, its international membership and neutrality made it a logical choice for undertaking such a sensitive task.’ 11

  See section 3.4, ‘Technical assistance and capacity-building’.

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12

  There were eight requests in 1989 and 28 requests in 2006. One-hundred-and-two requests were from member states and four from non-member states and territories. Report of the Office of Internal Oversight Services on the in-depth evaluation of political affairs: electoral assistance, UN Doc E/AC.51/2007/2/Add.1, 29 March 2007, para 8. Lists of countries and territories that have received electoral assistance from the UN during the period after 2006 can be found in the biennial reports of the Secretary-General on Strengthening the role of the United Nations in enhancing the effectiveness of the principle of periodic and genuine elections and the promotion of democratization. For example, the 2015 report provides that, since the 2013 report, ‘a little over 65 Member States received electoral assistance’: UN Doc A/70/306, 7 August 2015. 13

  Report of the Office of Internal Oversight Services on the in-depth evaluation of political affairs: electoral assistance, n 12, para. 8. 14

  Art 21(1) of the Universal Declaration of Human Rights (UDHR) provides: ‘Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.’ Art 21(3) further provides: ‘The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.’ This was developed in the International Covenant on Civil and Political Rights (ICCPR), Art 25 of which provides: Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a)  To take part in the conduct of public affairs, directly or through freely chosen representatives; (b)  To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c)  To have access, on general terms of equality, to public service in his country. These rights are often recalled in General Assembly resolutions on the issue of periodic and genuine elections. See, eg, GA Res 68/164 (2014). Associated rights in the ICCPR include Art 19 (the right to hold opinions without interference and the right to freedom of expression), Art 21 (the right of peaceful assembly), and Art 22 (the right to freedom of association). 15

  Department of Political Affairs of the United Nations Secretariat and the United Nations Development Programme: Revised Note of Guidance on Electoral Assistance, 2010, para 3. 16

  Report of the Secretary-General, UN Doc A/49/675, 17 November 1994, para 47.

17

  Morrice, Cobos Flores, and O’Shea, Lessons Learned: Integrated Electoral Assistance in UN Mission Settings (2013), 14, available at http://aceproject.org/ero-en/regions/africa/DZ/ lessons-learned-integrated-electoral-assistance-in/view. 18

  The boundaries of each of the forms of assistance are not always clear and some of the forms of assistance blur into one another. Furthermore, as already noted, the terminology used, particularly in UN reports, is not entirely consistent.

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19

  This is due to the time and resources that are needed to organize an election. UN Doc A/ 49/675, n 16, Annex III, Guidelines for Member States considering the formulation of requests for electoral assistance, para 8. 20

  ibid, para 7.

21

  The Agreement on a Comprehensive Political Settlement of the Cambodia Conflict (1992) 31 ILM 183, was concluded on 23 October 1991. In Art 2 of the Agreement, the signatories invited the Security Council to establish a United Nations Transitional Authority in Cambodia (UNTAC). Art 13 of the Agreement provided that UNTAC shall have the responsibility for the organization and conduct of elections to the Constituent Assembly. Pursuant to SC Res 745 (1992), UNTAC was established. This was the first occasion on which the UN organized and conducted elections, and stemmed from the desire expressed in the Settlement Agreement. The electoral component of UNTAC was tasked, inter alia, with establishing a legal framework for the elections, registering voters, registering political parties, tabulating votes, verifying the election, and compiling the results of the election. See Report of the Secretary-General on Cambodia, UN Doc S/23613, 19 February 1992, paras 23–51; Report of the Secretary-General on the conduct and results of the elections in Cambodia, UN Doc S/25913, 10 June 1993; Beigbeder, n 2, 197–212; Doyle, UN Peacekeeping in Cambodia: UNTAC’s Civilian Mandate (1995); Findlay, Cambodia: The Legacy and Lessons of UNTAC (1995); UN, The United Nations and Cambodia, 1991–1995 (1995). UN organization of the elections and popular consultation in Timor-Leste stemmed from the Agreement on the question of East Timor, which was concluded by Indonesia and Portugal in May 1999, and annexed to Question of East Timor, Report of the Secretary-General, UN Doc A/53/951-S/1999/513, 5 May 1999. That Agreement requested the Secretary-General to put a proposed constitutional framework, providing for a special autonomy for East Timor within the unitary Republic of Indonesia, to the East Timorese people for their consideration through a popular consultation. The Secretary-General was also requested to establish a Mission in East Timor for the popular consultation to be carried out. Two additional agreements concerning the modalities for the popular consultation were concluded by the UN, Indonesia, and Portugal, UN Doc S/1999/513, Annexes II–III. Pursuant to SC Res 1246 (1999), the United Nations Mission in East Timor (UNAMET) was established. UNAMET was mandated to ‘organize and conduct a popular consultation … in order to ascertain whether the East Timorese people accept the proposed constitutional framework providing for a special autonomy for East Timor within the unitary Republic of Indonesia or reject the proposed special autonomy for East Timor, leading to East Timor’s separation from Indonesia’. The popular consultation was ‘planned, organized and conducted in three and a half months, an unprecedentedly short time-frame’: Report of the Secretary-General, UN Doc A/54/491, 25 October 1999, para 29. The Secretary-General also appointed an international electoral commission, made up of three members, to oversee the process. On UNAMET and the popular consultation, see the Reports of the Secretary-General on the Question of East Timor; Kingsbury (ed), Guns and Ballot Boxes: East Timor’s Vote for Independence (2000); Martin, Self-Determination in East Timor: The United Nations, the Ballot, and International Intervention (2001). Following the rejection of the proposed constitutional framework (on which see Letter dated 3 September 1999 from the Secretary-General addressed to the President of the Security Council, UN Doc S/ 1999/944, 3 September 1999), the ensuing violence (on which see the Report of the International Commission of Inquiry on East Timor to the Secretary-General, UN Doc A/ 54/726-S/2000/59, 31 January 2000), and the deployment of a multinational force (on which see SC Res 1264 (1999)), the United Nations Transitional Administration in East Timor (UNTAET) was established as a transitional administration mission. SC Res 1272 (1999) endowed UNTAET ‘with overall responsibility for the administration of East Timor’. In October 2000, the UN deployed electoral experts to East Timor to establish the electoral From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

component of UNTAET. The main tasks of the experts were ‘to design the structure of the electoral management body in charge of preparing and conducting the elections, develop a comprehensive operational plan for the conduct of the 2001 elections, design a capacitybuilding programme and establish the basis for a voter education and information programme’: Report of the Secretary-General, UN Doc A/56/344, 19 October 2001, p 16. In SC Res 1338 (2001), the Security Council acknowledged that it was ‘the responsibility of UNTAET to ensure free and fair elections in collaboration with the East Timorese people’. Elections to the Constituent Assembly were held in August 2001 and presidential elections were held in April 2002. See UNTAET, Reg No 2001/2, On the Election of a Constituent Assembly to Prepare a Constitution for an Independent and Democratic East Timor, UNTAET/Reg/2001/2, 16 March 2001; Benzing, ‘Midwifing a New State: The United Nations in East Timor’ (2005) 9 MPUNYB 295; Chesterman, ‘East Timor in Transition: SelfDetermination, State-Building and the United Nations’ (2002) 9 International Peacekeeping 45; Chesterman, You, The People: The United Nations, Transitional Administration, and State-Building (2004), 231–3; Stahn, The Law and Practice of International Territorial Administration (2008), 332–47; Wilde, International Territorial Administration (2008), 178– 88. 22

  In Afghanistan, a Joint Electoral Management Body, comprising the members of the Interim Afghan Independent Electoral Commission and international experts, oversaw the organization of elections in 2004 and 2005. The international persons were appointed by the Special Representative of the Secretary-General for Afghanistan, and one of the international experts was the Chief Election Officer of the UN Assistance Mission in Afghanistan. On the precise composition of the Joint Electoral Management, Body, which varied over time, see Wilde, n 21, 90. See also Report of the Secretary-General, UN Doc A/ 60/431, 14 October 2005, paras 39–43. With respect to Iraq, a number of Security Council Resolutions provided for a role for the UN in the ‘restoration and establishment of national and local institutions for representative governance’. See, eg, SC Res 1483 (2003) and SC Res 1511 (2003). In 2004, the Independent Electoral Commission of Iraq was established. A Board of Commissioners headed the Commission, which comprised nine members, seven of whom were voting members and two of whom were non-voting members. The UN Secretary-General appointed an international electoral expert to the Commission to serve as one of the non-voting members. See UN Doc A/60/431, above, para 58; Coalition Provisional Authority Order No 92, CPA/ORD/31 May 2004/92, Sections 4 and 5; Wilde, n 21, 90, 92. The UN also provided additional electoral assistance for the elections. See UN Doc A/60/431, paras 57–61. 23

  UN Doc A/49/675, n 16, Annex III, Guidelines for Member States considering the formulation of requests for electoral assistance, para 7. 24

  In SC Res 632 (1989), the Security Council decided ‘to implement its resolution 435 (1978) in its original and definitive form to ensure conditions in Namibia which will allow the Namibian people to participate freely and without intimidation in the electoral process under the supervision and control of the United Nations leading to early independence of the Territory’. Pursuant to the Resolution, the United Nations Transition Assistance Group (UNTAG) was established, to assist the Special Representative of the Secretary-General (SRSG). The elections were organized and run by a South African Administrator-General, under the supervision and control of the SRSG. The SRSG certified each stage of the electoral process, from voter registration through to the publication of the final result. On the UN role in the Namibian elections, see Further Report of the Secretary-General concerning the implementation of Security Council Resolution 435 (1978) concerning the question of Namibia, UN Doc S/20967, 14 November 1989; Beigbeder, n 2, 157–63; Ludwig,

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n 10, 174; Stahn, n 21, 220–5; Szasz, ‘The Electoral Process’ in The Namibian Peace Process: Implications and Lessons for the Future (eds Weiland and Braham, 1994). 25

  Report of the Secretary-General, UN Doc A/66/314, 19 August 2011, para 7.

26

  UN Doc A/49/675, n 16, Annex III, Guidelines for Member States considering the formulation of requests for electoral assistance, para 7. 27

  GA Res 46/137 (1991), one of the key resolutions in the area, notes in its preamble that ‘electoral verification by the United Nations should remain an exceptional activity of the Organization to be undertaken in well-defined circumstances, primarily in situations with a clear international dimension’. See also Report of the Secretary-General, UN Doc A/46/609, 19 November 1991, para 79; Report of the Secretary-General, UN Doc A/47/668, 18 November 1992, paras 53–4. The UN has verified a number of electoral processes, starting with the elections in Nicaragua in 1989. On which, see GA Res 44/10 (1989); Letter dated 6 July 1989 from the Secretary-General addressed to the President of the General Assembly, UN Doc A/44/375, 7 July 1989, Appendix: Establishment and Terms of Reference for the United Nations Observer Mission to Verify the Electoral Process in Nicaragua; reports of the United Nations Observer Mission to Verify the Electoral Process in Nicaragua to the SecretaryGeneral; Beigbeder, n 2, 164–9. 28

  The UN mandate to certify elections in Côte d’Ivoire stemmed from the Pretoria Agreement on the Peace Process in the Côte d’Ivoire, 6 April 2005. In SC Res 1765 (2007), acting under Chapter VII of the Charter, the Security Council decided that the SRSG in Côte d’Ivoire ‘shall certify that all stages of the electoral process provide all the necessary guarantees for the holding of open, free, fair and transparent presidential and legislative elections in accordance with international standards’. After some delay, the first round of the presidential elections took place on 31 October 2010, and a second round on 28 November 2010. On the UN role in the elections, see Twenty-sixth progress report of the Secretary-General on the United Nations Operation in Côte d’Ivoire, UN Doc S/2010/600, 23 November 2010; Twenty-seventh progress report of the Secretary-General on the United Nations Operation in Côte d’Ivoire, UN Doc S/2011/211, 30 March 2011. 29

  Declaration of Principles for International Election Observation (2005), para 4.

30

  GA Res 52/129 (1998) ‘recommends that United Nations electoral assistance be geared towards comprehensive observation of the electoral process, beginning with registration and other pre-election activities and continuing through the campaign, election day and the announcement of the election results, in instances where more than technical assistance is required by the requesting State’. 31

  As the Secretary-General put it: ‘An international observer presence help[s] to impress upon the voting public the importance of the election as well as their concern that international standards be maintained.’ The confidence-building extends to the broader international community. UN Doc A/49/675, n 16, para 41. 32

  Department of Political Affairs of the United Nations Secretariat and the United Nations Development Programme: Revised Note of Guidance on Electoral Assistance (2010), para 7(m). Likewise, in 2003, the UN Secretary-General noted that ‘As the provision of technical assistance has increased, requests for direct United Nations electoral observation has decreased. This is in part because the United Nations never observes elections that it organizes or conducts, owing to the obvious conflict of interests.’ Report of the SecretaryGeneral, UN Doc A/58/212, 4 August 2003, para 8. 33

  See section 3.4, ‘Technical assistance and capacity-building’.

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34

  In a number of cases, the UN has referred requests for observation to regional organizations and has provided technical assistance instead. UN Doc A/56/344, n 22, para 35. 35

  In 2015, the Government of Burundi requested that the UN deploy an electoral observer mission for the 2015 elections. Pursuant to SC Res 2137 (2014), the Secretary-General established the United Nations Electoral Observation Mission in Burundi. The Mission observed the legislative and communal elections, the presidential election, and the local council election. In his Report on the United Nations Electoral Observation Mission in Burundi, the Secretary-General noted that ‘despite peaceful polling days and the adequate operational management provided by the electoral authorities, the conditions were not in place for the 2015 electoral process in Burundi to be credible and transparent’: UN Doc S/ 2015/985 (2015). 36

  At the request of the caretaker Government of the Republic of the Fiji Islands, the General Assembly authorized the Secretary-General ‘to establish the United Nations Electoral Observer Mission to monitor the general elections in Fiji [in August 2001] and the immediate post-election environment’: GA Res 55/280 (2001). Some 38 observers from 19 states were deployed to Fiji, and the Mission observed the elections and the period immediately afterwards. See United Nations Electoral Observer Mission for the general elections in Fiji in August 2001, UN Doc A/56/611, 10 November 2001. 37

  The single observer has been an international expert, as well as, on occasion, the UN Resident Coordinator in the state in question. UN Doc A/47/668, n 27, para 60. A single observer was used when a request for observers was made too late for proper observation to take place. UN Doc A/49/675, n 16, para. 30. However, observation by a single observer is considered to provide limited benefit to the state in which the election is taking place, whilst also proving costly for the UN. Accordingly, the Secretary-General considered that such assistance ‘should be authorized only in special cases’: Report of the SecretaryGeneral, UN Doc A/52/474, 16 October 1997, para 31. Precisely what constitutes a special case is unclear. 38

  This was the case, eg, in the elections in Sierra Leone in May 2002. The United Nations Mission in Sierra Leone supported the ‘207 independent international observers’, eg through the provision of briefings and through the facilitation of their accreditation with the electoral authorities. See UN Doc A/58/212, n 32, paras 47–8. The UN has also coordinated international observers for elections in, amongst other states, Algeria, Azerbaijan, Burundi, Chad, the Comoros, Djibouti, Ethiopia, Kenya, Kyrgyzstan, Mali, Nepal, Niger, Nigeria, and Tanzania. UN Doc A/52/474, n 37, para 28; Report of the Secretary-General, UN Doc A/ 48/590, 18 November 1993, para 39. 39

  Coordination of international observers ensures that observation will be consistent and takes place as an integrated whole rather than through piecemeal parts. UN Doc A/49/675, n 16, Annex III, para 11; UN Doc A/48/590, para 38. However, caution has been expressed by the Department of Political Affairs (DPA) and the United Nations Development Programme (UNDP), given that the UN coordination of international observers could ‘give the impression that the UN itself is conducting electoral observation’: Department of Political Affairs of the United Nations Secretariat and the United Nations Development Programme: Revised Note of Guidance on Electoral Assistance (2010), para 7(n). 40

  This was the case with national observers of the national elections in Mexico in August 1994, to whom the UN provided training. This was done for some 30,000 observers: Ludwig, n 10, 176. Assistance was also provided on such matters as ‘observation methodology, logistics, strategic planning and the conduct of quick counts’: UN Doc A/ 49/675, n 16, para 13. Support for national observers facilitated the creation of a network of

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election observers and enabled a consistent observation of the elections. It also supported the building of capacity within the state. UN Doc A/49/675, above, paras 26–8. 41

  Department of Political Affairs of the United Nations Secretariat and the United Nations Development Programme: Revised Note of Guidance on Electoral Assistance (2010) para 3. As the Secretary-General has noted, over time, ‘[r]equests from Member States have tended to become more focused on highly specialized areas such as voter registration, electoral legislation reform and training of electoral officials’: Report of the Secretary-General, UN Doc A/64/304, 14 August 2009, para 6. 42

  See Field Missions Mandate table, 1 October 2016, available at http://www.un.org/en/sc/ repertoire/data.shtml#rel-1. 43

  See further at http://www.un.org/undpa/elections. For example, in the Democratic Republic of the Congo (DRC), the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO), the UNDP, and the United Nations Office for Project Services (UNOPS) provided a range of technical assistance activities, eg supporting ‘operational planning, gender mainstreaming, training, voter education, procurement, deployment of personnel and electoral materials and information technology, such as setting up a website and updating the voter database’. The United Nations Entity for Gender Equality and the Empowerment of Women (UN Women) assisted in the development of training materials on gender mainstreaming in electoral processes; and the United Nations Educational, Scientific and Cultural Organization (UNESCO) provided training for journalists on the reporting on elections. See UN Doc A/68/301, 9 August 2013, Annex I, para 5. In the Central African Republic, the Electoral Assistance Division, with the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic, was tasked with providing technical and logistical assistance to the Transitional Authority, in order to prepare and hold the constitutional referendum as well as free, fair, and inclusive presidential and legislative elections; security for the electoral process, by developing a joint election security plan between the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) and counterparts (CAR Armed Forces, gendarmerie, and national police), and coordinating international technical assistance through the good offices of the Special Representative of the Secretary-General and Head of MINUSCA, as well as through the different national and international partners. See SC Res 2217 (2015). 44

  GA Res 64/155 (2009) recommended that UN technical assistance be provided ‘throughout the time span of the entire electoral cycle, including before and after elections’. 45

  An election is both an event and a process. At one time, UN assistance was provided with respect to the events of election day. Over time, with many member states having conducted their first multi-party election, UN assistance has moved away from the specific event that is election day and towards ‘the consolidation of institutions and processes which are essential to viable democracies’: UN Doc A/52/474, n 37, para 3. 46

  However, the Secretary-General has emphasized that ‘elections are fundamentally political, rather than technical, events; and more importantly they are not an end in themselves’: Report of the Secretary-General, UN Doc A/68/301, n 43, para 45. The Secretary-General continues (at para 50): ‘United Nations electoral assistance, where it is requested and provided, should complement other United Nations system activities—to the extent that they are mandated or requested—in support of peaceful transitions, democratic governance, the rule of law, human rights and gender equality. Just as elections are not isolated technical events but are an integral part of domestic political processes, United Nations electoral support should be part of a broader approach to promoting peace and stability, as well as democratic governance. A good election alone is rarely sufficient to produce good governance; good governance on the other hand tends to produce good elections. I encourage Member States to pay attention to integrating these political, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

security and technical perspectives when adopting mandates for United Nations peace operations.’ 47

  UN Doc A/66/314, n 25, para 5.

48

  It can be made to the local UNDP representative, or through the permanent mission of the relevant state. UN Doc A/49/675, n 16, Annex III, Guidelines for Member States considering the formulation of requests for electoral assistance, para 3. 49

  Department of Political Affairs of the United Nations Secretariat and the United Nations Development Programme: Revised Note of Guidance on Electoral Assistance (2010), para 7(a). 50

  ibid, para 7(a). Not infrequently, requests for assistance are made a week or two prior to the relevant election. Such requests are made too late for assistance to be provided. See UN Doc A/56/344, n 21, para 28. 51

  See section 5.1, ‘The Focal Point and the Electoral Assistance Division’.

52

  Department of Political Affairs of the United Nations Secretariat and the United Nations Development Programme: Revised Note of Guidance on Electoral Assistance (2010), para 7(b). In general terms, a needs assessment will be undertaken for the reasons set out in n 54 and para 20.16. However, it might not be considered necessary where there is a ‘well-defined request for strictly technical assistance’: UN Doc A/49/675, n 16, Annex III, Guidelines for Member States considering the formulation of requests for electoral assistance, para 7. On the Focal Point, see section 5.1, ‘The Focal Point and the Electoral Assistance Division’. 53

  In routine cases, the needs assessment mission will comprise two experts and will last some 10 days. Ludwig, n 10, 172–3. 54

  Department of Political Affairs of the United Nations Secretariat and the United Nations Development Programme: Revised Note of Guidance on Electoral Assistance (2010), para 7(c). On occasion, a government might request assistance to gain the UN stamp of approval for its election, without being willing to make the necessary changes to ensure that the election is free and fair. In other instances, a government might request assistance to obtain funds from donors, while being unwilling to make changes to the election procedure, eg to allow freedom of the press. Needs assessment missions thus enable the UN to ensure that it is not being used to legitimize a substandard process. Ludwig, n 10, 172. For further information on needs assessment missions, see United Nations Focal Point for Electoral Assistance, Guideline, United Nations Electoral Needs Assessments, 11 May 2012; Ludwig, n 10, 171–3. 55

  UN Doc A/66/314, n 47, para 5. It also ‘allows direct discussion of concerns, priorities and resources’; enables the UN to determine which entity is best placed to provide assistance; and contributes to the establishment of a working relationship between relevant individuals. UN Doc A/49/675, n 16, para 44. 56

  UN Doc A/66/314, n 47, para. 30.

57

  A desk assessment will be conducted where, eg, ‘the assistance is not further to a mandate from the Security Council or another UN organ’; electoral assistance has been provided for more than one electoral cycle and the request relates to continued assistance; and where the Electoral Assistance Division considers the political and electoral environmental circumstances are such that a desk assessment is warranted. Department of

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Political Affairs of the United Nations Secretariat and the United Nations Development Programme: Revised Note of Guidance on Electoral Assistance (2010), para 7(d). 58

  For a study of UN integrated electoral assistance, comparing seven large-scale elections and reviewing member state and UN integration and electoral assistance policy, see Morrice, Cobos Flores, and O’Shea, n 17. 59

  UN Doc A/46/609, n 27, para 81.

60

  GA Res 46/137 (1991).

61

  At the outset, there was some debate surrounding the location of the Unit, in particular whether it should be located within the DPA or within what is now the Office of the United Nations High Commissioner for Human Rights (OHCHR). Ludwig, n 10, 171, suggests that the location of the Division within the DPA reflected the view that elections were seen as a tool of conflict resolution. On the issue of whether electoral assistance is best conceived as a human rights issue or a peace-building issue, see Fox, ‘Multinational Election Monitoring: Advancing International Law on the High Wire’ (1994–5) 18 Fordham ILJ 1658, at 1660. For a time, the Electoral Assistance Unit was transferred to the Department of PeaceKeeping Operations, and the Under-Secretary-General for Peace-Keeping Operations was the Focal Point for Electoral Assistance Activities. This was done ‘in an effort to rationalize the functions of both departments and to consolidate those Secretariat units working directly with the field’: UN Doc A/49/675, n 16, paras 5–6. 62

  GA Res 46/137 (1991).

63

  UN Doc A/66/314, n 47, para 10; Department of Political Affairs of the United Nations Secretariat and the United Nations Development Programme: Revised Note of Guidance on Electoral Assistance (2010), para 6(a). 64

  UN Doc A/66/314, n 47, para 11. The DPA and UNDP have described the work of the Electoral Assistance Division thus: ‘[T]he main tasks of the Division are to evaluate requests for electoral assistance, assist the focal point in coordinating electoral assistance activities within the UN system, formulate UN policy and guidelines on electoral matters, undertake needs assessment missions, assist the organizations of the UN system and other appropriate bodies in the design of electoral assistance project activities, develop operational strategies for electoral components of peacekeeping operations, maintain contact with regional and other inter-governmental organizations to ensure appropriate working arrangements with them and avoid duplication of efforts, maintain a roster of electoral experts and serve as the institutional memory of the UN in the electoral field.’ Department of Political Affairs of the United Nations Secretariat and the United Nations Development Programme: Revised Note of Guidance on Electoral Assistance (2010), para 6(b). 65

  Petrie and Morrice, ‘Scrambling and Pulling Together the UN’s Civilian Capacities in Conflict-Prone states’ in Peacebuilding Challenges for the UN Development System (eds Browne and Weiss, 2015), available at http://futureun.org/en/Publications-Surveys/Article? newsid=73&teaserId=4. 66

  UN Doc A/66/314, n 47, para 10. For example, following the death of President Lansana Conté of Guinea, and a coup d’état in 2008, presidential elections were held on 27 June 2010, and a second round on 19 September 2010. Technical support was provided by UNDP; and the Deputy Director of the Electoral Assistance Division provided support to UNDP on the ground. Following a request from the Government, funding for security for the election was provided from the Peacebuilding Fund. The UNOPS provided logistical support

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for the election. And the OHCHR office in Guinea monitored the human rights situation on the ground before, during, and after the elections. UN Doc A//66/314, above, paras 39–40. 67

  For example, pursuant to SC Res 1509 (2003), the United Nations Mission in Liberia (UNMIL) was established. The mandate of UNMIL included providing assistance to the transitional government for the national elections, which were scheduled to take place no later than the end of 2005. Following an electoral needs assessment mission on the part of the Electoral Assistance Division in April 2004, it was decided that the UNMIL would ‘provide significant electoral technical assistance’. Accordingly, UNMIL created an electoral division, which comprised some 30 staff and 150 UN volunteers. UN Doc A/60/431, n 22, paras 62–4. 68

  For example, the Division provides advice and support to the electoral unit of the mission, coordinates the recruitment of personnel to the electoral unit, and provides input on the electoral aspect of the budget. Report of the Office of Internal Oversight Services on the in-depth evaluation of political affairs: electoral assistance, n 12, para 29. 69

  For examples, policy and principles governing these relationships see: Morrice, Cobos Flores, and O’Shea, n 17, 14. 70

  UNDP might also have a role to play in states in which there is a peacekeeping or peacebuilding mission. Report of the Office of Internal Oversight Services on the in-depth evaluation of political affairs: electoral assistance, n 12, para 22. See also UNDP, Electoral Assistance Implementation Guide (2007), 25. 71

  On the work of UNDP, see UNDP, UNDP and Electoral Assistance (2000), 10–11; Report of the Secretary-General, UN Doc A/62/293, 23 August 2007, para 12. 72

  A report of the Office of Internal Oversight Services indicates that UNDP is seen as ‘a close partner of the Government and, as such, may not be as objective as the Division. Similarly, the stakeholders perceive the Division as being more concerned with maintaining electoral assistance standards, ensuring the impartiality of the United Nations and following credible electoral conduct.’ Report of the Office of Internal Oversight Services on the in-depth evaluation of political affairs: electoral assistance, n 12, para 26. 73

  UN Doc A/66/314, n 47, para 14. For example, in Togo, at the request of the Government, the OHCHR monitored the human rights situation before, during, and after the elections of October 2007. This was considered to have contributed to the peaceful electoral environment. UN Doc A/64/304, n 41, para 15. In Timor-Leste, the OHCHR monitored polling stations to ensure that vulnerable voters could vote. This also had the effect of preventing intimidation. UN Doc A/62/293, n 71, para 11. 74

  UN Doc A/66/314, n 47, para 14. For example, the Centre for Human Rights deployed a Mission to Lesotho in November 1991, which advised and commented on the electoral law of Lesotho. It also advised on instructions to polling stations and instructions to voters. See UN Doc A/47/668, n 27, 27; Beigbeder, n 2, 115–16. 75

  The predecessor of OHCHR, the Centre for Human Rights, published a pamphlet on Human Rights and Elections (1994). 76

  UN Doc A/66/314, n 47, para 15. Mainstreaming a gender perspective is one of the principles of all UN electoral assistance efforts: Report of the Secretary-General, UN Doc A/ 68/301, n 43, para 24. 77

  For example, in June 2009, UN Volunteers had deployed some 400 volunteers to 16 states. UN Doc A/64/304, n 41, para. 16. UN Volunteers sometimes comprise the core

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electoral staff in the field. UN Doc A/52/474, n 37, para 9, giving the example of the UN Transitional Administration in Eastern Slavonia, Baranja, and Western Sirmium (UNTAES). 78

  UN Doc A/64/304, n 41, para 16.

79

  UNOPS, Census and Elections (2010), 1. For example, the UNOPS coordinated observers for the elections in the DRC in 2006; and assisted the national electoral commission of Iraq and the United Nations Assistance Mission for Iraq (UNAMI) with the logistics of the referendum in October 2006 and the elections in December 2006. UN Doc A/ 62/293, n 71, para 14. 80

  See at http://www.un.org/undpa/en/elections.

81

  See, eg, GA Res 64/155 (2009). The Secretary-General has taken steps to ensure coordination and reduce the possibility of overlap. See UN Doc A/66/314, n 47, para 17. 82

  UN Doc A/66/314, n 47, para 17.

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Part 3 The United Nations: What it Does, 21 Disaster Relief Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): Regional co-operation — Security assistance

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(p. 702) 21  Disaster Relief 1.  The notion of disaster relief 21.01 2.  The role of the UN in the elaboration of international law relating to disaster relief 21.04 3.  The provision and coordination of disaster relief 21.09 http://www.unocha.org/; Caron, Kelly, and Telesetsky (eds), The International Law of Disaster Relief (2014); de Guttry, Gestri, and Venturini (eds), International Disaster Response Law (2012); IASC, Reference Module for Cluster Coordination at Country Level (July 2015); ILC Draft Articles on the Protection of Persons in the Event of Disasters, UN Doc A/71/10, 2016, 13–73; International Federation of Red Cross and Red Crescent Societies, Law and Legal Issues in International Disaster Response: A Desk Study (2007); Macalister-Smith, International Humanitarian Assistance: Disaster Relief Actions in International Law and Organization (1985); Protection of Persons in the Event of Disasters: Memorandum by the Secretariat, UN Doc A/CN.4/590, 11 December 2007; Reports on the Protection of Persons in the Event of Disasters, by the Special Rapporteur of the International Law Commission, Eduardo Valencia-Ospina, available at http://legal.un.org/ilc/ guide/6_3.shtml; Zwitter et al (eds), Humanitarian Action: Global, Regional and Domestic Legal Responses (2015).

1.  The notion of disaster relief 21.01  The notion of a ‘disaster’ is not a term of art and conceptions are contested. Distinctions are sometimes drawn between disasters and armed conflicts;1 between natural disasters and man-made disasters;2 and between sudden-onset and slow-onset disasters.3 Disaster relief instruments define a disaster in different ways. For example, the (p. 703) International Law Commission (ILC) Draft Articles on the Protection of Persons in the Event of Disasters has defined a disaster as ‘a calamitous event or series of events resulting in widespread loss of life, great human suffering and distress, mass displacement, or largescale material or environmental damage, thereby seriously disrupting the functioning of society’.4 Some instruments do not provide a definition of a disaster at all.5 21.02  Terminology in UN reports and in UN practice is not always consistent, although a distinction tends to be made between ‘complex emergencies’ and ‘disasters associated with natural hazards’.6 Whether the situation is a complex emergency or a disaster (p. 704) associated with natural hazards has institutional consequences, for example regarding which UN agency takes the lead role in the situation.7 21.03  Disaster relief is the relief provided by entities following a disaster, for present purposes, by actors outside the state affected by the disaster.8 As with the notion of a disaster, different instruments take different approaches to the content of disaster relief. Some instruments do not specify precisely which goods and services constitute disaster relief, instead setting out a general definition, such as ‘[“disaster relief”] means goods and services provided to meet the immediate needs of disaster-affected communities’.9 Other instruments combine this general definition with an illustrative list of goods and services, with the Draft Convention on Expediting the Delivery of Humanitarian Assistance, for example, defining ‘relief consignments’ as ‘goods such as vehicles, foodstuffs, seeds and agricultural equipment, medical supplies, blankets, shelter materials or other goods of prime necessity, forwarded as assistance to those affected by disasters’.10

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2.  The role of the UN in the elaboration of international law relating to disaster relief 21.04  The international law of disaster relief exists as a patchwork of norms.11 There are a few multilateral conventions in the area, which regulate the response to specific types (p. 705) of disasters12 or to particular aspects of disasters.13 Other conventions of more general applicability also contain provisions that concern disaster relief.14 More common than agreements of universal scope are regional and sub-regional agreements on disaster relief.15 Bilateral agreements are more common still.16 There is also a plethora of soft law instruments on the subject.17 21.05  A number of attempts have been made over the years to draft an overarching convention on disaster relief, regulating such issues as the initiation and termination of disaster relief, the coordination of disaster relief, and modalities concerning the provision of disaster relief such as visas and taxes. However, none has been successful. 21.06  Following the failure of the International Relief Union (IRU),18 the most sustained efforts to conclude a convention on the subject took place in the 1970s and 1980s.19 (p. 706) In 1976, the Office of the Disaster Relief Coordinator and the League of Red Cross and Red Crescent Societies prepared a study on the obstacles to the provision of disaster relief, and identified measures that could be undertaken to expedite international relief.20 The Economic and Social Council (ECOSOC) noted the report, requested the Disaster Relief Coordinator to continue his efforts, paying ‘special attention to the promotion of measures designed to remove obstacles and to expedite international relief assistance’, and called on states to give consideration to the implementation of the recommendations.21 The ECOSOC resolution was endorsed, in turn, by the General Assembly.22 The Office of the United Nations Disaster Relief Coordinator continued its efforts on the subject and commenced the preparation of a Draft Convention on Expediting the Delivery of Emergency Relief.23 In 1984, the Draft Convention was put before ECOSOC and the General Assembly;24 however, it was not acted upon.25 Leading NGOs in the area, as well as the ICRC and the League of Red Cross and Red Crescent, were also not in favour of the draft Convention, fearing that the period in question was not a propitious one for the conclusion of a convention and that states’ invocation of sovereignty might lead to a reversal of the progress that had been made in the area.26 21.07  Other attempts have also been made to develop guidance for the conduct of international relief, including through the United Nations Institute for Training and (p. 707) Research’s (UNITAR’s) ‘Model Rules for Disaster Relief Operations’,27 through a proposal to regulate the situation of relief units operating in another state in which a disaster occurred,28 and through a convention on the deployment and utilization of urban search and rescue teams.29 However, none would prove successful. 21.08  A further attempt took place in the 2000s, with the ILC commencing work on Draft Articles on the Protection of Persons in the Event of Disasters.30 In August 2016, the ILC adopted the Draft Articles and recommended to the General Assembly the (p. 708) elaboration of a convention on the basis of the Draft Articles.31 It remains to be seen whether this attempt to conclude a convention on the subject will prove successful.

3.  The provision and coordination of disaster relief 3.1  Provision of disaster relief 21.09  The primary responsibility for responding to the disaster and assisting persons affected by the disaster rests with the state that is affected by the disaster.32 The UN and other actors may offer assistance to the affected state.33 The affected state must consent to the provision of external assistance, but this consent must not be arbitrarily withheld.34 In practice, a state that is affected by a disaster does tend to provide its consent to the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

provision of disaster relief.35 However, there has been an occasional (p. 709) instance of lack of consent, or a severely delayed granting of consent.36 The affected state also plays the primary role in the direction, control, coordination, and supervision of the disaster relief.37 Not infrequently, in practice, there are difficulties concerning the modalities of the provision of disaster relief, such as delays in issuing visas and work permits for disaster relief personnel, issues surrounding the import and export of relief goods and equipment, and issues relating to the quality of goods and accountability of personnel.38 There have also been questions concerning the responsibilities of disaster relief providers.39 (p. 710) 21.10  Several UN entities are engaged in the provision of disaster relief. For example, the World Food Programme (WFP) delivers food supplies;40 UNICEF undertakes water, sanitation and hygiene interventions, including distributing water purification tablets and water kits;41 and the World Health Organization (WHO) provides emergency medical supplies and personnel.42 Other UN entities that engage in disaster relief include the United Nations High Commissioner for Refugees (UNHCR), the United Nations Population Fund (UNFPA), and the Food and Agriculture Organization (FAO). The Office for the Coordination of Humanitarian Affairs (OCHA) does not deliver relief; however, it plays a central role in the coordination of relief, information management, and fund-raising.43 NonUN entities also play an important role in the provision of disaster relief, such as the International Organization for Migration (p. 711) (IOM), the IFRC, and NGOs.44 The humanitarian response to the disaster is strengthened through the cluster approach.45

3.2  Coordination of disaster relief at the global level 21.11  Given the number and range of UN entities that are engaged in the provision of disaster relief, not to mention the hundreds of other non-UN entities that provide disaster relief, coordination of that relief is of paramount importance.46 Coordination enables gaps to be filled, duplication of relief efforts to be avoided, and services to individuals by different organizations to be standardized.

3.2.1  Emergency Relief Coordinator 21.12  The position of Emergency Relief Coordinator was established by the SecretaryGeneral in 1991, following a request by the General Assembly to strengthen coordination of humanitarian emergency assistance of the UN.47 The work of the Coordinator was supported by the then Department of Humanitarian Affairs, which later became the OCHA. Pursuant to General Assembly Resolution 46/182 (1991), the mandate of the Emergency Relief Coordinator includes to process requests from member states, coordinate and facilitate the UN response to emergencies, prepare appeals and situation reports, facilitate access to areas affected by the emergency by obtaining the (p. 712) consent of the parties concerned, manage the Central Emergency Revolving Fund, serve as the focal point for interested actors, and provide information to other actors. The Emergency Relief Coordinator also serves as the Head of OCHA, as well as the Under-Secretary-General for Humanitarian Affairs. 21.13  Although the position of Emergency Relief Coordinator was established only in 1991, the UN has long had an interest in the humanitarian response to disasters.48 It had also coordinated the response to disasters for some decades prior to the position’s creation, through the Office of the UN Disaster Relief Coordinator,49 and later through the Department of Humanitarian Affairs.50

(p. 713) 3.2.2  Inter-Agency Standing Committee 21.14  An Inter-Agency Standing Committee (IASC) was established pursuant to General Assembly Resolution 46/182 (1991) to coordinate the inter-agency humanitarian response to disasters and emergencies. The IASC consists of the heads of the operational UN agencies and certain other actors, and is chaired by the Emergency Relief Coordinator.51

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The OCHA serves as its Secretariat. The primary purpose of the IASC is ‘to improve delivery of humanitarian assistance, including the protection of the rights of affected people’.52

3.2.3  The Office for the Coordination of Humanitarian Affairs 21.15  The OCHA was established in 1998, as part of reforms that were undertaken by the Secretary-General, and replaced the Department of Humanitarian Affairs.53 The OCHA is not an operational agency.54 Rather, its three core functions are: the (p. 714) coordination of the humanitarian response to disasters and complex emergencies that do not fall within the mandate of any single UN entity;55 the development of policy;56 and humanitarian advocacy.57 21.16  The head of the OCHA is the Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator. The Assistant Secretary-General and Deputy Emergency Relief Coordinator is the principal adviser to the Under-Secretary-General and focuses on policy and management issues. The OCHA’s executive management consists of the Offices of the Under-Secretary-General and the Assistant Secretary-General. These Offices oversee the Strategic Planning, Evaluation and Guidance Section, which was established to manage the development and implementation of the OCHA’s corporate strategic planning processes, and to promote the application of results-based management within the OCHA. Additionally, the OCHA also comprises the Geneva Office, the Coordination and Response Division, and the Corporate Programmes Division.58 As at April 2016, the OCHA had two headquarters; six regional offices; 30 field offices; 18 humanitarian adviser teams; and three liaison offices.59 (p. 715) 21.17  The OCHA is funded through the regular UN budget and through voluntary contributions.60

3.2.4  Clusters 21.18  In 2005, as part of the Humanitarian Reform Agenda, the IASC approved the creation of thematic ‘clusters’ in areas in which there needed to be particular coordination and collective action between UN entities, the International Red Cross and Red Crescent Movement,61 and NGOs.62 The clusters, and their lead agencies, are: camp coordination and camp management (UNHCR/IOM); early recovery (UNDP); education (UNICEF and Save the Children); emergency telecommunications (WFP); food security (WFP and FAO); health (WHO); logistics (WFP); nutrition (UNICEF); protection (UNHCR); shelter (IFRC/ UNHCR); water, sanitation, and hygiene (UNICEF).63 21.19  The cluster approach is designed, at the global level, to improve humanitarian responses by strengthening preparedness and technical capacity to respond to humanitarian emergencies, by ensuring that there is, inter alia, leadership and accountability.64 At the country level, the cluster approach is designed to ensure a more strategic and effective response to humanitarian emergencies, inter alia through clarifying the roles (p. 716) and responsibilities of the various agencies and organizations.65 The cluster lead, in addition to taking a leading role and supporting the work of the cluster,66 also serves as the provider of last resort, if necessary and where possible.67 21.20  A cluster is activated at the country level when there is a sharp deterioration or significant change in the humanitarian situation, leading to gaps in the humanitarian response or humanitarian coordination; and when the national response or coordination capacity is unable to meet the needs of the affected persons in a manner that respects humanitarian principles ‘due to the scale of need, the number of actors involved, the need for a more complex multi-sectoral approach, or other constraints on the ability to respond

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or apply humanitarian principles’.68 It is activated by the IASC, following transmittal of a proposal from the Humanitarian Coordinator via the Emergency Relief Coordinator.69

3.2.5  UN Disaster Assessment and Coordination System 21.21  The UN Disaster Assessment and Coordination (UNDAC) system was established in 1993.70 Through this system, the OCHA maintains a roster of skilled professionals who are able to be deployed to the scene of a disaster at very short notice.71 It is designed to assist the government of the state affected by the disaster, the UN (p. 717) in-country team, and international responders in the early post-disaster phase, for example by assisting in the coordination of international disaster relief.72 A team is deployed at the request of the state affected by the disaster or of the Resident/Humanitarian Coordinator.73

3.2.6  Central Emergency Response Fund 21.22  The Central Emergency Response Fund (CERF) exists to enhance the capacity of timely response to humanitarian emergencies.74 At its inception, it comprised a loan element and a grant element. The loan element, initially consisting of $50 million, related to money provided to UN agencies, funds, and programmes, as well as to the IOM, at the very outset of an emergency, and thus prior to the issuance of an appeal for funds for the emergency.75 Following General Assembly Resolution 66/119 (2011),76 the loan element of the Fund was reduced from $50 million to $30 million, and the balance of the funds was transferred to the grant element in January 2012.77 The grant element of the Fund, comprising more than $427 million, involves the provision of grants to UN agencies, funds, and programmes, but not the OCHA, for their work in responding to humanitarian emergencies.78 In order to ensure a more (p. 718) equitable response to humanitarian emergencies, up to one-third of the grant element of the Fund is used to provide grants in respect of ‘core emergency humanitarian needs in chronically underfunded emergencies’.79 The remaining two-thirds of the grant element are used ‘to address humanitarian, lifesaving needs for rapid response purposes’.80 States are the principal donors to the CERF, but donors also include private entities. The Fund is managed by the Emergency Relief Coordinator, supported by a secretariat and certain branches of the OCHA.81 An Advisory Group also provides policy advice on the distribution of funds.

3.2.7  Other sources of funding 21.23  The OCHA also administers a Trust Fund for disaster relief.82 Other UN entities have their own emergency funds.83 The UN can also disburse an emergency cash grant to states affected by natural disasters from the regular UN budget.84

3.2.8  Cooperation 21.24  The UN cooperates with other actors in the field of disaster relief, such as the International Red Cross and Red Crescent Movement.85 In 2011, a Memorandum of (p. 719) Understanding was signed by the OCHA and the IFRC in relation to cooperation in the area of international disaster response law.86 The UN also works with a variety of implementing partners in providing disaster relief. The OCHA has undertaken work with the World Customs Organization on the facilitation of disaster relief consignments and developed a Model Customs Agreement on the subject in 1995.87 21.25  Considerable attempts on improving coordination of activities have been made; and coordination itself has improved considerably. However, at times, it remains a weakness.

3.3  Coordination of disaster relief at the country level 3.3.1  Humanitarian Coordinator

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21.26  At the country level,88 the Humanitarian Coordinator has the responsibility for leading and coordinating the humanitarian assistance and protection activities in the postdisaster phase.89 The pre-existing Resident Coordinator in the country may be (p. 720) designated the Humanitarian Coordinator;90 alternatively, a Humanitarian Coordinator may be appointed to serve alongside the Resident Coordinator.91 The Humanitarian Coordinator reports to the Emergency Relief Coordinator. 21.27  The OCHA assists the Humanitarian Coordinator to coordinate the response on the ground. He/she is also supported by a disaster management team, which is structured along the lines of the IASC.92

3.3.2  Humanitarian country team 21.28  A humanitarian country team is established in all countries in which there is the position of Humanitarian Coordinator. It is also established in countries in which there is not such a position, when a humanitarian crisis takes place or when there is a sharp deterioration in a situation of chronic vulnerability.93 The Humanitarian Country Team is composed of ‘organisations that undertake humanitarian action in-country and that commit to participate in coordination arrangements’.94 It is led by the Humanitarian Coordinator, with secretariat support provided by the OCHA.95 The Humanitarian Country Team is responsible for agreeing common strategic issues (p. 721) and common policies related to humanitarian action in the relevant country,96 and promoting adherence to the humanitarian principles, IASC guidelines, and other relevant policies.97

3.3.3  Country-based pooled funds 21.29  Country-based pooled funds are ‘multi-donor humanitarian financing instruments’.98 They are established by the Emergency Relief Coordinator, and managed by the OCHA at the country level under the auspices of the Humanitarian Coordinator. Donors provide contributions to the country-based pooled funds, which are allocated on the basis of ‘identified humanitarian needs and priorities at the country level’.99 Funds from the country-based pooled funds can be allocated to UN entities, the IOM, Red Cross and Red Crescent organizations, and national and international NGOs.100 Country-based pooled funds are intended to improve the effectiveness of the humanitarian response, in particular through directing funds to priority humanitarian needs, strengthening the role of the Humanitarian Coordinator, and mobilizing resources and coordination.101

Footnotes: 1

  For example, the draft Convention on Expediting the Delivery of Emergency Relief, UN Doc A/39/267/Add.2-E/1984/96/Add.2, 18 June 1984, Art 1. 2

  For example, the Agreement between Member States and Associate Members of the Association of Caribbean States for Regional Cooperation on Natural Disasters (1999), Art 1(1), referring to a ‘natural disaster’. 3

  For example, Art 1(d) of the Agreement Establishing the Caribbean Disaster Emergency Response Agency (1991) defines a disaster as a ‘sudden event’. 4

  Art 3 of the ILC’s Draft Articles on the Protection of Persons in the Event of Disasters, UN Doc 71/10, 2016. Art 1(6) of the Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations (1988) defines a disaster as ‘a serious disruption of the functioning of society, posing a significant, widespread threat to human life, health, property or the environment, whether caused by accident, nature or human activity, and whether developing suddenly or as the result of complex, long-term processes’. Art 1(d) of the Agreement Establishing the Caribbean Disaster Emergency Response Agency (1991) defines a disaster as ‘a sudden event attributable directly and solely either to the operation of the forces of nature or to human

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intervention or to both of them and characterised by widespread destruction of lives or property accompanied by extensive dislocation of public services, but excluding events occasioned by war, military confrontation or mismanagement’. Art 2 of the Agreement among the Governments of the Participating States of the Black Sea Economic Cooperation (BSEC) on Collaboration in Emergency Assistance and Emergency Response to Natural and Man-Made Disasters (1998) defines a disaster as ‘an event in a definite area that has occurred as a result of an accident, hazardous natural phenomena, catastrophe, natural or man-made, which may or have caused significant physical, social, economic and cultural damage to human lives or environment’. For a range of definitions, see the compilations in: International Federation of Red Cross and Red Crescent Societies (IFRC), Law and Legal Issues in International Disaster Response: A Desk Study (2007), 22– 3; Protection of Persons in the Event of Disasters, Memorandum by the Secretariat, Addendum, Annex I, UN Doc A/CN.4/590/Add.1, 26 February 2008, 5–8. 5

  For example, Inter-American Convention to Facilitate Disaster Assistance (1991).

6

  See, eg, Report of the Secretary-General, Strengthening of the coordination of emergency humanitarian assistance of the United Nations, UN Doc A/71/82-E/2016/60, 26 April 2016. In his report on International cooperation on humanitarian assistance in the field of natural disasters, from relief to development, UN Doc A/60/227, 12 August 2005, the SecretaryGeneral noted at para 1: ‘In the present report, the expression “natural disasters” will not be used, as it conveys the mistaken assumption that disasters occurring as a result of natural hazards are wholly “natural”, and therefore inevitable and outside human control. Instead, it is widely recognized that such disasters are the result of the way individuals and societies relate to threats originating from natural hazards. The nature and scale of threats inherent in hazards vary. The risks and potential for disasters associated with natural hazards are largely shaped by prevailing levels of vulnerability and measures taken to prevent, mitigate and prepare for disasters. Thus, disasters are, to a great extent, determined by human action, or the lack of it. The expression “disasters associated with natural hazards” will therefore be used … ’. An example of the relationship between natural hazards and human action is the 2011 earthquake and tsunami off the coast of Japan. The earthquake and tsunami were ‘natural disasters’; however, the subsequent events relating to the Fukushima Daiichi nuclear plant were determined by human action. The Inter-Agency Standing Committee defines a complex emergency as ‘a humanitarian crisis in a country, region or society in which there is total or considerable breakdown of authority resulting from internal or external conflict and which requires an international response that goes beyond the mandate or capacity of any single agency and/or the ongoing United Nations country programme’. Working Paper on the Definition of Complex Emergency, Inter-Agency Standing Committee, December 1994. 7

  For example, the United Nations High Commissioner for Refugees (UNHCR) is the lead agency in the ‘camp coordination and camp management’ cluster in conflict-related internal displacement situations, whereas the International Organization for Migration (IOM) is the lead entity in natural disaster-related internal displacement situations. Likewise, the UNHCR is the lead entity in the ‘shelter’ cluster in conflict-related internal displacement situations, whereas it is the IFRC in natural disaster-related internal displacement situations.Complex emergencies are sometimes seen as more politically sensitive than disasters associated with natural hazards. As such, greater consultation within the UN family often takes place in formulating a response. 8

  On occasion, the entity, such as the UNHCR or the United Nations Children’s Fund

(UNICEF), might already be present in the country when the disaster strikes.

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9

  For example, Art 2(2) of the International Federation of the Red Cross, Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (2007). Some instruments also subdivide goods into goods and equipment. See, eg, Agreement among the Governments of the Participating States of the Black Sea Economic Cooperation (BSEC) on collaboration in Emergency Assistance and Emergency Response to Natural and Man-Made Disasters (1998), Article 2. 10

  Draft Convention on Expediting the Delivery of Humanitarian Assistance, UN Doc A/ 39/267/Add.2, 18 June 1984, Art 1(c). For other definitions, see Protection of Persons in the Event of Disasters, Memorandum by the Secretariat, Addendum, Annex I, UN Doc A/CN. 4/590/Add.1, 26 February 2008, 10–11. 11

  On the legal framework, see IFRC, n 4, ch 4; Protection of Persons in the Event of Disasters, Memorandum of the Secretariat, Addendum, Annex II, UN Doc A/CN.4/590/Add. 2, 31 March 2008; de Guttry, ‘Surveying the Law’ in International Disaster Response Law (eds de Guttry, Gestri, and Venturini, 2012), 3. 12

  For example, the Convention on Assistance in the Case of a Nuclear Accident of Radiological Emergency (1986). 13

  For example, the Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations (1988); and the Framework Convention on Civil Defence Assistance (2000). 14

  For example, the International Convention on the Simplification and Harmonization of Customs Procedures (as amended), Specific Annexes B.3 and J.5. 15

  For example, the Inter-American Convention to Facilitate Disaster Assistance (1991); Association of South East Asian Nations (ASEAN) Agreement on Disaster Management and Emergency Response (2005). 16

  For example, Agreement between the Swiss Federal Council and the Government of the Republic of the Philippines on Cooperation in the Event of Natural Disaster or Major Emergencies (2001); Agreement between Austria and Federal Republic of Germany concerning Mutual Assistance in the Event of Disasters or Serious Accidents (1988). 17

  See, eg, the Guiding Principles on Humanitarian Assistance, annexed to GA Res 46/182 (1991); Operational Guidelines on Human Rights and Natural Disasters, UN Doc A/HRC/ 4/38/Add.1, 23 January 2006, adopted by the Inter-Agency Standing Committee. See also the Principles and Rules for Red Cross and Red Crescent Disaster Relief (1996) 310 IRRC Annex IV; Declaration of Principles for International Humanitarian Relief to the Civilian Population in Disaster Situations, XXI International Conference of the Red Cross 1969, Res XXVI. Other work includes that of the International Law Association and its consideration of certain legal issues associated with disaster relief. In 1980, it proposed two model agreements, one between a donor state and the recipient state, and the other between a donor organization and the recipient state. The latter was subdivided into intergovernmental organizations and non-governmental organizations (NGOs). See International Law Association, Report of the Fifty-Fifth Conference (1972), 317–27; Report of the Fifty-Seventh Conference (1976), 309–20; Report of the Fifty-Eighth Conference (1978), 461–72; Report of the Fifty-Ninth Conference (1980), 512–17. The Institut de Droit International also adopted a resolution in 2003 on Humanitarian Assistance (Bruges session). 18

  In 1927, the Convention Establishing an International Relief Union was adopted. Pursuant to Art 1 of the Convention, the International Relief Union (IRU) had a mandate to carry out a variety of disaster-related functions, namely, to furnish aid to persons affected by a disaster, to raise funds and assistance for this purpose, to coordinate efforts of relief organizations, to encourage the study of preventive measures, and ‘to induce all peoples to render mutual international assistance’. However, the IRU was largely unsuccessful. It had From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

very limited funds; a number of states were ambivalent towards it; the vast majority of states that were affected by a disaster indicated that they did not need the IRU’s assistance; and there were very real tensions with different actors, notably the International Committee of the Red Cross (ICRC) and the League of Red Cross Societies. 19

  On the efforts, see Macalister-Smith, International Humanitarian Assistance: Disaster Relief Actions in International Law and Organization (1985). 20

  See Office of the United Nations Disaster Relief Coordinator: Report of the SecretaryGeneral, UN Doc A/32/64, 12 May 1977, para 36 and Annex II. The Recommendations included the designation of a single relief authority within a state, as well as changes to the modalities surrounding the delivery of relief, including certificates of origin and invoices, customs, visas, communications, and landing rights. These matters continue to pose difficulties in the delivery of disaster relief. For example, it is regularly reported that, due to customs regulations, relief containers are unable to enter the country and perishable products go to waste. Likewise, due to visa restrictions, relief personnel enter on tourist visas and consequently leave and re-enter the country at regular intervals. See, eg, IFRC, n 4, chs 9 and 10. 21

  ECOSOC Res 2102 (LXIII) (1977).

22

  GA Res 32/56 (1977). The XXIIIrd International Conference of the Red Cross (1977), in Res VI, also endorsed the recommendations and recommended their implementation. See ‘Resolutions of the XXIIIrd International Conference of the Red Cross’ (December 1977) 17 IRRC 511. 23

  A draft Convention was drawn up and examined by experts and representatives of UN entities pursuant to a request of the Disaster Relief Coordinator for principles in the area. See Macalister-Smith, n 19, 159. It contained detailed provisions on, inter alia, assistance and notification, modalities for delivering the assistance, and communications facilities. Office of the United Nations Disaster Relief Coordinator: Report of the Secretary-General, Addendum, Proposed draft convention on expediting the delivery of emergency relief, UN Doc A/39/267/Add.2-E/1984/96/Add.2, 18 June 1984. 24

  ECOSOC transmitted the draft Convention to the General Assembly (ECOSOC Decision 1984/175). The Convention was also contained in the Office of the United Nations Disaster Relief Coordinator: Report of the Secretary-General, UN Doc A/39/267-E/1984/96, 15 June 1984, paras 58–9 and UN Doc A/39/267/Add.2-E/1984/96/Add.2, 18 June 1984. 25

  Franck, ‘Non-Treaty Law-Making: When, Where and How?’ in Developments of International Law in Treaty Making (eds Wolfrum and Röben, 2005), 424, observes that the draft Convention was ‘noted and promptly forgotten’. 26

  See Beigbeder, The Role and Status of International Humanitarian Volunteers and Organizations (1991), 378–9, summarizing a 1984 memorandum from the League of Red Cross and Red Crescent and the ICRC to the Office of the UN Disaster Relief Coordinator (UNDRO). 27

  The Model Rules, published in 1982, were a continuation of the work of the Office of the Disaster Relief Coordinator and the League of Red Cross and Red Crescent Societies. The rules were based on the premise that an agreement would be concluded between the recipient state and the donor entity. The agreement included provisions on transport and handling facilities, exemption from customs duties, and other practical difficulties encountered in disaster relief. See El Baradei et al, Model Rules for Disaster Relief Operations (1982).

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28

  Three possible relationships were considered to arise: a relief unit of one state operating in another state under a bilateral agreement; a relief unit of one state operating in another state with the UN as an intermediary, as was the case with a technical cadre unit of the Swedish Stand-By Force for United Nations Service, which was made available for service in 1970 following the Peruvian earthquake (739 UNTS 127); and a relief unit of the UN operating in a state. Questions arose before the General Assembly in 1965 surrounding the legal status of each of these units, as well as issues of jurisdiction and liability. MacalisterSmith, n 19, 150–1. The Secretary-General recommended that, depending on the relationship between the relief unit and the UN, an agreement should be concluded between the UN and the receiving state. If the unit were created by the UN, it would be a subsidiary organ of the UN. If the unit were not created by the UN but had an association with the UN, for example one of coordination or administration, it would be a separate entity but there might be a contractual, or other, relationship with the UN. In both such cases, an agreement should be concluded that provided for such matters as the authority responsible for the command of the unit, privileges and immunities, coordination and reporting. See E/4994 (1971) Annex III, reproduced in part in [1971] UN Juridical YB 187. However, no such model agreement would be forthcoming. 29

  The Secretary-General recommended the development of a legal framework in the area to consider issues that could be resolved prior to the occurrence of a disaster, in particular a convention on the deployment and utilization of international urban search and rescue teams. The Convention was intended to cover such matters as the use of a state’s air space, customs regulations for the import of rescue materiel, and the clarification of the respective roles of donor and recipient states. Strengthening of the Coordination of Emergency Humanitarian Assistance, Report of the Secretary-General, UN Doc A/55/82-E/2000/61, 30 May 2000, para 135. No convention would be concluded. However, GA Res 57/150 (2002) approved Guidelines of the International Search and Rescue Advisory Group, describing them as a ‘flexible and helpful reference tool’. The Guidelines have been implemented in the work of search and rescue teams following a number of disasters, such as the 2003 earthquake in Iran and the 2004 tsunami in the Indian Ocean. Following the conclusion of the search and rescue efforts, lessons-learned meetings were undertaken and the Guidelines improved. See International Cooperation on Humanitarian Assistance in the Field of Natural Disasters, from Relief to Development, Report of the Secretary-General, UN Doc A/60/227, 12 August 2005, paras 66–72. See generally Bookmiller, ‘The International Law of 96 Hours: Urban Search and Rescue Teams and the Current State of International Disaster Response Law’ in The International Law of Disaster Relief (eds Caron, Kelly, and Telesetsky, 2014). 30

  See the reports of the Special Rapporteur, Eduardo Valencia-Ospina, and the Yearbooks of the ILC from 2008 onwards. See also Protection of Persons in the Event of Disasters: Memorandum of the Secretariat, UN Doc A/CN.4/590, 11 December 2007. Around the same period, the IFRC also produced Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (2007); and a Model Act for the Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (2013). Both are intended to operate at the domestic level. 31

  Report of the International Law Commission, 68th session, UN Doc A/71/10 (2016), para 46. 32

  See, eg, Guiding Principles on Humanitarian Assistance, annexed to GA Res 46/182 (1991), which provides that ‘Each State has the responsibility first and foremost to take care of the victims of natural disasters and other emergencies occurring on its territory.’ See also ILC, Draft Articles on the Protection of Persons in the Event of Disasters, n 4, Art 10(1), which provides: ‘The affected State has the duty to ensure the protection of persons and provision of disaster relief assistance in its territory, or in territory under its jurisdiction or control.’ State sovereignty has been stressed over the years in relevant General From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Assembly resolutions. See, eg, GA Res 36/225 (1981); GA Res 43/131 (1988); GA Res 57/150 (2003). See further Katoch, ‘International Natural Disaster Response and the United Nations’ in International Federation of Red Cross and Red Crescent Societies, International Disaster Response Laws, Principles and Practice: Reflections, Prospects and Challenges (2003), 47, at 49–51. 33

  See, eg, ILC, Draft Articles on the Protection of Persons in the Event of Disasters, n 4, Art 12(1), which provides that ‘[i]n the event of disasters, States, the United Nations, and other potential assisting actors may offer assistance to the affected State’. 34

  See ibid, Art 13(1) and (2). On the reaction of states to the draft Article, see Eighth Report on the Protection of Persons in the Event of Disasters, UN Doc A/CN.4/697, 17 March 2016, 62–9. Certain other instruments use the same standard. See Guiding Principles on Internal Displacement, Principle 25(2); Council of Europe Recommendation (2006) 6, para 4; Institut de Droit International, Santiago de Compostela Resolution (1989): The Protection of Human Rights and the Principle of Non-Intervention in Internal Affairs of States, Art 5; Institut de Droit International, Bruges Resolution (2003): Humanitarian Assistance, Art VIII(1). On the meaning of arbitrary withholding of consent in situations of disaster, see Fourth Report on the protection of persons in the event of disasters by Eduardo Valencia-Ospina, Special Rapporteur, UN Doc A/CN.4/643 (2011); Sivakumaran, ‘Arbitrary Withholding of Consent to Humanitarian Assistance in Situations of Disaster’ (2015) 64 ICLQ 501, at 516–30. However, the arbitrary withholding of consent standard is not free from debate. Other instruments take different approaches to the issue of consent, eg providing for an absolute requirement of consent before external disaster relief may be provided. See, eg, Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations (1988), Art 4(5). On the standard, see generally Allan and O’Donnell, ‘A Call to Alms? Natural Disasters, R2P, Duties of Cooperation and Uncharted Consequences’ (2012) 17 JCSL 337; Allan and O’Donnell, ‘An Offer You Cannot Refuse? Natural Disasters, the Politics of Aid Refusal and Potential Legal Implications’ (2013) 36 Amsterdam Law Forum 36; Heath, ‘Disasters, Relief, and Neglect: The Duty to Accept Humanitarian Assistance and the Work of the International Law Commission’ (2011) 43 NYU JILP 419, 450–8; Sivakumaran, above; Trascasas, ‘Access to the Territory of a Disaster-Affected State’ in de Guttry, Gestri, and Venturini (eds), n 11, 221. 35

  In practice, states often request disaster relief, or indicate that they would welcome it without explicitly requesting it. See IFRC, n 4, 90–1. 36

  For example, Cyclone Nargis hit the Irrawaddy Delta in Myanmar on 2 May 2008, and a humanitarian crisis unfolded. Notwithstanding the crisis, the Government of Myanmar initially refused international aid and did not lift visa restrictions for humanitarian workers. Such was the ensuing humanitarian crisis, the then French Foreign Minister, Bernard Kouchner, called on the UN Security Council to pass a resolution authorizing the delivery of aid to the survivors of the cyclone and imposing this on the Government of Myanmar. Whilst some advocated the use of the responsibility to protect doctrine following Cyclone Nargis, on the basis of, inter alia, the commission by the Government of Myanmar of crimes against humanity due to the imposition of restrictions on humanitarian aid, others, including the International Commission on Intervention and State Sovereignty, suggested that the use of the doctrine of ‘responsibility to protect’ in the crisis would damage it beyond repair. See Barber, ‘The Responsibility to Protect the Survivors of Natural Disaster: Cyclone Nargis, a Case Study’ (2009) 14 JCSL 1; Haacke, ‘Myanmar, the Responsibility to Protect and the Need for Practical Assistance’ (2009) 1 Global Responsibility to Protect 2; CaballeroAnthony and Chng, ‘Cyclones and Humanitarian Crises: Pushing the Limits of R2P in Southeast Asia’ (2009) 1 Global Responsibility to Protect 2; Bellamy, Responsibility to Protect: The Global Effort to End Mass Atrocities (2009); Bellamy and Beeson, ‘The

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Responsibility to Protect in Southeast Asia: Can ASEAN Reconcile Humanitarianism and Sovereignty?’ (2010) 6 Asian Security 3. 37

  See, eg, Guiding Principles on Humanitarian Assistance, annexed to GA Res 46/182 (1991), which provide that ‘the affected State has the primary role in the initiation, organization, coordination, and implementation of humanitarian assistance within its territory’. See also, amongst other instruments, ASEAN Agreement on Disaster Management and Emergency Response (2005), Art 3(2); Inter-American Convention to Facilitate Disaster Assistance (1991), Art IV(a); Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations (1988), Art 4(8); ILC, Draft Articles on the Protection of Persons in the Event of Disasters, n 4, Art 10(2). 38

  For example, not infrequently, there are lengthy delays in issuing relief personnel visas and work permits. As such, relief personnel sometimes enter on tourist visas and leave the country periodically in order to renew their visas. There can be lengthy delays in inspecting relief goods, leading to food passing its use by date. In other instances, goods that are not needed by persons affected by the disaster, or which are culturally inappropriate, are sent to the state affected by the disaster. Relief goods might also be taxed when imported, or equipment taxed when exported. Relief personnel are not always suitably qualified to provide assistance, or have made assistance contingent on religious conversion. See generally IFRC, n 4. 39

  One contentious example concerns the involvement of the Nepalese contingent of the UN Stabilization Mission in Haiti (MINUSTAH) in the outbreak of cholera in Haiti following the January 2010 earthquake. Following a series of denials over the involvement of peacekeepers in the outbreak, the UN indicated that it ‘has become convinced that it needs to do much more regarding its own involvement in the initial outbreak and the suffering of those affected by cholera’. Email of the Deputy Spokesperson for the Secretary-General, quoted in Katz, ‘UN admits Role in Cholera Epidemic in Haiti’ New York Times (17 August 2016). The Secretary-General has also referred to the UN’s ‘moral responsibility to the victims of the cholera epidemic’ (‘Statement Attributed to the Spokesman for the SecretaryGeneral on Haiti’, 19 August 2016, available at https://www.un.org/sg/en/content/sg/ statement/2016–08–19/statement-attributable-spokesman-secretary-general-haiti). In terms of legal responsibility, the UN has argued that claims against the UN in relation to the cholera outbreak are not receivable pursuant to Section 29 of the Convention on Privileges and Immunities of the UN. Letter from Patricia O’Brien, Under-Secretary-General for Legal Affairs, to Brian Concannan, Director, Institute for Justice and Democracy in Haiti, 21 February 2013. As a result of the view that the claims were not receivable, the UN also declined a request for a standing claims commission and the engagement of a mediator. Letter from Patricia O’Brien, Under-Secretary-General for Legal Affairs, to Brian Concannan, Director, Institute for Justice and Democracy in Haiti, 5 July 2013. In Georges et al v United Nations et al, Decision of 18 August 2016, the United States Court of Appeals for the Second Circuit found that the UN had immunity. On immunity and non-receivability, see ch 16, ‘United Nations Privileges and Immunities’. See generally, Report of the Special Rapporteur on extreme poverty and human rights, UN Doc A/71/40823, 26 August 2016. 40

  For example, in 2014, the WFP delivered 13,000 metric tons of mixed food commodities into Ebola-affected regions throughout West Africa via a dedicated vessel loaded from Cotonou, Dakar, and Les Palmas. See WFP, WFP Logistics in 2014, 8, 9. The Mission Statement of the World Food Programme (1994) provides, inter alia: ‘Consistent with its mandate, which also reflects the principle of universality, WFP will continue to: … meet refugee and other emergency food needs, and the associated logistics support. … The core policies and strategies that govern WFP activities are to provide food aid: to save lives in refugee and other emergency situations … WFP is well placed to play a major role in the continuum from emergency relief to development. WFP will give priority to supporting From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

disaster prevention, preparedness and mitigation and post-disaster rehabilitation activities as part of development programmes. Conversely, emergency assistance will be used to the extent possible to serve both relief and development purposes. In both cases the overall aim is to build self-reliance.’ 41

  For example, following Super Typhoon Haiyan making landfall in the Philippines in November 2013, UNICEF provided access to safe water to some 1 million people in partnership with other actors. It provided 4,000 emergency latrines for the benefit of 80,000 people, and worked with others to re-establish sanitation facilities. See UNICEF, Water, Sanitation and Hygiene in Humanitarian Action: Annual Report 2013, 4. 42

  For example, as part of the Ebola outbreak in West Africa in 2014, the WHO mobilized 58 foreign medical teams to manage more than 60 treatment centres and distributed almost 1.5 million sets of personal protective equipment utilized in the treatment of Ebola patients. See WHO, Ebola Outbreak: Taking Action from Response to Recovery (July 2015). As at August 2016, the WHO was in the middle of a transformation, with the establishment of a new ‘Health Emergencies Programme’. The Programme has been described as ‘a fundamental change for the Organization, complementing WHO’s traditional technical and normative role with new operational capacities and capabilities for its work in outbreaks and humanitarian emergencies’. WHO Health Emergency Programme Results Framework and Budget Requirements 2016–17, 16 May 2016, 1. The Programme is designed to ‘help Member States build their capacity to manage health emergency risks and, when national capacities are overwhelmed, to lead and coordinate the international health response to contain outbreaks and provide effective relief and recovery to affected people’ (WHO’s New Health Emergencies Programme (June 2016), 1). Art 2(d) of the Constitution of the World Health Organization (1946) itself provides that one of the functions of the WHO is ‘to furnish appropriate technical assistance and, in emergencies, necessary aid upon the request or acceptance of Governments’. 43

  See section 3.2.3, ‘The Office for the Coordination of Humanitarian Affairs’.

44

  For example, following Super Typhoon Haiyan, the IOM distributed some 63,700 emergency shelter kits and 95,000 non-food item (NFI) kits, as well as recovery shelter kits and complete transitional shelters. In 2014, the IOM distributed NFIs to over 550,000 households; provided shelters to, or supported the building of shelters for, 220,000 households; and provided cash assistance to 63,000 households. IOM Shelter and Settlements Update: August 2015, 2 and 59–60. In 2016, a relationship agreement was concluded between the UN and the IOM (GA Res 70/976 (2016)).The IFRC provides humanitarian assistance following disasters, principally by providing emergency shelter and settlement to persons displaced by natural disasters; emergency healthcare, including rapid deployment hospitals in disaster zones; water and sanitation, including providing clean water services to communities whose water supplies have been damaged or destroyed by natural disasters; and tracing and restoring family links following separation during natural disasters. For example, following the Haiti earthquake in 2010, the IFRC provided 23,224 shelter solutions to protect Haitians whose homes were damaged in the earthquake. See IFRC, Shelter Technical Brief: Haiti Earthquake Operation—24 Months (2012), 4. The IFRC also gives food assistance to those affected by disasters, including providing funding to its affiliate in the Philippines to prepare hot meals for up to 52,000 individuals in evacuation centres and issue food rations to approximately 24,300 households affected by Typhoon Hagupit. See IFRC, Annual Report 2014, 12. 45

  On the cluster approach, see section 3.2.4.

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46

  The situation on the ground in the state affected by the disaster can be chaotic, with hundreds of actors descending on the state, leading to logjams in airports and roads, and a backlog of relief goods that need to be processed. 47

  The General Assembly, in GA Res 46/182 (1991), provided that ‘a high-level official (emergency relief coordinator) would be designated by the Secretary-General to work closely with and with direct access to him, in cooperation with the relevant organizations and entities of the system dealing with humanitarian assistance and in full respect of their mandates, without prejudice to any decisions to be taken by the General Assembly on the overall restructuring of the Secretariat of the United Nations. This high-level official should combine the functions at present carried out in the coordination of United Nations response by representatives of the Secretary-General for major and complex emergencies, as well as by the United Nations Disaster Relief Coordinator.’ 48

  UN activities in the area of the humanitarian response to disasters were initially ad hoc. Resolutions were adopted in the General Assembly and ECOSOC and reports published. See, e.g., ECOSOC Res 254 (IX) (1949); ECOSOC Res 746 (XXIX) (1960); ECOSOC Res 766 (XXX) (1960); GA Res 525 (VI) (1952); GA Res 1753 (XVII) (1962); GA Res 1882 (XVIII) (1963). See also Macalister-Smith, n 19, 93–5. In 1964, ECOSOC requested the SecretaryGeneral to consider assistance that the UN might be able to provide following the occurrence of a natural disaster, the resources that this would require, and alternative means of providing that assistance (ECOSOC Res 1049 (XXXVII) (1964)). The SecretaryGeneral reported back to ECOSOC and to the General Assembly on the matter, indicating a willingness to coordinate the UN response to natural disasters and proposing the establishment of a working capital fund. The focus was on the provision of experts and the promotion of pre-disaster planning by states (UN Doc A/5845 (1965)). This led to the adoption of GA Res 2034 (XX) (1965), which called on UN entities to improve their coordination and recommended to states the creation of national mechanisms to unify operations. See Samuels, ‘Organized Responses to Natural Disasters’ in The International Law and Policy of Human Welfare (eds Macdonald, Johnston, and Morris, 1978), 675, at 680–1. On the work of the IRU, which pre-dated the UN, see para 21.06; Convention Establishing an International Relief Union (1927); Borgeaud, L’Union Internationale de Secours (1932); Gorgé, The International Relief Union (1938); Byrne, ‘The International Relief Union’ (1928) 134 The Contemporary Review 365; Macalister-Smith, ‘The International Relief Union: Reflections on Establishing an International Relief Union of July 12, 1927’ (1986) 54 Legal History Review 363; Hutchinson, ‘Disasters and the International Order: The International Relief Union’ (2001) 23 International History Review 253. 49

  In 1972, pursuant to GA Res 2816 (XXVI) (1971), the UNDRO was established. This followed a report of the Secretary-General on Assistance in Cases of Natural Disasters, E/ 4994 (1971), and recognition that the then ad hoc arrangements were insufficient. As the Resolution envisaged, and the name suggested, the UNDRO and the role of Disaster Relief Coordinator was primarily one of coordination rather than operational. The UNDRO worked on disaster preparedness, mobilization and coordination of UN relief efforts, coordination of UN efforts with those of other intergovernmental organizations and NGOs, the collection and dissemination of information, and the provision of advice. The UNDRO led the UN response to natural disasters, while other entities within the UN system, such as the UNHCR, led the UN response to complex emergencies. This was confirmed in a 1978 Memorandum of Understanding between the UNDRO and the UNHCR. Despite the existence of the UNDRO, UN preparedness to react following a disaster was considered lacking. In its early years, the Office benefitted from few staff, and there was a certain reluctance on the part of other UN entities to work with it. Questions also arose regarding the precise mandate of the UNDRO, in particular the nature of the disasters that fell within its scope. On the UNDRO, see Macalister-Smith, n 19, ch 8; Beigbeder, n 26, 47–55; Green, International Disaster Relief: Toward a Responsive System (1977), 32; Meredith, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

‘Forebodings of Disasters’ (1972) 26 International Organizations 699; Morse, ‘Practice, Norms and Reform of International Humanitarian Rescue Operations’ (1977-IV) 157 RCADI 121, 166–72; Samuels, n 48, 682–3. 50

  In GA Res 46/182 (1981), the General Assembly provided that the Emergency Relief Coordinator ‘should be supported by a secretariat based on a strengthened Office of the United Nations Disaster Relief Coordinator and the consolidation of existing offices that deal with complex emergencies’. This led to the establishment of the Department of Humanitarian Affairs. The Department had within it a Disaster Response Branch, which served as the focus of UN efforts in the area. 51

  GA Res 46/182 (1991) provides that the IASC should involve ‘the participation of all operational organizations and with a standing invitation to the International Committee of the Red Cross, the League of Red Cross and Red Crescent Societies, and the International Organization for Migration. Relevant non-governmental organizations can be invited to participate on an ad hoc basis.’ An operational agency, for the purpose of IASC membership, is defined as an agency that provides humanitarian assistance (‘protection or material aid’), or which deploys ‘staff to assist affected populations with immediate needs’. See at https://interagencystandingcommittee.org/iasc/membership-and-structure. As of January 2017, members of the IASC were the: FAO, IOM, OCHA, United Nations Development Programme (UNDP), UNFPA, United Nations Human Settlements Programme (UN-Habitat), UNHCR, UNICEF, WFP, and WHO. A standing invitation is issued to ICRC, IFRC, the Office of the United Nations High Commissioner for Human Rights (OHCHR), the Special Rapporteur on the Human Rights of Internally Displaced Persons, and the World Bank. The International Council of Voluntary Agencies (ICVA), InterAction, and the Steering Committee for Humanitarian Response are also invited to attend on a permanent basis. See IASC, Concise Terms of Reference and Action Procedures (February 2014), para 3.2. In the operation of the IASC, no distinction is made between members and standing invitees. See at https://interagencystandingcommittee.org/iasc/membership-and-structure. 52

  IASC, Concise Terms of Reference and Action Procedures (February 2014), para 3.3. The Terms of Reference go on to note: The primary objectives of the IASC in complex and major emergencies are as follows: •  to develop and agree on system-wide humanitarian policies; •  to allocate responsibilities amongst agencies in humanitarian programmes; •  to develop and agree on a common ethical framework for all humanitarian activities; •  to advocate common humanitarian principles to parties outside the IASC; •  to advocate for the full respect for the rights of the individual in accordance with the letter and spirit of the relevant bodies of law (ie international human rights law, international humanitarian law and refugee law); •  to identify and address areas where gaps in mandates or lack of operational capacity exist; and •  to resolve disputes or disagreements about and amongst humanitarian agencies on system-wide humanitarian issues. 53

  In 2001, in the course of an internal restructuring of the OCHA, the Disaster Response Branch was merged with the branch tasked with the response to other emergencies. According to one high-level UN official working in the area, this inadvertently led to the

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‘dissipation of the knowledge and culture of disaster response built up over the decades by the ERC [Emergency Relief Coordinator] office’: Katoch, n 32, 54. 54

  See Report of the Secretary-General on the Work of the Organization, UN Doc A/52/1 (1997), para 106, which describes the operational role of the prior entity, the Department of Humanitarian Affairs, as ‘problematic’ for its lack of equipment and its distraction from the ‘core functions of policy development, advocacy and coordinating humanitarian emergency response’. In the re-organization of the work of the UN, the operational functions of the Department of Humanitarian Affairs were moved under the auspices of other entities, and the OCHA’s mandate was broadened to include policy development and advocacy. 55

  The OCHA serves as the Secretariat of the IASC, on which, see para 21.14. It also serves as the secretariat for the UN Disaster Assessment and Coordination (UNDAC) system and the International Search and Rescue Advisory Group (INSARAG). On INSARAG, see GA Res 57/150 (2002); International Search and Rescue Advisory Group, Guidelines and Methodology (April 2012); Bookmiller, n 29; http://www.insarag.org/. The OCHA also plays an important role in so far as the distribution of funds is concerned. See para 21.22. 56

  The OCHA formulates humanitarian policies in order to assist it, and its humanitarian partners, in its work. It includes development of policies based on international law, human rights, and humanitarian principles, in such areas as the protection of civilians, displacement, and the transition from relief to development. Its policy work includes the promotion of normative standards. For example, in his Report on the protection of civilians in armed conflict, UN Doc S/2013/689 (2013), para 80, the Secretary-General observed that ‘Further analysis is required on the issue of arbitrary withholding of consent to relief operations [in situations of armed conflict] and the consequences thereof’, and ‘instructed the Office for the Coordination of Humanitarian Affairs to engage with relevant legal experts, Member States, ICRC, humanitarian actors, civil society and others to examine the relevant rules and consider options for providing guidance’. This led to the Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict (eds Akande and Gillard, 2016), commissioned and published by the UN OCHA. 57

  One of the OCHA’s functions, falling within its advocacy mandate, is to draw attention to the humanitarian impact of disasters and complex emergencies. This is done through public briefings, such as through interviews and contacts with the media; public and private communications, such as with the Security Council; and behind-the-scenes diplomacy, such as with governments. 58

  See generally OCHA Organizational Chart in OCHA, Annual Report 2015, 73.

59

  The two headquarters were in New York and Geneva; the six regional offices were in Panama (for Latin America and the Caribbean); Dakar (for West and Central Africa); Cairo (for the Middle East and Northern Africa); Almaty (for the Caucasus and Central Asia); Kenya (for Eastern and Southern Africa); and Bangkok (for Asia and the Pacific). See at https://docs.unocha.org/sites/dms/Documents/OCHA_presence_spread_2016.pdf. 60

  In 2016, OCHA’s budget was $309 million. For the 2016–17 biennium, $14.8 million was allocated to the OCHA through the UN regular budget. This amounted to less than 5 per cent of the OCHA’s budget. Figures for the most recent period are available on the OCHA website. Voluntary funds are provided primarily by UN member states and the European Commission, with only a very small amount being received from private donations. An informal OCHA donor support group is made up of many of the principal voluntary contributors. The group also acts as a ‘sounding board’, and provides ‘financial, political and technical support’. Much of the voluntary funding is earmarked, although the OCHA encourages the provision of unearmarked funds.

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61

  The ICRC is not part of the cluster approach.

62

  The Humanitarian Response Review (2005), which was commissioned by the Emergency Relief Coordinator, identified failings in the humanitarian response, such as gaps in the provision of humanitarian assistance, unpredictable capacity, ad hoc responses, and erratic coordination. It recommended inter alia the use of thematic ‘clusters’ of organizations that work in the same sector, with a lead agency being identified for each. 63

  Sectors in which leadership and accountability amongst humanitarian actors were clear were not included, eg refugee issues in which the UNHCR is the lead actor. IASC, Guidance Note on Using the Cluster Approach to Strengthen Humanitarian Response (November 2006), 2. On occasion, the cluster lead will differ. For example, following a disaster or complex emergency in which there is no significant displacement, the UNHCR will not necessarily undertake the role of cluster lead agency of the protection cluster. Instead, the three agencies with a protection mandate (OHCHR, UNHCR, and UNICEF) consult and agree, together with the Resident Coordinator or Humanitarian Coordinator, which of the three agencies will take on the role. IASC, Reference Module for Cluster Coordination at Country Level (July 2015), 10. The leads of certain clusters also differ depending on whether the situation is one of armed conflict or disaster. 64

  This includes building clusters that undertake standard-setting and policy-setting activities, such as development of standards and identification of best practices; that build response capacities, such as training and the maintenance of standby rosters; and provide operational support, such as emergency preparedness and securing access to technical expertise. IASC, Guidance Note on Using the Cluster Approach to Strengthen Humanitarian Response (November 2006), 2 and 4. 65

  ibid, 2 and Annex I, ‘Generic Terms of Reference for Sector/Cluster at the Country Level’. There are six ‘core functions’ of a country-level cluster. These are: to support service delivery; to inform the Humanitarian Coordinator/Humanitarian Country Team’s strategic decision-making by, inter alia, undertaking needs assessments and identifying gaps in the humanitarian response; to plan and implement strategies; to monitor and evaluate performance-monitoring needs and recommending corrective measures; to build national capacities; and to support advocacy efforts. IASC, Reference Module for Cluster Coordination at Country Level (July 2015), 13. 66

  This includes ensuring that key humanitarian actors are included, coordinating with national and local actors, maintaining humanitarian coordination mechanisms, and ensuring attention is paid to cross-cutting issues such as age, gender, and human rights (IASC Guidance Note, n 64, 7). See also ibid, Annex I. 67

  ibid, 7. As the Guidance Note explains, at 10: ‘Where there are critical gaps in humanitarian response, it is the responsibility of sector leads to call on all relevant humanitarian partners to address these. If this fails, then depending on the urgency, the sector lead as “provider of last resort” may need to commit itself to filling the gap. If, however, funds are not forthcoming for these activities, the Cluster Lead cannot be expected to implement these activities, but should continue to work with the Humanitarian Coordinator and donors to mobilize the necessary resources.’ 68

  IASC, Reference Module, n 65, 10.

69

  This follows consultation with the UN country team or humanitarian country team as well as national authorities (ibid). On the Humanitarian Coordinator, see section 3.3.1. 70

  Although established in 1993, the possibility had been suggested as early as 1971. See GA Res 2816 (XXVI) (1971).

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Between 1993 and December 2015, 255 UNDAC missions took place to over 100 states, in response to disasters such as floods and landslides/mudslides; cyclones, typhoons, and hurricanes; and earthquakes and tsunamis. See OCHA, UNDAC Missions 1993–2015. 71

  The teams are usually deployed within 12–48 hours of the occurrence of a disaster, and remain for two to four weeks. They consist of experienced individuals, who are made available by governments, international organizations, or NGOs. The teams are managed by the OCHA; and UNDAC is a part of the OCHA, not a separate organization. OCHA, United Nations Disaster Assessment and Coordination UNDAC Field Handbook (2013) (hereinafter ‘UNDAC Handbook’), B.1.1–B.1.3. OCHA personnel from headquarters and other offices may also be deployed at short notice to the country affected by the disaster until appropriate, longer-term levels of staffing can be established. Thirty-five persons are on standby at any one time. See at http://www.unocha.org/what-we-do/coordination/response/ overview. 72

  UNDAC Handbook, n 71, B.1. See further ibid, B.1.3.

73

  ibid, B.1.2. On the Resident Coordinator and the Humanitarian Coordinator, see section 3.3.1, ‘Humanitarian Coordinator’. 74

  GA Res 60/124 (2005). The Fund was previously known as the Central Emergency Revolving Fund, which was established pursuant to GA Res 46/182 (1991). 75

  The loan element of the CERF was established pursuant to GA Res 46/182 (1991) and carried over pursuant to GA Res 60/124 (2005), until its consolidation with the grant element in January 2012. The purpose of the loan element was to ‘provide immediate funding to ensure a rapid response to humanitarian, life-saving needs due to sudden-onset emergencies, time-critical crises or rapid deterioration of existing crises’ (SecretaryGeneral’s Bulletin, Establishment and operation of the Central Emergency Response Fund, ST/SGB/2010/5, 23 April 2010, para 4.2). The loan was to be paid back to the Fund by the entity in question upon receipt of the donor pledges through the disaster-specific appeal. The Fund was required to be reimbursed within a year (Central Emergency Fund: Report of the Secretary-General, UN Doc A/66/357, 13 September 2011, para 9). However, it was usually reimbursed within six months (Strengthening of the coordination of Emergency Humanitarian Assistance of the United Nations: Report of the Secretary-General, UN Doc A/ 60/87-E/2005/78, 23 June 2005, para 73). Arrangements for the loan were set out in an exchange of letters between the Emergency Relief Coordinator and the receiving entity (ST/ SGB/2010/5, above, para 3.3). 76

  GA Res 66/119 (2011) followed recommendations of the Central Emergency Response Fund Advisory Group and the findings of a five-year evaluation of the CERF (Central Emergency Response Fund: Report of the Secretary-General, UN Doc A/67/361, 11 September 2012, para 12). 77

  As at the end of 2011, $46.4 million had been transferred from the loan element to the grant element. However, $30 million was kept in reserve in the loan account, ‘to provide financial support to agencies as they wait for donor pledges to be disbursed’: Central Emergency Response Fund: Report of the Secretary-General, UN Doc A/67/361, 11 September 2012, para 12. See also Central Emergency Response Fund: Report of the Secretary-General, UN Doc A/68/87, 31 May 2013, para 3. The CERF can continue to make loans from the reserve funds. In 2012, the Fund made two loans, one of which has been repaid in full. See UN Doc A/67/361, above, para 13. No loans were applied for in 2013 (UN Doc A/68/87, above, para 12).

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78

  The grant element of the Fund was added pursuant to GA Res 60/124 (2005). The purpose of the grant element is to ‘(a) promote early action and response to reduce loss of life; (b) enhance response to time-critical requirements based on demonstrable needs; (c) strengthen core elements of humanitarian response in underfunded crises’ (ST/SGB/2010/5, n 75, para 4.1). See also ibid, at para 2.1. In 2014, over $460 million was disbursed through the Fund, and more than $3.7 billion has been allocated from the Fund since its inception in 2006 until the end of 2014 (Central Emergency Fund: Report of the Secretary-General, UN Doc A/70/96, 17 June 2015, para 2). In 2015, grants totaling $469.7 million were approved (Central Emergency Fund: Report of the Secretary-General, UN Doc A/71/336, 15 August 2016, para 2). 79

  ST/SGB/2010/5, n 75, para 4.3. These tend to be humanitarian emergencies that attract less media attention than other more high-profile situations, or which otherwise attract less funding. For example, 82 per cent of funds requested by the appeal for the 2004 Indian Ocean tsunami were received, as compared with a mere 5.2 per cent of funds requested by the appeal for persons affected by the 2005 drought in Djibouti (UN Doc A/60/227, 12 August 2005, para 24). In 2015, $168.9 million was provided through this route (Central Emergency Response Fund: Report of the Secretary-General, UN Doc A/71/336, 15 August 2016, para 11). 80

  ST/SGB/2010/5, n 75, para 4.2. In the Central Emergency Fund: Report of the SecretaryGeneral, UN Doc A/66/357, 13 September 2011, the Secretary-General noted that, in 2010– 11, 35 per cent of the rapid-response component of the grant element of the Fund was used to respond to situations of natural disaster. An earlier report, written by a high-level UN official in the area, noted that in practice, the Fund was not used to respond to natural disasters. See Katoch, n 32, 54. This was likely due to the Fund’s initially being established for use in complex emergencies (GA Res 46/182 (1991)). However, it was extended in 2001 to include natural disasters (GA Res 56/107 (2001)). In general, no more than $30 million is issued for rapid-response activities in respect of any one situation (ST/SGB/2010/5, n 75, para 4.2). 81

  See ST/SGB/2006/10.

82

  This was created in 1974 pursuant to GA Res 2816 (XXVI) (1971). The Fund relates specifically to disaster relief, in particular to finance coordination and relief efforts and to provide initial grants. 83

  For example, UNICEF maintains an Emergency Programme Fund, and the WFP has an Immediate Response Account. 84

  GA Res 38/202 (1983) limited the sum to $50,000 per country per natural disaster, up to a total of $600,000. This was raised to $100,000 per country per natural disaster in GA Res 59/141 (2005). Although an improvement, it remains a fraction of the actual sum needed by states in the immediate aftermath of a natural disaster. 85

  For example, GA Res 2435 (XXIII) (1968) noted with appreciation the cooperation between the UN and the League of Red Cross Societies, and urged continued cooperation. GA Res 36/225 (1981) recognized the important contributions of the International Committee of the Red Cross and the League of Red Cross and Red Crescent Societies. GA Res 46/182 (1991) referred to the need of the Emergency Relief Coordinator to work closely with UN entities, the ICRC, the League of Red Cross and Red Crescent Societies, and others. The OCHA and the IFRC engage in a variety of joint activities, including joint workshops and conferences and the development of a Model Act on the Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance. On the latter,

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see Model Act on the Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (IFRC and OCHA, November 2011). 86

  Memorandum of Understanding between the International Federation of Red Cross and Red Crescent Societies (IFRC) and the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) regarding cooperation in the area of International Disaster Response Laws, Rules and Principles (IRDL), 30 November 2011. The Memorandum recognized that the IFRC was ‘a leader in the analysis and promotion of effective disaster law’ and that OCHA was ‘a prime focal point for the coordination in international relief operations’ (Art 1). The IFRC and OCHA agreed to develop the carrying out of joint activities in the area of dissemination, implementation, and strengthening of IDRL (Art 2), and to cooperate and consult in areas of mutual influence (Art 3). 87

  The Model Agreement concerning Measures to Expedite the Import, Export and Transit of Relief Consignments and Possessions of Relief Personnel in the Event of Disasters and Emergencies was intended to facilitate conclusion of an agreement between the UN and states on the expediting of transport of relief consignments following a disaster. A few agreements have been concluded along the lines of the Model Agreement, eg between the UN and the Government of Nepal, 31 May 2007, and between the UN and the Government of Bhutan, 8 August 2011. 88

  The proper coordination of disaster relief at the country level is also key to a coordinated UN response. 89

  ‘The leadership and coordination role of the [Humanitarian Coordinator] entails building consensus among relevant organisations involved in humanitarian action and actively facilitating cooperation among them, recognising that the ownership of coordination rests with all relevant organisations. Such role must be carried out in full respect of the mandates and authority of relevant organisations’ (IASC, Terms of Reference for the Humanitarian Coordinator (May 2009), 1). The role includes ensuring that response activities are inclusive and coordinated, ensuring that there is an appropriate division of labour among organizations, and seeking to obtain ‘free, timely, safe and unimpeded access by humanitarian organisations to populations in need’ (ibid, 2). It includes supporting national mechanisms; leading with governments, donors, and other actors; facilitating humanitarian access; and promoting adherence to humanitarian principles and standards. 90

  The position of Resident Coordinator was established pursuant to GA Res 32/197 (1977), Annex: Conclusions and recommendations of the Ad hoc Committee on the Restructuring of the Economic and Social Sectors of the United Nations System, para 34, in which the General Assembly decided that ‘on behalf of the United Nations system, overall responsibility for, and coordination of, operational activities for development carried out at the country level should be entrusted to a single official’. The Resident Coordinator leads and coordinates UN development activities in the country. The Resident Coordinator also chairs the UN country team. In addition, he/she is the UNDP Resident Representative and the Designated Official for United Nations Security. Furthermore, in countries in which there is a Special Representative of the Secretary-General (SRSG), the Resident Coordinator is the Deputy Special Representative. If humanitarian assistance is required, the Resident Coordinator will coordinate the response efforts. Depending on the scale, complexity, and urgency of the situation, the Emergency Relief Coordinator may designate the Resident Coordinator the Humanitarian Coordinator following consultation with the IASC. On the Resident Coordinator system, see Administrative Committee on Coordination (ACC), Statement on the Role and Functioning of the Resident Coordinator System (1995); ACC Guidelines on the Functioning of the Resident Coordinator System (September 1999); UN Development Group, The Management and Accountability System of the UN Development and Resident Coordinator System, including the functional firewall for the RC system (August 2008); Report of the Secretary-General on the Functioning of the Resident

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Coordinator system, including costs and benefits, E/2010/53, 30 April 2010; Lindores, Enhancing the functioning of the Resident Coordinator system: A report prepared for the United Nations Department for Economic and Social Affairs in preparation for the 2012 Quadrennial Comprehensive Policy Review of UN Operational Activities, May 2012. 91

  This takes place, eg, if the Resident Coordinator does not have the necessary expertise. In practice, however, the functions of Resident Coordinator and Humanitarian Coordinator are almost invariably combined in the same individual. As at August 2016, all Humanitarian Coordinators were also Resident Coordinators. See IASC, List of Humanitarian Coordinators (August 2016). 92

  See Report of the Secretary-General, International Cooperation on humanitarian assistance in the field of natural disasters, from relief to development, UN Doc A/60/227, 12 August 2005, para 48. 93

  IASC, Guidance for Humanitarian Country Teams (November 2009), para 1.1.

94

  It includes UN entities, the IOM, components of the Red Cross and Red Crescent Movement, and NGOs. The principal criterion for membership is ‘operational relevance’. (ibid, paras 3.1 and 3.4). 95

  ibid, paras 3.7 and 4.1.

96

  This includes, eg, agreeing on the establishment of clusters, on which see para 21.19; advising the Humanitarian Coordinator on the allocation of funds from a country-based pooled fund, on which see section 3.3.3. 97

  IASC Guidance, n 93, Section II.

98

  OCHA, Operational Handbook for Country-Based Pooled Funds (February 2015), 1.1.

99

  OCHA, Policy Instruction: Country-Based Pooled Funds, Ref 2015/01 (5 February 2015), 4.2.2. 100

  Allocations take into account funding from other sources (ibid).

101

  ibid, 4.2.4.

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Part 3 The United Nations: What it Does, 22 Promotion and Protection of Human Rights Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): Civil and political rights — Collective rights

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(p. 722) 22  Promotion and Protection of Human Rights 1.  Introduction 22.01 2.  The Principal Organs 22.03 2.1  The Economic and Social Council 22.03 2.2  The General Assembly 22.10 2.3  The Security Council 22.19 2.4  The International Court of Justice 22.38 3.  The Human Rights Council 22.39 3.1  Establishment 22.39 3.2  Position within the UN system 22.40 3.3  Structure and operation 22.41 3.4  Mandate 22.46 3.5  Human Rights Council bodies 22.76 3.6  Other activities 22.86 4.  Office of the United Nations High Commissioner for Human Rights 22.87 4.1  Establishment 22.87 4.2  Position within the UN system 22.89 4.3  Structure of the Office 22.92 4.4  Mandate and work 22.96 4.5  Funding 22.123 5.  Human Rights Treaties and Treaty Bodies 22.125 5.1  Standard setting 22.125 5.2  Human rights treaty bodies 22.161 6.  Human Rights Conferences 22.226 7.  Geneva–New York Relations 22.231 Alfredsson et al (eds), International Human Rights Monitoring Mechanisms: Essays in Honour of Jakob Th Möller (2009); Alston (ed), The United Nations and Human Rights (1992); Alston and Goodman, International Human Rights (2013), chs 8 and 9; Bantekas and Oette, International Human Rights Law and Practice (2013), chs 4 and 5; Clapham, ‘United Nations Charter-Based Protection of Human Rights’ in International Protection of Human Rights: A Textbook (eds Krause and Scheinin, 2009); Connors and Schmidt, ‘United Nations’ in International Human Rights Law (eds Moeckli, Shah, and Sivakumaran, 2014); de Schutter, International Human Rights Law (2010), chs 9 and 10; Hannum, ‘The United Nations and Human Rights’ in International Protection of Human Rights: A Textbook (eds Krause and Scheinin, 2009); Joseph and Kyriakakis, ‘The United Nations and Human Rights’ in Research Handbook on International Human Rights Law (eds Joseph and McBeth, 2010); Kälin and Künzli, The Law of International Human Rights Protection (2009), chs 8 and 9; Marchesi, Diritti umani e Nazioni Unite. Diritti, obblighi e garanzie (2007); Mertus, The

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United Nations and Human Rights (2005); Oberleitner, Global Human Rights Institutions (2007); Rehman, International Human Rights Law: A Practical Approach (2010), chs 4–7; Schwelb and Alston, ‘The Principal Institutions and Other Bodies Founded under the (p. 723) Charter’ in The International Dimensions of Human Rights (ed Vasak, 1982); Smith, ‘The United Nations Human Rights System’ in International Human Rights Law: Six Decades after the UDHR and Beyond (eds Baderin and Ssenyonjo, 2010); Tomuschat, Human Rights: Between Idealism and Realism (2014), chs 6–8; United Nations, United Nations Action in the Field of Human Rights (1994).

(p. 724) 1.  Introduction 22.01  The UN Charter contains several provisions on human rights.1 Indeed, one of the purposes of the UN is ‘[t]o achieve cooperation…in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’.2 In order to fulfil this purpose, the Charter allocates particular responsibilities in so far as human rights are concerned to specific organs. The General Assembly has the mandate to ‘initiate studies and make recommendations for the purpose of:…assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’.3 The Economic and Social Council (ECOSOC) ‘may make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all’, and ‘shall set up commissions…for the promotion of human rights’.4 One of the ‘basic objectives of the trusteeship system’ is ‘to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’.5 Although the protection and promotion of human rights is not listed in the Charter as a function of the Security Council, in practice, in recent decades, the Security Council has played an important role in this regard.6 22.02  The promotion and protection of human rights is spread throughout the UN system, from the General Assembly and Security Council in New York, to the Office of the High Commissioner for Human Rights and the Human Rights Council in Geneva, to field presences across the world. This institutional dispersal has its advantages and its disadvantages. On the one hand, it demonstrates that promoting respect for human rights is a task of the organization as a whole and not just an activity of the UN human rights bodies. On the other hand, dispersal has led to a lack of coordination between UN bodies, agencies, and entities, as well as to a duplication (p. 725) of efforts in the promotion and protection of human rights.7 The work of the UN in the promotion and protection of respect for human rights has developed considerably over the decades. However, it tends to operate in a piecemeal manner rather than as a holistic system.

(p. 726) 2.  The Principal Organs 2.1  The Economic and Social Council Giacca and Riedel, ‘Article 68’ in The Charter of the United Nations: A Commentary (vol II, eds Simma et al, 2012); O’Donovan, ‘The Economic and Social Council’ in The United Nations and Human Rights (ed Alston, 1992); Reanda, ‘The Commission on the Status of Women’ in The United Nations and Human Rights (ed Alston, 1992); Röben, ‘Article 62’ in The Charter of the United Nations: A Commentary (vol II, eds Simma et al, 2012); Schwelb and Alston, ‘The Principal Institutions and Other Bodies Founded under the Charter’ in The International Dimensions of Human Rights (ed Vasak, 1982); UN RP (1945–54) vol III and supplements thereto; United Nations Year Books.

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22.03  Pursuant to Article 62(2) of the UN Charter, ECOSOC ‘may make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all’.8 It may also ‘draft conventions for submission to the General Assembly’ and call international conferences, both ‘on matters falling within its competence’.9 Furthermore, ECOSOC may ‘coordinate the activities of (p. 727) the specialized agencies’ in the field of human rights and fundamental freedoms.10 In addition, ECOSOC makes arrangements ‘for consultation with non-governmental organizations which are concerned with matters within its competence’.11 The power of ECOSOC to act in these areas is subject to the limitations found in general international law and in the UN Charter.12 ECOSOC has not seen itself as the competent body to consider communications alleging human rights abuses.13 22.04  Over the years, the trend has been towards ECOSOC doing less and less in so far as human rights is concerned. By contrast, the General Assembly has taken on greater (p. 728) responsibility for the promotion of human rights.14 This is demonstrated most clearly in the abolition of the Commission on Human Rights, a subsidiary organ of ECOSOC, and its replacement with the Human Rights Council (HRC), a subsidiary organ of the General Assembly.15 Accordingly, there have been many calls for revitalizing ECOSOC.16

2.1.1  Subsidiary organs 22.05  Subsidiary organs of ECOSOC include functional commissions, regional commissions, and standing committees.17 Pursuant to Article 68 of the UN Charter, ECOSOC established commissions ‘for the promotion of human rights’.18 Of these, the most important were the Commission on Human Rights and the Sub-Commission on the Promotion and Protection of Human Rights, both of which have since been replaced.19 Other subsidiary organs of importance, in so far as human rights are concerned, are the Commission on the Status of Women, the Permanent Forum on Indigenous Issues, and the Committee on Economic, Social and Cultural Rights (CESCR).20

2.1.2  Commission on the Status of Women 22.06  The Commission on the Status of Women is the principal inter-governmental body of the UN on the rights of women.21 The Commission meets in New York on an (p. 729) annual basis and may, in addition, meet in special session.22 It is made up of 45 members elected by ECOSOC on the basis of equitable geographical distribution.23 Sessions of the Commission are attended by its members, as well as by representatives of non-member states acting as observers, representatives of UN bodies, inter-governmental and nongovernmental organizations. Many UN specialized agencies report to the Commission on activities of interest to it. The Commission has also established links with regional intergovernmental organizations working in the area.24 The entity UN Women acts as the secretariat to the Commission.25 22.07  The functions of the Commission were initially limited to preparing ‘recommendations and reports to ECOSOC on promoting women’s rights in political, economic, social, and educations fields’, to making ‘recommendations to the Council on urgent problems requiring immediate attention in the field of women’s rights with the object of implementing the principle that men and women shall have equal rights’, and ‘to develop[ing] proposals to give effect to such recommendations’.26 To this was (p. 730) added the functions of promoting ‘the objectives of equality, development and peace, monitoring the implementation of measures for the advancement of women, and reviewing and appraising progress made at the national, sub-regional, regional, sectoral and global levels’.27 Following the Fourth World Conference on Women, the Commission was also requested to follow up the work of the Conference and review the areas of concern identified in the Beijing Platform for Action.28 The Commission is also empowered to consider communications relating to the status of women. The Commission does not, however, decide on the merits of the communication; rather, it identifies trends and From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

patterns that allow it to develop policies and strategies for the promotion of gender equality.29 The work of the Commission has gone through (p. 731) phases, from focusing on standard-setting in equal rights, to promoting the participation of women in social and economic development, to ‘putting women on the global agenda’ and mainstreaming the rights of women, to consolidating women’s rights and the advancement of women.30

2.1.3  Permanent Forum on Indigenous Issues 22.08  The Permanent Forum on Indigenous Issues was established pursuant to ECOSOC Resolution 2000/22.31 The Permanent Forum consists of 16 members, who serve in their individual capacity as ‘independent experts on indigenous issues’.32 Eight members are nominated by states and elected by ECOSOC; the other eight are appointed by the President of ECOSOC.33 Members serve for a term of three years, and are eligible for reelection or re-appointment for one further term of three (p. 732) years.34 A number of entities are eligible to participate as observers.35 The Secretariat of the Permanent Forum is based in the Department of Economic and Social Affairs at the UN Secretariat in New York.36 22.09  The Permanent Forum serves as an ‘advisory body to the Council with a mandate to discuss indigenous issues within the mandate of the Council relating to economic and social development, culture, the environment, education, health and human rights’.37 It also works on a number of cross-cutting issues that affect indigenous peoples: gender and indigenous women; children and youth; indigenous peoples and the 2030 Agenda; and data and indicators.38 The Permanent Forum meets in an annual session of 10 working days at UN Headquarters in New York.39 Every other session of the Permanent Forum has a specific thematic focus, with the intervening sessions focusing on reviewing implementation.40

2.2  The General Assembly Cassese, ‘The General Assembly: Historical Perspective 1945–1989’ in The United Nations and Human Rights (ed Alston, 1992), 25–54; Finley, The Structure of the United Nations General (p. 733) Assembly: Its Committees, Commissions and Other Organisms 1946–1973 (3 vols, 1977); Quinn, ‘The General Assembly into the 1990s’ in The United Nations and Human Rights (ed Alston, 1992), 55–106; Schwelb and Alston, ‘The Principal Institutions and Other Bodies Founded under the Charter’ in The International Dimensions of Human Rights (ed Vasak, 1982), 231–301; Tomuschat, Human Rights: Between Idealism and Realism (2008), 136–8, 145–6; United Nations, United Nations Action in the Field of Human Rights (1994), 6–14. 22.10  Human rights matters are considered directly by the General Assembly, on the basis of a report of one of its Main Committees, or on the basis of a report by a subsidiary body of the Assembly. 22.11  A large part of the work of the General Assembly in the field of human rights has been in the area of standard-setting.41 On many occasions, particularly in the context of the adoption of treaties,42 the General Assembly has acted on the recommendation of ECOSOC or the then Commission on Human Rights.43 The role of the (p. 734) Assembly varies from doing no more than giving the instrument its approval to drafting substantive provisions.44 22.12  The General Assembly adopts resolutions on the human rights situation in individual states. Resolutions frequently express the concern of the General Assembly on particular aspects of the human rights situation and call on the state concerned, UN member states, the Secretary-General, or other actors to undertake certain actions.45 The Assembly also adopts resolutions on thematic human rights issues.46 It has proclaimed various human rights days, years, and decades.47 It also receives reports from the HRC, the Office of the

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High Commissioner for Human Rights (OHCHR), treaty bodies, and certain special procedures.48 22.13  There has been a notable rise over the years in the number of resolutions adopted by the General Assembly that involve human rights matters. However, the increase in the number of resolutions adopted should not be equated with improvement of the human rights situation on the ground.49 Indeed, on occasion, the same language has been used in different resolutions without particular regard to context. (p. 735) 22.14  Despite the increase in the number of resolutions on human rights matters that are adopted by the General Assembly, in many instances, the Assembly does no more than simply replicate the work of other UN bodies.50 The work of the General Assembly on human rights matters is invariably politicized. Regional groupings and caucuses bring their interests to bear. Different groupings and caucuses disagree as to whether a particular issue is properly considered a human rights matter; and there remain certain ideological debates on human rights matters.51 To a certain extent, whenever human rights matters are left to states, there is going to be an element of politicization. The question becomes how to factor this politicization into the proper functioning of the General Assembly.

2.2.1  Main Committees 22.15  Of the Main Committees of the General Assembly, it is the Third Committee that usually considers human rights issues.52 The Third Committee considers the voluminous reports and draft resolutions that are submitted under the human rights agenda item.53 Reports are introduced by ‘executive heads and senior members of the Secretariat’, and this is followed by interactive dialogue and ‘question time’ with heads of department, representatives of the Secretary-General, special rapporteurs, and other mechanisms. General discussion then follows, with statements being limited to five minutes on the part of individual delegations and 10 minutes if the statement is made on behalf of a group of delegations.54 (p. 736) 22.16  The other Main Committees of the General Assembly also consider human rights issues when the occasion arises.55

2.2.2  Subsidiary organs 22.17  Acting pursuant to Article 22 of the Charter, the General Assembly has established subsidiary organs, many of which work in the field of human rights. Such subsidiary organs in the field of human rights are many and varied. Some of them are, or have been, among the principal entities working on the subject. They include the HRC, the Executive Board of the United Nations Children’s Fund,56 the Executive Board of the United Nations Development Programme, the United Nations Population Fund,57 the United Nations Peacebuilding Commission,58 the Executive Committee of the Programme of the United Nations High Commissioner for Refugees,59 and the Advisory Commission on the United Nations Relief and Works Agency for Palestine Refugees in the Near East.60 Other subsidiary organs focus on particular situations and have been important politically. They include the Committee on the Exercise of the Inalienable Rights of the Palestinian People,61 the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories,62 and the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence (p. 737) to Colonial Countries and Peoples (Special Committee of 24).63 Numerous other subsidiary organs are no longer in existence, having concluded their work.64 22.18  In light of the particular importance of the HRC, it is the subject of a separate section in this chapter.65

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2.3  The Security Council Arcani, Tutela dei diritti umani e misure del Consiglio di Sicurezza (2006); Bailey, ‘The Security Council’ in The United Nations and Human Rights (ed Alston, 1992); Bailey, The UN Security Council and Human Rights (1994); Ciampi, Sanzioni del Consiglio di sicurezza e diritti umani (2007); Fassbender (ed), Securing Human Rights (2011); Genser and Stagno Ugarte (eds), The United Nations Security Council in the Age of Human Rights (2014); Lowe et al (eds), The United Nations Security Council and War (2008); Ramcharan, The Security Council and the Protection of Human Rights (2002); Shaygan, La compatibilité des sanctions économiques du Conseil de sécurité avec les droits de l’homme et le droit international humanitaire (2008); Tomuschat, Human Rights: Between Idealism and Realism (2014), 202–5; Weschler, ‘Human Rights’ in The UN Security Council: From the Cold War to the 21st Century (ed Malone, 2004).

2.3.1  Human rights violations and international peace and security 22.19  The UN Charter does not refer explicitly to a role for the Security Council in the promotion and protection of human rights. Rather, Article 39 of the Charter provides that ‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.’66 Thus, the Security Council does have a role to play in so far as the promotion and protection of human rights is concerned, namely, when violations of human rights are such as to constitute a threat to international peace and security. (p. 738) 22.20  It is beyond doubt, today, that human rights violations have the potential to endanger international peace and security.67 The Security Council has adopted a number of resolutions under Chapter VII of the Charter in response to violations of human rights.68 There has been frequent reference to human rights or human rights-related issues in resolutions adopted under Chapter VI of the Charter.69 Of particular concern to the Security Council has been the right of peoples to self-determination,70 and coups d’état.71 The Council has also adopted resolutions on thematic issues relating to human rights and peace and security.72 The Security Council further meets with actors working in the area of human rights, such as the UN High Commissioner for Human Rights and special procedures mandate-holders of the HRC.73 (p. 739) 22.21  In making its determinations, the Security Council will have before it information from a variety of sources. Interested parties may themselves have provided information; the Secretary-General may have provided information; Security Council missions may have reported to the Security Council; and bodies reporting to the Security Council may have reported on the issue in question. Arria-formula meetings are occasionally used to allow NGOs and other individuals to meet with members of the Security Council.74 However, despite the abundance of material before the Security Council, the information is not always reliable.75

2.3.2  International humanitarian law and human rights law in situations of armed conflict 22.22  The Council has had occasion to reaffirm the applicability of international humanitarian law and human rights law to particular armed conflicts.76 Many of the references to international humanitarian law in the work of the Security Council call upon parties to armed conflicts to respect their obligations under that body of law,77 (p. 740) and under human rights law.78 Other resolutions have determined and condemned violations of international humanitarian law,79 and violations and abuses of human rights on the part of warring parties.80 Still others have noted the liability of individuals for violations of

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international humanitarian law and encouraged their prosecution.81 The Security Council has also adopted resolutions on thematic issues within international humanitarian law.82 22.23  The Security Council has been particularly focused on issues relating to armed conflict.

2.3.3  Children and armed conflict 22.24  The issue of children and armed conflict was considered by the Security Council on a number of occasions in the 1990s.83 In 1999, the Security Council adopted a thematic resolution on the subject.84 The Resolution demonstrated that the impact of (p. 741) armed conflict on children, particularly certain violations of the rights of the child, had the potential to affect international peace and security.85 Since the adoption of the thematic resolution, the issue of children and armed conflict has occupied an important place in the work of the Security Council.86 22.25  The Security Council Working Group on Children and Armed Conflict was established pursuant to Security Council Resolution 1612 (2005).87 The Working Group reviews reports of the monitoring and reporting mechanism on children and armed conflict,88 and adopts conclusions on the reports.89 The Working Group reviews progress made in the development and implementation of action plans of parties to armed conflicts90 listed in the annexes to the Secretary-General’s report on children and armed conflict.91 It makes recommendations to the Security Council on ‘possible (p. 742) measures to promote the protection of children affected by armed conflict’, and addresses requests to other UN bodies as appropriate.92 The Security Council has indicated that it may impose targeted measures on parties, including ‘a ban on the export or supply of small arms and light weapons and of other military equipment and on military assistance’, if they ‘refuse to enter into dialogue, fail to develop and action plan or fail to meet the commitments included in their action plan’.93 However, in practice, targeted measures are rarely imposed,94 and some parties have remained listed for many years.95 The Working Group works closely with the Office of the Special Representative of the Secretary-General for Children and Armed Conflict, and with the United Nations International Children’s Emergency Fund (UNICEF).96

2.3.4  Women, peace, and security 22.26  Security Council Resolution 1325 (2000) is the primary reference point in the women, peace, and security agenda.97 In the Resolution, the Security Council recognized that ‘civilians, particularly women and children, account for the vast majority of those adversely affected by armed conflict’, and reaffirmed ‘the important role of women in the prevention and resolution’ of armed conflicts. The Resolution addresses (p. 743) a number of issues relating to these two broad themes, including the protection of ‘women and girls from gender-based violence, particularly rape and other forms of sexual abuse, and all other forms of violence’; respect for ‘international law applicable to the rights and protection of women and girls, especially as civilians’; and respect for ‘the civilian and humanitarian character of refugee camps and settlements’, taking into account ‘the particular needs of women and girls’. 22.27  The Resolution also contains a number of provisions on peacemaking, peacebuilding, and the prevention of armed conflicts. It calls for the ‘increased representation of women at all decision-making levels in…institutions and mechanisms for the prevention, management, and resolution of conflict’, including peace processes;98 and calls for a gender perspective to be included in the negotiation and implementation of peace agreements.99 It ‘urges the Secretary-General to appoint more women as special representatives and envoys’, ‘to expand the role and contribution of women’ in UN fieldbased operations, and to ‘ensure that, where appropriate, field operations include a gender component’.100 The Security Council expressed its ‘willingness to (p. 744) incorporate a gender perspective into peacekeeping operations’ and its ‘willingness to ensure that From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Security Council missions take into account gender considerations’.101 The Resolution also urged that the different needs of male and female ex-combatants be taken into account in the planning for disarmament, demobilization, and reintegration; and contained provisions on training. 22.28  The Security Council remains actively seized of the issue of women, peace, and security. The Secretary-General prepares an annual report for the Security Council on the implementation of Security Council Resolution 1325 (2000).102 The Security Council has also adopted a number of resolutions since Resolution 1325 relating to women, peace, and security.103 However, progress on the ground and at the UN has been uneven.104 Much of the subsequent focus of the women, peace, and security agenda has been on the prevention of, and the protection of women from, sexual violence.105

(p. 745) 2.3.5  Protection of civilians 22.29  The protection of civilians in particular armed conflicts has long been a matter of concern for the Security Council.106 In 1999, the Security Council adopted a resolution on the subject—Resolution 1265—which would prove to be the start of its thematic consideration of the issue.107 In that Resolution, the Security Council noted that ‘civilians account for the vast majority of casualties in armed conflicts and are increasingly targeted by combatants and armed elements’. It also stressed that, in order to protect civilians in the longer term, the causes of conflict need to be addressed. The Security Council expressed its willingness ‘to consider how peacekeeping mandates might better address the negative impact of armed conflict on civilians’,108 and indicated that ‘whenever measures are adopted under Article 41 of the Charter of the United Nations’, it would ‘give consideration to their impact on the civilian population, bearing in mind the needs of children, in order to consider appropriate humanitarian exemptions’. It also included provisions on humanitarian assistance, humanitarian personnel, small arms and light weapons, and the impact of armed conflict on women and children. 22.30  Since the adoption of Security Council Resolution 1265 (1999), the protection of civilians has come to occupy an important place in the work of the Security Council.109 The Security Council holds periodic debates on the subject, and it has adopted a series of resolutions and presidential statements on the protection of (p. 746) civilians.110 It remains actively seized of the issue. The Security Council also benefits from an informal expert group on the protection of civilians.111 The Secretary-General prepares periodic reports for the Security Council on the subject.112 The Security Council has also adopted resolutions on the protection of journalists as part of the protection of civilians agenda.113 The issue of the protection of civilians is incorporated into the Security Council’s work on country situations.

2.3.6  Responsibility to protect 22.31  The responsibility to protect doctrine has three inter-linking strands. First, it is the responsibility of each individual state to protect its population from genocide, crimes against humanity, ethnic cleansing, and war crimes. Second, the international community should assist states in exercising this responsibility. Third, the international community has the responsibility to help to protect populations from these crimes through diplomatic, humanitarian, and other peaceful means. If peaceful means prove inadequate and state authorities fail to protect their populations from these crimes then the international community is prepared to take action, ‘through the Security Council, in accordance with the Charter, including Chapter VII, (p. 747) on a case-by-case basis and in cooperation with relevant regional organizations as appropriate’.114 The Security Council has affirmed the

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‘responsibility to protect’ doctrine.115 The third strand has proven somewhat controversial amongst states.116 (p. 748) 22.32  A Special Advisor of the Secretary-General on the Responsibility to Protect is mandated to develop the concept of responsibility to protect and build consensus around the doctrine.117

2.3.7  Commissions of inquiry and missions of the Security Council 22.33  The Security Council has established commissions of experts or commissions of inquiry, inter alia, to investigate violations of human rights law and international humanitarian law in a particular situation.118 The reports of these commissions have, on occasion, led to the establishment of international criminal tribunals and to referral of situations to the ICC.119 Missions of the Security Council, which have increased significantly in recent years, have also considered the subject of human rights.120 (p. 749) 22.34  In recent years, the importance of human rights has come to be recognized, and linkages between human rights and other issues are appreciated by all concerned. Accordingly, subsidiary bodies of the Security Council created in the recent past have considered human rights in their work.

2.3.8  Counter-Terrorism Committee 22.35  The Security Council decided in Resolution 1373 (2001) that all states shall, inter alia, ‘prevent and suppress the financing of terrorist acts’; criminalize the financing of terrorism; freeze funds of persons and entities involved in terrorism; and prohibit persons and entities from financing terrorism. The Security Council also established the CounterTerrorism Committee to monitor implementation of the Resolution. Although the Resolution contains only a single reference to human rights,121 the Security Council subsequently noted that measures taken by states to counter terrorism should be in accordance with their obligations under international law, ‘in particular international human rights, refugee, and humanitarian law’.122 For its part, the Counter-Terrorism Committee has recognized the impact of human rights law on its work.123 One official within the Counter-Terrorism (p. 750) Committee Executive Directorate has a human rights mandate, and the Directorate also has a Working Group on human rights aspects of counter-terrorism in the context of Resolution 1373.124 The Executive Directorate has identified a number of human rights issues of relevance to Resolution 1373 and the work of the Committee.125 And the Executive Director of the Counter-Terrorism Executive Directorate has stated before the Security Council that ‘[i]t has now become routine to include human rights aspects of States’ implementation of resolution 1373 (2001) in the work of the Committee’.126 The Committee has also established links with the OHCHR and met with various human rights officials.127 (p. 751) However, the Committee has been criticized for being insensitive to human rights.128 22.36  In addition to promoting and protecting human rights, the work of the Security Council has the potential to violate human rights. This is particularly true of the Sanctions Committees that have been established by Security Council resolutions.

2.3.9  Sanctions committees 22.37  A number of sanctions committees have been established pursuant to Security Council resolutions.129 The type of sanction imposed by the relevant committee varies depending on the resolution establishing the committee, but includes travel bans, arms embargoes, and the freezing of assets.130 Different sanctions committees have different listing criteria. Certain sanctions committees impose sanctions on individuals and entities for violations of international human rights law and/or (p. 752) international humanitarian law.131 Sanctions committees operate a procedure for listing individuals.132 A delisting procedure allows a listed individual or entity to request removal from the list.133 These processes notwithstanding, the listing and (p. 753) delisting procedures—particularly in the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

context of the 1267 Committee—have attracted considerable criticism for failing to take into account human rights, in particular due process, concerns.134

(p. 754) 2.4  The International Court of Justice Al-Khasawneh, ‘The International Court of Justice and Human Rights’ in Routledge Handbook of International Human Rights Law (eds Rodley and Sheeran, 2013); Higgins, ‘The International Court of Justice and Human Rights’ in International Law: Theory and Practice: Essays in Honour of Eric Suy (ed Wellens, 1998), 691; Schwebel, ‘Human Rights in the World Court’ (1991) 24 Van JTL 945; Schwebel, ‘The Treatment of Human Rights and of Aliens in the International Court of Justice’ in Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (eds Lowe and Fitzmaurice, 1996), 327; Simma, ‘Mainstreaming Human Rights: The Contribution of the International Court of Justice’ (2012) 3 Journal of International Dispute Settlement 7; Sivakumaran, ‘The International Court of Justice and Human Rights’ in Research Handbook on International Human Rights Law (eds Joseph and McBeth, 2010). 22.38  The International Court of Justice (ICJ) has considered human rights issues in a number of contentious cases and Advisory Opinions.135 The extent to which it can be said to promote and protect human rights depends on a number of factors, including the subject matter of cases that are brought before it or Advisory Opinions that are requested of it, its jurisdiction in a particular case, and the facts at issue in the dispute.

(p. 755) 3.  The Human Rights Council http://www.ohchr.org/EN/HRBodies/HRC/Pages/HRCIndex.aspx; Annual reports of the Human Rights Council to the General Assembly; GA Res 60/251 (2006); GA Res 65/281 (2011); Human Rights Council Res 5/1 (2007); Human Rights Council Res 16/21 (2011); Abebe, ‘The Role and Future of the Human Rights Council’ in Routledge Handbook of International Human Rights Law (eds Sheeran and Rodley, 2013); Bova, Il consiglio diritti umani nel Sistema onusiano di promozione e protezione dei diritti umani. Profili giuridici ed istituzionali (2012); Boyle (ed), New Institutions for Human Rights Protection (2009); Cantú Rivera (ed), The Special Procedures of the Human Rights Council (2015); Charlesworth and Larking (eds), Human Rights and the Universal Periodic Review (2014); Connors and Schmidt, ‘United Nations’ in International Human Rights Law (eds Moeckli, Shah, and Sivakumaran, 2014); Domínguez, Los Procedimientos Públicos Especiales De La Comisión De Derechos Humanos De Naciones Unidas (2005); Freedman, The United Nations Human Rights Council: A Critique and Early Assessment (2013); Gutter, Thematic Procedures of the United Nations Commission on Human Rights and International Law (2006); Nifosi, The UN Special Procedures in the Field of Human Rights (2005); Piccone, Catalysts for Change: How the UN’s Independent Experts Promote Human Rights (2012); Piccone, ‘The Future of the United Nations Special Procedures’ in Routledge Handbook of International Human Rights Law (eds Sheeran and Rodley, 2013); Ramcharan, The Protection Roles of UN Human Rights Special Procedures (2009); Rudolf, ‘The Thematic Rapporteurs and Working Groups of the United Nations Commission on Human Rights’ (2000); Swiss Confederation, The Human Rights Council: A Practical Guide (2015).

3.1  Establishment 22.39  The Human Rights Council (HRC or ‘the Council’) was established by the General Assembly in 2006 pursuant to General Assembly Resolution 60/251.136 The Council is the successor to the Commission on Human Rights.137 The Secretary-General (p. 756) proposed the idea of a human rights council as part of his proposals on UN reform.138

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(p. 757) 3.2  Position within the UN system 22.40  The Council is a subsidiary organ of the General Assembly.139 This stands in contrast to the Commission on Human Rights, which was a subsidiary organ of ECOSOC.140 There remains the possibility, though unlikely, that the Council will be upgraded to a principal organ.141

(p. 758) 3.3  Structure and operation 3.3.1  Membership 22.41  The Council comprises 47 members elected from the UN membership.142 Members are elected for terms of three years and are not eligible for re-election immediately after serving two consecutive terms.143 Members are government representatives.144 Membership of the Council is based on equitable geographical distribution.145

(p. 759) 3.3.2  Elections 22.42  Members of the Council are elected by the General Assembly by simple majority through secret ballot.146 When electing members, states ‘shall take into account the contribution of candidates to the promotion and protection of human rights’,147 and candidates’ ‘voluntary pledges and commitments’.148 (p. 760) 22.43  Members of the Council are required to ‘uphold the highest standards in the promotion and protection of human rights’, ‘fully cooperate with the Council’, and ‘be reviewed under the universal periodic review mechanism during their term of membership’.149 Accordingly, rights of membership in the Council may be suspended by two-thirds of the General Assembly present and voting if a state commits ‘gross and systematic’ violations of human rights.150 In one instance, the rights of membership of one state were suspended.151

3.3.3  Presidency and Bureau 22.44  The President and four Vice-Presidents are elected by the Council at the start of each Council year.152 They serve for a period of one year and are not eligible for immediate re-election to the same position.153 The President and Vice-Presidents together constitute the Bureau, which deals with ‘procedural and organizational matters’.154 An Office of the President of the Council was established following the review of the work and functioning of the Council in 2011.155

(p. 761) 3.3.4  Sessions 22.45  The Council meets regularly throughout the year and is required to schedule ‘no fewer than three sessions per year, including a main session, for a total duration of no less than ten weeks’.156 This has reportedly led to deeper consideration of human rights issues than was the case with the Commission.157 There is also the possibility of meeting in special sessions.158

3.4  Mandate 22.46  General Assembly Resolution 60/251 (2006) sets out the mandate of the Council.159 It provides that the Council is responsible ‘for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equitable manner’; for ‘address[ing] situations of violations of human rights, including gross and systematic violations, and mak[ing] recommendations thereon’; and for ‘promot[ing] the effective coordination and the mainstreaming of human rights within the United Nations system’.160 The Council is to be guided in its work ‘by the

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principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation’.161 22.47  General Assembly Resolution 60/251 (2006) also set out 10 specific functions of the Council.162 The Council is to: (a)  Promote human rights education and learning as well as advisory services, technical assistance and capacity-building, to be provided in consultation with and with the consent of Member States concerned; 163 (b)  Serve as a forum for dialogue on thematic issues on all human rights; (c)  Make recommendations to the General Assembly for the further development of international law in the field of human rights; 164 (p. 762) (d)  Promote the full implementation of human rights obligations undertaken by States and follow-up to the goals and commitments related to the promotion and protection of human rights emanating from United Nations conferences and summits; (e)  Undertake a universal periodic review…;

165

(f)  Contribute, through dialogue and cooperation, towards the prevention of human rights violations and respond promptly to human rights emergencies; 166

(g)  Assume the role and responsibilities of the Commission on Human Rights relating to the work of the Office of the United Nations High Commissioner for Human Rights, as decided by the General Assembly in its resolution 48/141 of 20 December 1993; 167 (h)  Work in close cooperation in the field of human rights with Governments, regional organizations, national human rights institutions and civil society; 168 (i)  Make recommendations with regard to the promotion and protection of human rights; (j)  Submit an annual report to the General Assembly.

22.48  The first year of work of the Council—its institution-building phase—saw much discussion on the modalities of the Council’s workings. After considerable discussion, a Resolution on Institutional Building was adopted, which contains the key features and workings of the Council.169 Following the review of the work and functioning of the Council in 2011, certain amendments were made to the workings of the Council; however, its principal functions remain the same.170 As part of its mandate, the functions that follow are of particular importance.

3.4.1  Universal Periodic Review 22.49  The Universal Periodic Review (UPR) is a three-stage process. First, there is an assessment of the human rights situation in the state undergoing review, following which states make recommendations to that state. Second, between the periodic reviews, the state is to implement the recommendations it has accepted, together with any voluntary pledges that it has made. Third, at its next review, an account is to be given of the implementation of the recommendations and commitments, and an assess(p. 763) ment takes place of the human rights situation in the state since the last review.171 The modalities of the process

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are set out in Human Rights Council Resolution 5/1 (2007),172 as amended by Human Rights Council Resolution 16/21 (2011) and Decision 17/119 (2011). 22.50  Every UN member state undergoes a review of its human rights record every fourand-a-half years.173 Accordingly, 42 states are reviewed each year.174 22.51  The UPR process is intended to improve the human rights situation in the state undergoing review, allow the state to fulfil its human rights obligations, enhance the state’s capacity, assist with the sharing of best practices, support cooperation in human rights, and encourage cooperation and engagement with other UN human rights entities.175 (p. 764) 22.52  The ‘basis of the review’ is the UN Charter, the UDHR, human rights instruments to which the state in question is party, and voluntary pledges and commitments made by the state.176 In addition, ‘given the complementary and mutually interrelated nature of international human rights law and international humanitarian law, the review shall take into account applicable international humanitarian law’.177 22.53  Three documents are drawn up to assist the review process: a report of 20 pages from the state under review;178 a compilation of 10 pages drawn up by the OHCHR, based (p. 765) on the reports of treaty bodies, special procedures, and other official UN documents; and a summary of 10 pages drawn up the OHCHR on the basis of ‘credible and reliable information provided by other relevant stakeholders’.179 The Council has set out guidelines on the content of state reports and referred, inter alia, to a description of the consultation process followed for the preparation of the report; background on the country, in particular its ‘normative and institutional framework, for the promotion and protection of human rights’; ‘promotion and protection of human rights on the ground’; its ‘achievements, best practices, challenges and constraints’; key national priorities; requests for technical assistance; and follow-up to the previous review.180 22.54  A Working Group, comprising all members of the Council, undertakes the review. Observer states may also participate in the review process.181 Other stakeholders may attend the review but are not eligible to participate. Three states (the troika), selected by the drawing of lots from among members of the Working Group and from different regional groups, act as rapporteurs to ‘facilitate’ the review.182 The rapporteurs, inter alia, ‘collate issues or questions to be transmitted to the State under review to facilitate its preparation and focus the interactive dialogue’.183 The review (p. 766) is intended to be ‘objective, transparent, non-selective, constructive, non-confrontational and non-politicized’.184 22.55  The interactive dialogue is three-and-a-half hours in duration.185 The state under review is allocated up to 70 minutes for the initial presentation of its report and its responses to written questions, its replies to questions from the floor, and concluding remarks at the end of the review.186 States have tended to send delegations composed of mid- to high-level national officials, rather than relying upon their diplomatic representatives in Geneva.187 The remaining time is utilized by the reviewing states. Members of the Council are given speaking time of three minutes each; observer states have two minutes each; other stakeholders, such as NGOs, are not given the floor.188 (p. 767) 22.56  Following the interactive dialogue, the troika, with the involvement of the state under review and the assistance of the Secretariat,189 prepares a draft outcome report, which is a ‘factual report of its proceedings, consisting of a summary of the interactive dialogue, which will reflect recommendations and/or conclusions made by delegations during the interactive dialogue’.190 The recommendations are one of the most important aspects of the process. However, the suitability, clarity, and quality of recommendations have proved to be mixed.191 The state undergoing the review is to communicate its position, in writing, on each of the recommendations.192 The (p. 768) recommendations that enjoy the support of the state are identified as such; other

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recommendations are ‘noted’, rather than rejected, along with the comments of the state; both are included in an addendum to the report.193 22.57  A draft outcome report is considered by the Working Group.194 Once approved by the Working Group, it is considered and adopted at a plenary session of the Council. The Council devotes an hour to consideration of each outcome report.195 The hour is divided into time for comments from the state under review; for the views of other states; and for views of non-state stakeholders, including NGOs.196 A summary of the views and comments made is included in the report of the session of the Council.197 Following the discussion, a final outcome report is adopted. 22.58  The state undergoing the review ‘is expected to follow up on the recommendations that enjoy its support as well as on voluntary commitments and pledges’.198 The implementation of the recommendations is the most important part of the UPR pro(p. 769) cess, as it is during this stage that the human rights situation on the ground will be improved, which is the very goal of the process.199 States are also ‘encouraged to provide the Council, on a voluntary basis, with a midterm update on follow-up to accepted recommendations’.200 States have been encouraged further ‘to establish and strengthen national human rights follow-up systems and processes and to seek, as needed, technical assistance and capacity-building, and to share experiences and good practices to that end’.201 The ‘implementation of the accepted recommendations and the development of human rights situations in the State under review’ should form an important part of states’ reports for later reviews.202 However, in certain cases, insufficient attention is paid to this aspect of the process.203 There is also insufficient follow-up to the implementation of recommendations on the part of the states that made the recommendation, with many states failing to follow up on the implementation of the recommendations that they made during the previous review. As with other aspects of the UN human rights system, follow-up is one of the weakest parts of the process.204 22.59  The second UPR cycle was completed in 2016.205 On the basis of the early reviews, commentators have been cautiously optimistic as regards the UPR process.206 However, (p. 770) work remains to be done on the quality of recommendations, as well as monitoring the implementation of, and follow-up to, recommendations made at previous reviews.

3.4.2  Special procedures 22.60  The special procedures207 of the Council are independent human rights experts, who ‘examine, monitor, advise and publicly inform on respect for human rights’.208 They include special rapporteurs, independent experts, and Working Groups.209 Many of these mandates were taken over from the Commission of Human Rights.210 There are two types of special procedures: thematic mandates and country mandates.211 Country mandates have a longer history,212 yet they are also the more con(p. 771) troversial of the two.213 The special procedures have been lauded, with the then Secretary-General Kofi Annan describing the special procedures system as ‘the crown jewel of the [human rights] system’, the report on the ‘Rationalization of the Work of the Commission’ describing the special procedures system as ‘an essential cornerstone of United Nations efforts to promote and protect internationally recognized human rights’, and the ICJ describing the special procedures as ‘of importance for the whole of the United Nations system’.214 The special procedures have developed incrementally and on an ad hoc basis.215 (p. 772) 22.61  Country and thematic mandates are established by the Council; mandate holders are similarly appointed by the Council.216 Mandate holders are required to possess (p. 773) expertise, experience in the field of the mandate, independence, impartiality, integrity and objectivity.217 They may hold the mandate for no longer than six years.218 Mandate holders are independent experts219 and act in their individual capacity.220 They are not staff members of the UN, but they do benefit from certain immunities.221 They are also subject to a code of conduct.222 Given their independence, they decide (p. 774) on their From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

work within the contours of their mandate. They are supported in their work by the OHCHR.223 Mandate holders are unpaid.224 22.62  The functions of a mandate holder are numerous.225 The precise terms of the mandate are contained in the resolution establishing it. As their name suggests, holders (p. 775) of country mandates focus on the situation of human rights within a particular state. Holders of thematic mandates, by contrast, focus on a particular theme rather than a particular state, though certain states may be more affected by the theme than others. 22.63  Special procedures mandate holders conduct country visits to assess the human rights situation in the state in question. The consent of the state in question is required before a country visit can take place.226 As independent experts, the mandate holder decides on which states to visit.227 The terms of the country visit are governed by the Terms of Reference for Fact-Finding Missions of Special Procedures,228 and the (p. 776) Code of Conduct.229 Mandate holders meet, inter alia, with national and local authorities, the national human rights institution, NGOs, victims of human rights violations, and UN entities in the state in question; they also provide a briefing to (p. 777) the government and give a press conference at the end of the mission.230 Of considerable concern, persons who cooperate with the special procedures, including those who meet with the mandate holder during a country visit, are sometimes subjected to acts of intimidation and reprisal.231 In other instances, the human rights situation has improved as a result of a visit of one of the special procedure mandate holders.232 Following the country visit, a report is provided to the Council containing the findings, conclusions, and recommendations of the mandate holder.233 22.64  Many mandates provide for communication with governments on allegations of human rights violations that are within their scope;234 as well as concerns relating to laws and practices that are not human rights-compliant. The communication usually takes the form of letters of allegation or urgent appeals. The letters include the facts at issue, the relevant legal standards, the concerns of the mandate holder, and a request for followup.235 Individuals and entities can submit information to the special procedures, through the OHCHR.236 Unlike the human rights treaty bodies, (p. 778) local remedies do not need to be exhausted.237 Also unlike the treaty bodies, it is at the discretion of the individual mandate holder as to whether he/she will act on the submission.238 Many letters and urgent appeals go unanswered; however, others do engender a response and result in steps being taken to assess the validity of the complaint and to rectify the situation.239 Exceptionally, the Working Group on Arbitrary Detention is mandated to receive communications and provide ‘views’, which the Group has characterized as ‘opinions’.240 22.65  Holders of thematic mandates, in particular, explicate and clarify human rights norms and standards as part of their work. For example, they have developed principles and (p. 779) guidelines and identified best practices.241 They have applied the law to recent developments.242 Their reports also elucidate the meaning of particular norms. 22.66  The special procedures liaise with states, NGOs, and other entities.243 They organize seminars and consultations, which feed into their studies and reports.244 They also raise awareness of particular issues within the scope of their mandate, for example by issuing press releases and giving interviews to the press. Much turns on the individual mandate holder. Mandate holders have also started to follow up more systematically with states on their reports.245 22.67  The special procedure mandate holders report to the Council; many of them report also to the General Assembly. These reports contain a variety of information—general reports on the work undertaken during the reporting period, specific reports on country visits, and reports at the commencement and conclusion of their mandate outlining the existing state of affairs on the mandate in question. Reports include a series of conclusions and recommendations aimed at various actors.246 When a (p. 780) report is presented to the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Council, there is discussion of the report by states, other stakeholders, and the mandate holder.247

3.4.3  Complaints procedure 22.68  A complaints procedure exists under the auspices of the Council in relation to ‘consistent patterns of gross and reliably attested’ human rights violations ‘occurring in any part of the world and under any circumstances’.248 The complaints procedure is not an individual one; rather, it is designed to address a pattern of gross violations. Certain admissibility requirements must also be satisfied.249 Accordingly, it is largely similar to the 1503 procedure of the former Commission.250 (p. 781) 22.69  Communications are screened initially by the Chairperson of the Working Group on Communications together with the OHCHR, based on the admissibility criteria for communications. Communications that are ‘manifestly ill-founded’, as well as those that are anonymous, are screened out; all others are transmitted to the state concerned for its views on the allegation.251 22.70  A five-member Working Group on Communications, made up of members of the Human Rights Council Advisory Committee,252 provides its recommendation on the admissibility of the communication and its assessment of the merits of the allegations of violations, ‘including whether the communication alone or in combination with other communications appear to reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms’.253 The Working Group on Communications provides the Working Group on Situations with a file containing all admissible communications and its recommendations thereon.254 22.71  The Working Group on Situations, ‘on the basis of the information and recommendations provided by the Working Group on Communications’, presents the Council with a report on consistent patterns of gross human rights violations and makes recommendations to the Council on the course of action to be taken.255 (p. 782) 22.72  The Council may discontinue consideration of the situation ‘when further consideration of action is not warranted’; keep the situation under review and request the state to provide further information; keep the situation under review and appoint an independent expert to monitor the situation and report back to the Council; recommend that the OHCHR provide technical cooperation, capacity-building assistance, or advisory services to the state in question; or discontinue review under the confidential procedure in order to take up public consideration of the situation.256 22.73  The entire procedure is confidential; however, the entity submitting the initial communication is kept informed of the stage at which the communication is, as well as the final outcome.257 In principle, the entire process should not exceed a period of 24 months.258

3.4.4  Responding to emergencies 22.74  The Council can meet in special session, at the request of a single member of the Council with the support of one-third of the Council’s membership.259 Numerous special sessions have been held by the Council since its inception.260 (p. 783) 22.75  The Council has also established commissions of inquiry, commissions on human rights, independent investigations, and fact-finding missions to investigate violations of human rights in the state in question, or to monitor and report on the human rights situation in the state in question.261 The precise mandate of the mechanism is contained in the authorizing resolution.262 Support for the mechanism is provided by the OHCHR.263 In

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certain cases, the Council has also requested the OHCHR to undertake an investigation itself.264

(p. 784) 3.5  Human Rights Council bodies 3.5.1  Advisory Committee 22.76  An Advisory Committee consisting of 18 experts acts as a ‘think-tank’ for the Council.265 The Advisory Committee essentially replaces the former Sub-Commission on the Promotion and Protection of Human Rights, which, in contrast to the Commission, consisted of experts.266 Any member state of the UN, not only members of the Council, may nominate candidates for election to the Advisory Committee.267 Candidates should have recognized competence and experience in human rights, be of high moral standing, and be independent and impartial.268 Individuals in ‘decision-making positions in Government or in any other organization or entity which might give rise to a conflict of interest with the responsibilities inherent in the mandate’ are excluded.269 Members are elected by the Council by secret ballot.270 The Advisory Committee has equitable geographical representation.271 ‘Due consideration’ is to be given to gender balance and representation of the different civilizations and legal (p. 785) systems.272 Members of the Advisory Committee serve for a term of three years and may be re-elected once.273 Elected members serve in a personal capacity.274 22.77  The Advisory Committee meets in up to two sessions for a maximum of 10 days annually.275 It meets at the UN Office in Geneva.276 It may request permission from the Council to meet for additional ad hoc sessions.277 Members of the Advisory Committee are encouraged to meet with each other intersessionally and with states, NGOs, and national human rights institutions and civil society entities.278 National human rights institutions, NGOs, intergovernmental organizations, and member states and observers, including states that are not members of the Council, are entitled to participate in the work of the Advisory Committee.279 22.78  The role of the Advisory Committee is to ‘provide expertise to the Council…focusing mainly on studies and research-based advice’.280 The Advisory Committee ‘should be implementation-oriented and the scope of its advice should be limited to (p. 786) thematic issues pertaining to the mandate of the Council; namely promotion and protection of all human rights’.281 The Advisory Committee is also involved in the complaints procedure.282 22.79  The Advisory Committee is a weaker body than its predecessor, the Sub-Committee, with significantly less independence. The Advisory Committee is directed in its work by the Council.283 It does not have the competence to adopt resolutions or decisions.284 The Council instructs the Committee as to the research it wishes to receive; however, the Committee may suggest appropriate topics to the Council for its approval.285 This circumscribed mandate of the Committee reflects the uneasy relationship that existed between the former Sub-Commission and its parent body, the former Commission.286

(p. 787) 3.5.2  Expert Mechanism on the Rights of Indigenous Peoples 22.80  An Expert Mechanism on the Rights of Indigenous Peoples was created by the Council.287 It replaces the Working Group on Indigenous Populations established by ECOSOC, which was a subsidiary body of the Sub-Commission.288 The Mechanism is comprised of five experts acting in an individual capacity.289 It undertakes studies and provides research-based advice to the Council, as directed by the Council, on the rights of indigenous peoples.290 The Mechanism meets in an annual session of five days, which meetings the Special Rapporteur on the rights of Indigenous Peoples and a member of the Permanent Forum on Indigenous Issues are invited to attend.291

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3.5.3  Forum on Minority Issues 22.81  A Working Group on Minorities was established by ECOSOC in order to aid discussion and cooperation between minorities, as well as between minorities and governments.292 Minority groups as well as NGOs could participate fully at meetings and submit documentation.293 The Working Group was abolished along with the SubCommission; however, a ‘Forum on Minority Issues’, with largely the same mandate and modalities, was established by the Council.294 It meets for two days per (p. 788) annum for discussions on thematic issues pertaining to the Forum.295 Its mandate includes the identification and analysis of ‘best practices, challenges, opportunities and initiatives for the further implementation of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities’.296 The Special Rapporteur, previously Independent Expert, on minority issues guides the work of the Forum and reports back to the Council.297

3.5.4  Social Forum 22.82  The Social Forum was created by the Commission upon a request by the SubCommission on the Promotion and Protection of Human Rights.298 It served as a forum in which to discuss the impact of globalization on economic, social, and cultural rights, and to consider issues such as poverty, trade, finance, and development.299 The Forum served as a meeting point for states, UN entities working in human rights, other relevant UN entities, other intergovernmental organizations, such as the World Bank, the International Monetary Fund and World Trade Organization, financial institutions, and NGOs. The HRC decided that the Social Forum should continue to operate, but with a broader focus, to include human rights generally.300 The Social Forum meets for three days per annum.301

3.5.5  Forum on Business and Human Rights 22.83  The Forum on Business and Human Rights was created by the Council in 2011. Participation in the forum is open to states, UN entities working in human rights, national human rights institutions and other relevant bodies, transnational corporations and business enterprises, business associations, labour unions, academics and experts in the field of business and human rights, representatives of indigenous peoples, and NGOs.302 The mandate of the Forum is to ‘discuss trends and challenges in the (p. 789) implementation of the Guiding Principles and promote dialogue and cooperation on issues linked to business and human rights, including challenges faced in particular sectors, operational environments or in relation to specific rights or groups, as well as identifying good practices’.303 The Forum meets annually for two days.304

3.5.6  Forum on Human Rights, Democracy, and the Rule of Law 22.84  The Forum on Human Rights, Democracy, and the Rule of Law was established in 2015 pursuant to Council Resolution 28/14. The forum is open to participation by states, UN entities working in human rights, national human rights institutions and other relevant bodies, intergovernmental and regional organizations, and NGOs, academics, and experts.305 It was established ‘to provide a platform for promoting dialogue and cooperation on issues pertaining to the relationship between these areas’.306 The Forum is also to ‘identify and analyse best practices, challenges and opportunities for States in their efforts to secure respect for human rights, democracy and the rule of law’.307 The Forum is held every two years for two days, allocated to discussion of a particular theme.308

3.5.7  Working Groups and ad hoc committees 22.85  The Council has created, or taken over from the Commission on Human Rights, a number of Working Groups,309 including: Intergovernmental Working Group on the Right to Development;310 Intergovernmental Working Group on the effective implementation of the Durban Declaration and Programme of Action;311 Open-Ended Intergovernmental Working Group on a regulatory framework of activities of private military and security companies;312 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Open-Ended Intergovernmental (p. 790) Working Group on a United Nations Declaration on the rights of peasants and other people working in rural areas;313 Open-Ended Intergovernmental Working Group on transnational corporations and other business enterprises with respect to human rights;314 and the Ad hoc Committee on the Elaboration of Complementary Standards.315

3.6  Other activities 22.86  During sessions of the Council, numerous side-events take place.316 Annual debates, panel discussions, and meetings are also convened.317 Non-governmental organizations and national human rights institutions sometimes organize meetings parallel to the official meetings of the Council.

(p. 791) 4.  Office of the United Nations High Commissioner for Human Rights http://www.ohchr.org; OHCHR Annual reports; OHCHR management plans; Boerefijn, ‘Human Rights, United Nations High Commissioner for (UNHCHR)’ in the Max Planck Encyclopedia of Public International Law (MPEPIL) (online); Clapham, ‘Creating the High Commissioner for Human Rights: The Outside Story’ (1994) 5 EJIL 556; Connors and Schmidt, ‘United Nations’ in International Human Rights Law (eds Moeckli, Shah, and Sivakumaran, 2014); Gaer and Broecker (eds), The United Nations High Commissioner for Human Rights: Conscience for the World (2014); Gómez del Prado, Operaciones de mantenimiento de la paz: Presencias en el terreno de la Oficina del Alto Comisionado de las Naciones Unidas para los Derechos Humanos (1998); Hannum, ‘Human Rights in Conflict Resolution: The Role of the Office of the High Commissioner for Human Rights in Peacemaking and Peacebuilding’ (2006) 28 HRQ 1; O’Flaherty (ed), The Human Rights Field Operation (2007); various, in ‘Symposium on the United Nations High Commissioner for Human Rights: the First Ten Years of the Office, and the Next’ (2004) 35 Columbia Human Rights Law Review 465–526.

4.1  Establishment 22.87  Discussions concerning the creation of the post of High Commissioner for Human Rights took place almost immediately after the establishment of the United Nations and continued for decades.318 The post was eventually established by the General (p. 792) Assembly pursuant to General Assembly Resolution 48/141 (1993),319 following the World Conference on Human Rights.320 22.88  In the same Resolution, the General Assembly also established the Office of the High Commissioner for Human Rights (OHCHR),321 which, for a time, existed alongside the Centre for Human Rights.322 The Office was merged with the Centre in 1997 in order to integrate better the UN’s work in human rights and to avoid duplication of activities.323

4.2  Position within the UN system 22.89  The OHCHR is part of the UN Secretariat,324 and is a crucial component of the UN’s work in the field of human rights. The High Commissioner for Human Rights is the visible face of the UN’s work on the subject. (p. 793) 22.90  The High Commissioner is ‘the United Nations official with principal responsibility for United Nations human rights activities’.325 He/she works under the ‘direction and authority of the Secretary-General’326 and is ‘accountable’ to the SecretaryGeneral.327 The mandate of the High Commissioner was set out by the General Assembly in General Assembly Resolution 48/141 (1993) and includes certain listed responsibilities,328 ‘within the framework of the overall competence, authority and decisions of the General Assembly, the Economic and Social Council and the Commission on Human Rights’. The

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High Commissioner has considerable independence in his/her work, and has the freedom to set his/her priorities. 22.91  The High Commissioner reports annually to the HRC and, through ECOSOC, to the General Assembly.329

4.3  Structure of the Office 4.3.1  The High Commissioner 22.92  The High Commissioner is required to be an individual of high moral standing, with expertise in human rights and knowledge of different cultures.330 The High Commissioner is appointed by the Secretary-General and approved by the General Assembly.331 Pursuant to General Assembly Resolution 48/141, the High Commissioner serves for a ‘fixed term of four years with a possibility of one renewal for another fixed term of four years’;332 however, in practice, the terms of office have varied.333 The position of High Commissioner is at the level of Under-Secretary-General.334

4.3.2  Deputy High Commissioner 22.93  The Deputy High Commissioner of Human Rights, who is the Officer-in-Charge when the High Commissioner is absent, assists the High Commissioner in his/her (p. 794) work.335 The position of Deputy High Commissioner is at the level of Assistant SecretaryGeneral.

4.3.3  Organizational structure and staffing 22.94  The OHCHR is based in Geneva, with a liaison office located at UN Headquarters in New York.336 As at 31 December 2015, OHCHR also had 12 regional offices or centres, 14 country or stand-alone offices, as well as other field presences.337 22.95  As at 31 December 2015, the Geneva Office of OHCHR had four divisions:338 the ‘Research and Right to Development Division’,339 the ‘Human Rights Treaties Division’,340 the ‘Field Operations and Technical Cooperation Division’,341 and the ‘Human Rights Council Mechanisms Division’.342 Divisions are broken down into branches and sections.343 As at the same date, the OHCHR employed 1,165 members of staff.344 Of those, 53 per cent were based in Geneva, 3 per cent in New York, and 44 per cent in the field.345

(p. 795) 4.4  Mandate and work 22.96  Pursuant to General Assembly Resolution 48/141 (1993), the High Commissioner has the mandate:346 (a)  To promote and protect the effective enjoyment by all of all civil, cultural, economic, political and social rights; 347 (b)  To carry out the tasks assigned to him/her by the competent bodies of the United Nations system in the field of human rights and to make recommendations to them with a view to improving the promotion and protection of all human rights; (c)  To promote and protect the realization of the right to development and to enhance support from relevant bodies of the United Nations system for this purpose; 348 (d)  To provide, through the Centre for Human Rights of the Secretariat and other appropriate institutions, advisory services and technical and financial assistance, at the request of the State concerned and, where appropriate, the

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regional human rights organizations, with a view to supporting actions and programmes in the field of human rights; 349 (e)  To coordinate relevant United Nations education and public information programmes in the field of human rights; 350 (f)  To play an active role in removing the current obstacles and in meeting the challenges to the full realization of all human rights and in preventing the continuation of human rights violations throughout the world, as reflected in the Vienna Declaration and Programme of Action; (g)  To engage in a dialogue with all Governments in the implementation of his/her mandate with a view to securing respect for all human rights; (h)  To enhance international cooperation for the promotion and protection of all human rights; (i)  To coordinate the human rights promotion and protection activities throughout the United Nations system; 351 (j)  To rationalize, adapt, strengthen and streamline the United Nations machinery in the field of human rights with a view to improving its efficiency and effectiveness; (k)  To carry out overall supervision of the Centre for Human Rights.

352

22.97  The High Commissioner has also been entrusted with additional functions. The Secretary-General has indicated that the High Commissioner has overall responsibility for the activities and administration of the OHCHR.353 The Secretary-General (p. 796) has also indicated that the High Commissioner ‘advises the Secretary-General on the policies of the United Nations in the area of human rights; ensures that substantive and administrative support is given to the projects, activities, organs and bodies of the human rights programme; represents the Secretary-General at meetings of human rights organs and at other human rights events; and carries out special assignments as decided by the Secretary-General’.354 22.98  The High Commissioner thus has multiple functions. He/she must aim to secure human rights, evaluate the human rights situation in states, serve as coordinator for human rights issues within the UN, and act as a moral conscience.355 The High Commissioner has the rather sensitive task of condemning violations of human rights, whilst also being dependent on states for their cooperation and assistance.356 The rather general language of the Resolution has provided the High Commissioner with considerable flexibility to shape the role and allowed him/her to respond to changing needs.357 (p. 797) 22.99  The role requires a combination of diplomatic savviness, managerial skills, and human rights expertise.358 Much depends on the approach taken by an individual High Commissioner, as well as his/her personality and character.359 22.100  The OHCHR’s principal tasks include encouraging the development of human rights norms, monitoring human rights, and supporting the implementation of human rights by states.360 It contributes to the first two, inter alia, through the support it provides to other UN entities, such as the human rights treaty bodies and the special procedures mechanisms of the HRC, and through monitoring by its field presences.361 The third task includes activities such as training, providing legal expertise and other technical assistance, through field presences and thematic sections, including to support follow-up to recommendations of human rights mechanisms.362

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4.4.1  Support to UN human rights mechanisms 22.101  The OHCHR provides support to the HRC through its ‘Human Rights Council Mechanisms Division’. The Division is split into the ‘Human Rights Council Branch’, which assists the work of the Council;363 the ‘Special Procedures Branch’, which (p. 798) provides support to the special procedures mandate holders;364 and the ‘Universal Periodic Review Branch’, which provides support on the UPR process.365 22.102  The ‘Human Rights Treaties Division’ provides technical assistance to states, as well as support to the human rights treaty bodies, for example in the preparation of their meetings, on their work on communications, and on the harmonization of their work.366 The support provided to UN human rights mechanisms is considerable. However, owing to financial constraints, the support provided to treaty bodies and special procedures is far less than the treaty bodies or special procedures would like.

4.4.2  Supporting implementation of human rights 4.4.2.1  Human rights field presences 22.103  United Nations field operations367 were being undertaken by the UN before the establishment of the OHCHR, and some of them contained a human rights component.368 However, these presences were directed by UN Headquarters in New York, and were the subject of criticism.369 In (p. 799) 1994, the High Commissioner established a human rights field presence in Rwanda. This was the first field operation of the High Commissioner, created shortly after the first High Commissioner took up his post.370 Over time, human rights field presences have developed rapidly, such that, as at 31 December 2015, the OHCHR was operating or supporting 65 field presences.371 22.104  There are two principal types of field presences: country offices and regional offices, both of which are under the direct supervision of the OHCHR;372 and field presences (p. 800) with double reporting lines, such as human rights components of peacekeeping missions or special political missions,373 and human rights advisers in UN country teams.374 In addition, an emergency response section of the Field Operations and Technical Cooperation Division supports rapid and effective responses to crisis situations as and when they arise, such as deploying human rights officers and conducting or providing support to fact-finding missions or commissions of inquiry.375 (p. 801) 22.105  Human rights field presences engage in a variety of tasks. In general terms, some offer technical assistance and build local capacities; others also have monitoring and reporting functions; still others, in addition, support the work of UN entities, such as country special rapporteurs or UN involvement in peace processes.376

4.4.2.2  Technical cooperation 22.106  Technical cooperation377 has been described as the application of international resources and expertise to national, regional or local human rights needs and challenges, through cooperative agreements between domestic institutions and international development partners, for the purpose of strengthening domestic capacity for the promotion and protection of human rights.378 22.107  Technical cooperation assistance has been a longstanding function of the UN human rights system.379 Both the Division of Human Rights and the Centre for Human Rights provided technical assistance to states to develop and strengthen national institutions in the protection of human rights.380 In 1994, the OHCHR provided technical assistance to Burundi as a pilot case.381 Since that time, technical cooperation (p. 802) activities have grown significantly,382 such that, by the 2000s, the OHCHR became overloaded with requests for technical cooperation assistance.383 Technical cooperation is

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often an instance of preventive action,384 and it complements other types of human rights work. 22.108  A state may request technical cooperation assistance from the OHCHR. The OHCHR then carries out a needs assessment, consulting with other UN entities, governmental organizations, NGOs, and individuals, and through the OHCHR presence on the ground or a mission to the state. A needs assessment report is drawn up, identifying areas where assistance is needed and can be provided, and where existing resources can be utilized to provide assistance. An assistance programme is formulated to address the needs identified, which is then implemented. There are periodic evaluations of country programmes during the implementation process, and the programme is evaluated postimplementation.385 However, follow-up is reported to be inadequate.386 22.109  Technical cooperation activities take a variety of forms.387 They include the provision of training to the judiciary, prison officers, the police, and armed forces; assistance in electoral reform; the drafting of constitutions and legislation; advisory services on national action plans or reporting to UN treaty bodies; human rights education; and support to NGOs.388 The focus is on building the capacity of local resources, with the idea that this will eventually render the provision of outside (p. 803) technical cooperation assistance unnecessary. Technical cooperation assistance usually forms part of the work of the UN country team; however, it is also a stand-alone service. Technical cooperation assistance may take place in conjunction with other UN entities, as well as with non-UN entities.389 22.110  The provision of technical cooperation assistance in the field of human rights received renewed attention in the reform process of the UN human rights system with the focus on assisting states to meet their human rights obligations rather than on their violations. The OHCHR is clear that the provision of technical cooperation assistance is in no way a substitute for monitoring the human rights situation in a state or investigating violations.390 However, the provision of technical cooperation assistance has been criticized on precisely this basis.391 22.111  Funding for the technical cooperation programme comes from the regular UN budget and from the Voluntary Fund for Technical Cooperation in the Field of Human Rights.392

4.4.3  Engagement with national human rights institutions 22.112  National human rights institutions are non-judicial bodies established by law at the national level to promote and protect human rights.393 They usually have some (p. 804) relationship to the national government.394 A section within the Field Operations and Technical Cooperation Division of the OHCHR—the ‘National Institutions, Regional Mechanisms and Civil Society Section’—is devoted to interaction with, inter alia, national human rights institutions.395 22.113  The OHCHR assists in the creation of national human rights institutions and seeks to enhance and strengthen their capacity, thereby facilitating greater protection and promotion of human rights. For example, the OHCHR has assisted in the drafting of legislation that establishes national human rights institutions.396 22.114  Advice and assistance to national human rights institutions takes a number of forms, including the provision of technical and legal assistance. It also includes supporting the work of national human rights institutions, for example through carrying out needs assessments and evaluations; providing training on monitoring human rights, investigating violations, and reporting on both.397 It involves facilitating the engagement (p. 805) of national human rights institutions with the UN treaty bodies, the HRC, and special

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procedures.398 A fellowship programme also allows staff of national human rights institutions the possibility of working in the OHCHR section relating to national institutions. 22.115  The OHCHR also serves as the secretariat to the Global Alliance of National Human Rights Institutions.399 The Global Alliance Sub-Committee on Accreditation decides on the accreditation of national human rights institutions, such accreditation facilitating participation in the UN’s work on human rights.400 22.116  Engagement with national human rights institutions on the part of the OHCHR aids the building of local capacity in human rights, which is considered to be at least as important as the international protection of human rights.401 However, it also (p. 806) brings with it certain dangers, such as being perceived as legitimizing national entities that are cooperating with a government which is violating human rights or turning a blind eye to such violations.

4.4.4  Functions relating to the work of the UN 4.4.4.1  Coordination of human rights activities 22.117  One of the tasks of the High Commissioner is the coordination of UN activities in the field of human rights. This has been done in a number of ways, for example through organizing the annual meeting of special procedures and the coordination committee of special procedures, and working on the rationalization and strengthening of the treaty bodies.402 There has also been increased coordination between the UN and regional organizations, and with regional groupings of states.403 The very creation of the position of High Commissioner for Human Rights led to the creation of focal points within governments.404 The position also enabled dialogue with governments at the highest of levels.405 Despite the progress made in the coordination of UN human rights activities, as the human rights ‘system’ developed in a somewhat haphazard way, coordination remains an issue.

4.4.4.2  Mainstreaming human rights 22.118  The OHCHR also seeks to mainstream human rights into the UN’s work, that is to say, integrate human rights into the entirety of the UN’s work; such as its work on development and on peace and security.406 It does this, inter alia, through the participation of the High Commissioner in the UN system’s senior coordination bodies, and through the participation of the OHCHR in inter-agency bodies, particularly the UN Development Group (UNDG).407 It takes place through human rights presences in peacekeeping and (p. 807) political missions, and through human rights advisers in UN country teams.408 It also takes place through the New York Office of the OHCHR,409 and through the ‘Research and Right to Development Division’ and its thematic sections focusing on such issues as economic and social rights, women’s human rights, rule of law, racial discrimination, minorities and indigenous peoples.410 Considerable progress has been made over the years. However, there is an ‘uneven interest among UN agencies and programmes in integrating the human rights dimension into their policies and activities’.411

4.4.5  Other functions 4.4.5.1  Human rights education 22.119  Certain human rights instruments provide for an obligation on states parties to bring the instrument to the attention of the public.412 Others require specific segments of the population to be informed of particular human rights.413 If individuals prove unaware of their rights, they will not be in a position to enforce them. Accordingly, the importance of human rights education has been widely acknowledged.414 The OHCHR has produced written literature on (p. 808) human rights to enhance knowledge of human rights throughout the world.415 It also empowers rights holders through targeted trainings and annual fellowship programmes, including for indigenous peoples, ethnic, linguistic and religious minorities, and people of African descent. The OHCHR works with other UN From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

entities and non-UN entities in the pursuit of human rights education.416 For example, a joint project with UNDP was launched in 1998 to provide funding for NGOs and local associations for their work on human rights education and training.417 The period 1995– 2004 also served as the UN Decade for Human Rights Education, for which the High Commissioner was tasked with the coordination of activities.418 Following that decade, an ongoing ‘World Programme for Human Rights Education’ was established.419 A Declaration on human rights education and training was adopted in 2011.420 Quite what impact ‘human rights education’ has had is difficult to determine.

(p. 809) 4.4.5.2  Right to development 22.120  Promotion and protection of the realization of the right to development is an explicit part of the High Commissioner’s mandate.421 One of the four divisions of the OHCHR is the ‘Research and Right to Development Division’. One of the two branches of the Division focuses on development and economic and social issues (the other branch focuses on ‘Rule of Law, Equality and Non-Discrimination’). The former branch works on the right to development along with related issues, such as poverty, globalization, and trade. It also works on the Sustainable Development Goals (and previously the Millennium Development Goals). The OHCHR was instrumental in establishing a close link between the Millennium Development Goals and human rights, the former initially being somewhat separate from the latter.422 It also played an influential role in integrating human rights into the Sustainable Development Goals and ensuring that the Goals were grounded in human rights standards.423 The OHCHR further provides support and assistance to the Working Group on the Right to Development, and previously also to the High-Level Task Force on the Implementation of the Right to Development.424 It works with other UN entities, the World Bank, and the international financial institutions in the context of the right to development.425 It provides support and expertise on a variety of issues, including the right to development, human rights indicators, and poverty and aid policy matters.426

4.4.5.3  International conferences 22.121  The OHCHR supports the work of international conferences on human rights issues.427

(p. 810) 4.4.5.4  Trust funds 22.122  The OHCHR also administers a number of funds that support activities ranging from civil society work, to combatting modern-day slavery, to the participation of indigenous peoples’ representatives in UN human rights mechanisms.428

4.5  Funding 22.123  The OHCHR is funded from the regular UN budget as well as voluntary contributions. In its early years, the OHCHR had a very small budget and few posts.429 Over time, the situation has been transformed, such that, for the 2014–15 biennium, $207 million of the regular UN budget was devoted to the work of the OHCHR.430 However, this figure represents only a fraction (3.5 per cent) of the UN budget, and covers only some 40 per cent of the OHCHR’s work.431 22.124  In light of its minimal budget, a Voluntary Fund for the Support of the Activities of the High Commissioner/Centre for Human Rights was created. Voluntary contributions continue to fund a large part of the work of the OHCHR, in particular the human rights field presences. In 2015, some $125.9 million in voluntary contributions was received, the most ever received by the OHCHR.432 These funds come from states, international organizations, and private doners.433 However, the very (p. 811) nature of voluntary contributions means that it is never certain how much funding will be received, and whether this will be enough

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to continue particular areas of work.434 Furthermore, much of the voluntary contributions tends to be earmarked for particular projects.435

(p. 812) 5.  Human Rights Treaties and Treaty Bodies Annual reports of the treaty bodies; http://www.ohchr.org/EN/pages/home.aspx; Alston (ed), The United Nations and Human Rights (1992); Alston and Crawford (eds), The Future of UN Human Rights Treaty Monitoring (2000); Bayefsky (ed), The UN Human Rights Treaty System in the 21st Century (2000); Keller and Ulfstein, UN Human Rights Treaty Bodies: Law and Legitimacy (2012); Klein (ed), The Monitoring System of the Human Rights Treaty Obligations (1998); O’Flaherty, Human Rights and the UN: Practice before the Treaty Bodies (2002); Rodley, ‘The Role and Impact of Treaty Bodies’ in The Oxford Handbook of International Human Rights Law (ed Shelton, 2013); Stoll, ‘Human Rights, Treaty Bodies’ in MPEPIL (online); Tomuschat, Human Rights: Between Idealism and Realism (2014), 171– 229; Vandenhole, The Procedures Before the UN Human Rights Treaty Bodies: Divergence or Convergence? (2004). Boerefijn, The Reporting Procedure under the Covenant on Civil and Political Rights (1999); Bossuyt, Guide to the ‘Travaux Préparatoires’ of the International Covenant on Civil and Political Rights (1987); Bouziri, La protection des droits civils et politiques par l’ONU: l’oeuvre du Comité des droits de l’homme (2003); Buergenthal, ‘The UN Human Rights Committee’ (2001) 5 MPUNYB 341; Gandhi, The Human Rights Committee and the Right of Individual Communication: Law and Practice (1998); Henkin (ed), The International Bill of Rights: The Covenant on Civil and Political Rights (1981); Higgins, ‘Ten Years on the Human Rights Committee: Some Thoughts upon Parting’ (1996) 6 EHRLR 570; Joseph and Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2013); McGoldrick, The Human Rights Committee (1994); Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2005); Tomuschat, ‘Human Rights Committee’ in MPEPIL (online); Tyagi, The UN Human Rights Committee: Practice and Procedure (2011); Young, The Law and Process of the UN Human Rights Committee (2002). Alston, ‘Out of the Abyss: The Challenges Confronting the New UN Committee on Economic, Social and Cultural Rights’ (1987) 9 HRQ 332; Arambulo, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights (1999); Craven, The International Covenant on Economic, Social and Cultural Rights (1995); Eide, Krause, and Rosas, Economic, Social and Cultural Rights: A Textbook (2001); Harris, ‘Commentary by the Rapporteur on the Consideration of States Parties’ Reports and International Co-operation (1987) 9 HRQ 147; Limburg, ‘Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights’ (1987) 9 HRQ 122; Odello and Seatzu, The UN Committee on Economic, Social and Cultural Rights: The Law, Process and Practice (2012); Reidel, ‘Committee on Economic, Social and Cultural Rights (CESCR)’ in MPEPIL (online); Saul, Kinley, and Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials (2014); Sepulveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (2003); Ssenyonjo, Economic, Social and Cultural Rights in International Law (2009). Banton, International Action against Racial Discrimination (1996); Bidault, Le Comité pour l’élimination de la discrimination raciale: analyse d’une dynamique institutionnelle (1997); Buergenthal, ‘Implementing the UN Racial Convention’ (1977) 12 Texas International Law Journal 187; Lerner, The UN Convention on the Elimination of all Forms of Racial Discrimination (1980); Schwelb, ‘The International Convention on the Elimination of All Forms of Racial Discrimination’ (1966) 15 ICLQ 996; Thornberry, The International Convention on the Elimination of All Forms of Racial Discrimination: A Commentary (2016);

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Wolfrum, ‘The Committee on the Elimination of Racial Discrimination’ (1999) 3 MPUNYB 489. (p. 813) Byrnes, ‘The “Other” Human Rights Treaty Body: The Work of the Committee on the Elimination of Discrimination against Women’ (1989) 14 Yale JIL 1; Freeman, Chinkin, and Rudolf (eds), The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary (2012); Galey, ‘International Enforcement of Women’s Rights’ (1984) 6 HRQ 463. Buchinger, The Optional Protocol to the United Nations Convention against Torture (2009); Burgers and Danelius, The United Nations Convention against Torture (1988); Evans and Haenni-Dale, ‘Preventing Torture? The Development of the Optional Protocol to the UN Convention against Torture’ (2004) 4 HRLR 19; Ingelse, The UN Committee against Torture: An Assessment (2001); Murray et al, The Optional Protocol to the UN Convention against Torture (2011); Nowak, ‘The Implementation Functions of the UN Committee against Torture’ in Fortschritt im Bewußtsein der Grundund Menschenrechte: Festschrift für Felix Ermacora (eds Nowak, Steurer, and Tretter, 1988), 510; Nowak and McArthur, The United Nations Convention against Torture: A Commentary (2008); Rodley and Pollard, The Treatment of Prisoners under International Law (2009). de Beco, ‘The Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure: Good News?’ (2013) 13 HRLR 367; Detrick, A Commentary on the United Nations Convention on the Rights of the Child (1999); Egan, ‘The New Complaints Mechanism for the Convention on the Rights of the Child: A Mini Step Forward for Children?’ (2014) 22 International Journal of Children’s Rights 205; LeBlanc, The Convention on the Rights of the Child (1995); Lee, ‘Communications Procedure under the Convention on the Rights of the Child: 3rd Optional Protocol’ (2010) 18 International Journal of Children’s Rights 567; OHCHR, Legislative History of the Convention on the Rights of the Child (2007); Türkelli, Vandenhole, and Vandenbogaerde, ‘NGO Impact on Law-Making: The Case of a Complaints Procedure under the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child’ (2013) 5 Journal of Human Rights Practice 1; various, A Commentary on the United Nations Convention on the Rights of the Child (Martinus Nijhoff, ongoing). Cholewinski, Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment (1997); de Guchteneire, Pecoud, and Cholewinski (eds), Migration and Human Rights: The United Nations Convention on Migrant Workers’ Rights (2009). Arnardóttir and Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Leiden, Martinus Nijhoff, 2009); Broderick, The Long and Winding Road to Equality and Inclusion for Persons with Disabilities: The United Nations Convention on the Rights of Persons with Disabilities (2015); Stein and Lord, ‘Monitoring the Convention on the Rights of Persons with Disabilities: Innovations, Lost Opportunities, and Future Potential’ (2010) 32 HRQ 689; (2007) 34 Syracuse JIL and Commerce 287–671 (symposium). Scovazzi and Citroni, The Struggle against Enforced Disappearance and the 2007 United Nations Convention (2007). Cede, ‘European Responses to Questionable Reservations’ in Development and Developing International and European Law: Essays in Honour of Konrad Gunther on the Occasion of his 65th Birthday (eds Benedek, Isak, and Kicker, 1999); Cohen-Jonathan, ‘Les réserves dans les traités institutionnels relatifs aux droits de l’homme’ (1996) 4 RG 916; Frowein, ‘Reservations to the European Convention on Human Rights’ in Protecting Human Rights: The European Dimension (eds Matscher and Petzold, 1988); Greig, ‘Reservations: Equity as a Balancing Factor’ (1995) 16 Aust YBIL 21; Higgins, ‘Introduction’ in Human Rights as General Norms and a State’s Right to Opt Out (ed Gardner, 1997); Korkelia, ‘New Challenges to the Regime of Reservations under the International Covenant on Civil and From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Political Rights’ (2002) 13 EJIL 437; Linton, ‘ASEAN States, their Reservations to Human Rights Treaties and the (p. 814) Proposed ASEAN Commission on Women and Children’ (2008) 30 HRQ 436; Macdonald, ‘Reservations under the European Convention on Human Rights’ (1998) RBDI 429; Marks, ‘Reservations Unhinged: The Belilos Case before the European Court of Human Rights’ (1990) 39 ICLQ 300; Tyagi, ‘The Conflict of Law and Policy on Reservations to Human Rights Treaties’ (2000) 71 BYIL 181; Zemanek, ‘Reexamining the Genocide Opinion: Are the Object and Purpose of a Convention Suitable Criteria for Determining the Admissibility of Reservations’ in Liber Amicorum Judge Shigeru Oda (eds Ando, McWhinney, and Wolfrum, 2002). Report of the Secretary-General, Status of the human rights body system, UN Doc A/71/118, 18 July 2016; UN General Assembly, Report of the co-facilitators on the intergovernmental process of the General Assembly on strengthening and enhancing the effective functioning of the human rights body treaty system, UN Doc A/68/832, 9 April 2014; Report of the Secretary-General on measures taken to implement resolution 9/8 and obstacles to its implementation, including recommendations for further improving the effectiveness, harmonization and reform of the treaty body system, UN Doc A/HRC/25/22, 17 January 2014; UNHCHR, United Nations reform: measures and proposals, UN Doc A/66/860, 26 June 2012; Report of the Secretary-General, Measures to improve further the effectiveness, harmonization and reform of the treaty body system, UN Doc A/66/344, 7 September 2011; Report of the Secretariat, Concept Paper of the High Commissioner’s Proposal for a Unified Standing Treaty Body, UN Doc HRI/MC/2006/2, 22 March 2006; Report of the SecretaryGeneral, In larger freedom: towards development, security and human rights for all, UN Doc A/59/2005, 21 March 2005; Report of the Secretary-General, Status of implementation of actions described in the report of the Secretary-General entitled ‘Strengthening of the United Nations: an agenda for further change’, UN Doc A/58/351, 5 September 2003; Report of the Secretary-General, Strengthening of the United Nations: an agenda for further change, UN Doc A/57/387, 9 September 2002; Alston, Effective Functioning of Bodies Established Pursuant to United Nations Human Rights Instruments, UN Doc E/CN. 4/1997/74, 27 March 1997; Bassiouni and Schabas (eds), New Challenges for the UN Human Rights Machinery: What Future for the UN Treaty Body System and the Human Rights Council Procedures? (2011); Bowman, ‘Towards a Unified Treaty Body for Monitoring Compliance with UN Human Rights Conventions? Legal Mechanisms for Treaty Reform’ (2007) 7 HRLR 1; Egan, ‘Strengthening the United Nations Human Rights Treaty Body System’ (2013) 13 HRLR 2; Johnstone, ‘Cynical Savings or Reasonable Reform? Reflections on a Single Unified UN Human Rights Treaty Body’ (2007) 7 HRLR 1; Morijn, ‘Reforming United Nations Human Rights Treaty Monitoring Reform’ (2011) 58 NILR 3; O’Flaherty, ‘Reform of the UN Human Rights Treaty Body System: Locating the Dublin Statement’ (2010) 10 HRLR 2; O’Flaherty, ‘The Strengthening Process of the Human Rights Treaty Bodies’ (2014) 108 ASIL Proceedings; O’Flaherty and O’Brien, ‘Reform of UN Human Rights Treaty Monitoring Bodies: A Critique of the Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body’ (2007) 7 HRLR 1; Pedone and Kloster, ‘New Proposals for Human Rights Treaty Body Reform’ (2012) 22 Journal of Transnational Law and Policy 29; Pillay, Strengthening the United Nations Human Rights Treaty Body System: A Report by the United Nations High Commissioner for Human Rights (June 2012); Rodley, ‘Duplication and Divergence in the Work of the United Nations Human Rights Treaty Bodies: A Perspective from a Treaty Body Member’ (2011) 105 ASIL Proceedings 512; Shany, ‘The Effectiveness of the Human Rights Committee and the Treaty Body Reform’, International Law Forum of the Hebrew University of Jerusalem Law Faculty, Research Paper No 02-13 (2013).

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(p. 815) 5.1  Standard-setting 5.1.1  Introduction 22.125  Standard-setting in the field of human rights has been one of the primary activities of the UN. The UN Charter itself contains several provisions relating to human rights matters. Amongst the purposes of the UN listed in Article 1 of the Charter is ‘[t]o achieve international cooperation…in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’. Article 55(c) similarly provides that 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’, while Article 56 provides that ‘All Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.’436 The legal status of the human rights provisions of the Charter is not uncontentious.437 It has been said that, ‘Though imperfect from the point of view of enforcement, the relevant provisions of the Charter constitute legal obligations of the members of the United Nations and of the organisation as a whole.’438

5.1.2  Universal Declaration of Human Rights 22.126  One of the early resolutions of the General Assembly was the UDHR (or ‘Universal Declaration’).439 The Universal Declaration provides, inter alia, for the right to life; the right to be free from torture and from slavery; the freedoms of thought, conscience, and religion, opinion and expression, assembly and association; the rights to education and work; and the right to an adequate standard of living.440 (p. 816) 22.127  At its inception and during the period immediately following its adoption, the precise legal status of the Universal Declaration was disputed.441 Over time, many of its provisions have passed into customary international law; and many of its provisions have subsequently been included in conventions. The importance of the UDHR cannot be overstated, even though it contains none of the qualifications to certain rights that have been considered necessary in later treaties, including the International Covenants.442 Since the adoption of the UDHR in 1948, numerous human rights treaties have been concluded under the auspices of the UN.

5.1.3  The core international human rights treaties 22.128  The notion of a ‘core’ international human rights treaty, or a ‘principal’ international human rights treaty, is not a term of art. One of the features common to the ‘core’ human rights treaties is the establishment of a treaty body that examines the progress made by states parties in the implementation of the treaty.

(p. 817) 5.1.3.1  The ICCPR, ICESCR, and their Optional Protocols 22.129  Following the adoption of the UDHR, the General Assembly requested ECOSOC to ask the Commission on Human Rights to give priority to the preparation of a draft covenant on human rights.443 The General Assembly resolution was subsequently transmitted to the Commission by ECOSOC, ‘for the action contemplated therein’.444 After commencing work on the draft covenant and in light of various internal disagreements,445 the Commission decided to adopt a draft covenant on civil and political rights, and draw up a draft covenant on economic, social, and cultural rights at a later stage. In light of these disagreements, ECOSOC requested that the General Assembly decide whether the draft covenant should include articles on economic, social, and cultural rights,446 a question which the General Assembly answered in the affirmative.447

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22.130  Despite this instruction, the Commission continued to treat the classes of rights differently. Accordingly, ECOSOC requested that the General Assembly reconsider its decision,448 which it did. The General Assembly requested ECOSOC to ask the Commission to draw up two covenants: one on civil and political rights and the other on economic, social, and cultural rights.449 Draft covenants were duly drawn up by the Commission and passed on to the General Assembly. The Third Committee of the General Assembly considered the drafts between 1955 and 1966. The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) were adopted by the General Assembly in December 1966.450 They entered into force in 1976, that being the period of time it took for 35 ratifications to be received. 22.131  The ICCPR is the principal international instrument on civil and political rights.451 It is divided into six parts. Part I consists of the right of self-determination.452 Part (p. 818) II contains a number of general provisions on, inter alia, the nature of Covenant obligations, equality, and non-discrimination, and derogations.453 Part III sets out a number of substantive rights, including the right to life; the right to be free from torture and slavery; the right to liberty and security of the person; the right to liberty of movement; fair trial rights; the right to privacy; the freedoms of thought and expression, assembly and association; and rights of the child and of minorities.454 Part IV contains provisions on the mechanism that examines the progress made by states parties in the implementation of the Covenant—the Human Rights Committee.455 Part V consists of savings clauses, while Part VI comprises the final clauses, covering issues such as ratification and amendment of the Covenant.456 22.132  There are two optional protocols to the ICCPR. The first, which was adopted at the same time as the ICCPR, concerns individual communications to the Human Rights Committee.457 The second—the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty—was adopted in 1989.458 Pursuant to Article 1(1) of the Second Optional Protocol, ‘No one within the jurisdiction of a State Party to the present Protocol shall be executed.’ Article 1(2) provides that ‘Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.’ The Protocol does not require total abolition of the death penalty on the part of states parties, as a reservation may be made at the time of ratification or accession that ‘provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime’.459 22.133  The ICESCR is the principal international instrument on economic, social, and cultural rights.460 It is divided into five parts. Part I consists of the right of selfdetermination.461 Part II contains a number of general provisions, including provisions on the progressive realization of Covenant rights, equality, and limitations.462 Part III sets out a number of substantive rights, including the right to work and work-related rights; the right to an adequate standard of living; the right to the highest attainable standard (p. 819) of health; the right to education; and cultural rights.463 Part IV contains provisions on the reporting obligations of states and monitoring mechanisms.464 Part V contains the final clauses, concerning matters such as ratification and amendment.465 22.134  The Optional Protocol to the ICESCR was adopted in 2008.466 It concerns individual communications, inter-state communications, and inquiries of the Committee on Economic, Social and Cultural Rights. 22.135  Following the adoption of the ICCPR and ICESCR, a number of other human rights treaties were concluded on subject-specific issues.

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5.1.3.2  The ICERD 22.136  The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) was adopted by the General Assembly and opened for signature in December 1965.467 It was drafted after the drafting of the ICCPR and ICESCR had commenced, but was adopted prior to the adoption of the Covenants. 22.137  Following the adoption of the Declaration on the Elimination of All Forms of Racial Discrimination,468 the General Assembly requested that ECOSOC invite the Commission on Human Rights to give ‘absolute priority’ to the preparation of a draft convention on the subject.469 The Commission submitted a draft convention to ECOSOC, which was based on a text prepared by the Sub-Commission.470 In turn, ECOSOC submitted the draft convention, together with a number of other documents, to the General Assembly for its consideration and subsequent adoption.471 (p. 820) 22.138  The ICERD is divided into three parts.472 Part I sets out the definition of racial discrimination and the obligations of states parties to the Convention.473 Part II establishes the body that examines the progress made by states parties in the implementation of the Convention—the Committee on the Elimination of Racial Discrimination—and specifies its role and functions.474 Part III contains the final clauses, dealing with such matters as ratification, entry into force of the Convention, and reservations to the Convention.475 Part III also provides for reference to the ICJ in the event of a dispute as to the interpretation or application of the Convention that is not settled by negotiation or other procedures laid down in the Convention.476

5.1.3.3  CEDAW and its Optional Protocol 22.139  The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted by the General Assembly and opened for signature in 1979.477 Although several instruments in the area were in existence,478 each was of limited scope. 22.140  The Declaration on the Elimination of Discrimination against Women was adopted by the General Assembly in 1967.479 Following the adoption of the Declaration, an international convention was proposed by a delegate to the Commission on the Status of Women; and the Commission established a Working Group to consider the possibility of a convention.480 In 1975, the World Conference of the International Women’s Year recommended that ‘[h]igh priority should be given to the preparation and adoption of the convention on the elimination of discrimination against women, with effective procedures for its implementation’.481 The General Assembly also requested the Commission on the Status of Women to complete the elaboration of a (p. 821) draft convention on the elimination of discrimination against women.482 In 1976, the Working Group of the Commission referred a draft convention to the Commission for its consideration, together with additional drafts that were submitted by Benin, Indonesia, and the All African Women’s Conference.483 The Commission, focusing on the draft submitted by the Working Group, prepared a draft convention, and submitted it through ECOSOC to the General Assembly. The draft was considered by a ‘Working Group of the Whole’ of the General Assembly’s Third Committee, before sending a revised version on to the General Assembly for its consideration.484 22.141  The Convention is divided into six parts.485 Parts I through IV contain provisions on the equality of men and women, and on the elimination of discrimination against women in various fields such as political and public life, education, and healthcare.486 Part V pertains to the creation and operation of the Committee that examines the progress made by states parties in the implementation of the Convention—the Committee on the Elimination of Discrimination against Women.487 Part VI contains savings clauses and final clauses.488

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22.142  The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (OP-CEDAW) was adopted and opened for signature by the General Assembly in 1999.489 It concerns the competence of the Committee on the Elimination of Discrimination against Women to receive and consider individual communications and to conduct an inquiry.490

(p. 822) 5.1.3.4  Convention against Torture and its Optional Protocol 22.143  The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) was adopted and opened for signature by the General Assembly in December 1984.491 22.144  In 1973, the General Assembly passed a resolution expressing concern about the use of torture.492 One year later, the Commission on Human Rights expressed concern to the Government of Chile about practices of torture.493 The following year, the General Assembly adopted the Declaration on the Prevention of All Persons from being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.494 In 1977, ‘believing that further international efforts are needed to ensure adequate protection for all against torture and other cruel, inhuman or degrading treatment or punishment’, the General Assembly requested the Commission on Human Rights to prepare a draft convention against torture and other cruel, inhuman, or degrading treatment or punishment.495 The Commission recommended to ECOSOC that an intersessional Working Group, open to all members of the Commission, be tasked with the drawing up of a draft convention.496 The Working Group duly prepared a draft convention for the Commission, which, in turn, adopted it and transmitted it to the General Assembly for consideration.497 22.145  The Convention against Torture is a specialized instrument, concerned alone with torture and cruel, inhuman, and degrading treatment and punishment. The Convention sets out a definition of torture, obligations for states parties, and a monitoring mechanism in the form of the Committee against Torture.498 22.146  The Optional Protocol to the Convention against Torture (OP-CAT) was adopted and opened for signature by the General Assembly in 2002.499 The ‘objective’ of the (p. 823) Optional Protocol is ‘to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment’.500 A Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the Committee against Torture was established in that regard.501 States parties are also to ‘set up, designate or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment’.502

5.1.3.5  Convention on the Rights of the Child and its Optional Protocols 22.147  The protection of the rights of the child has a long history.503 In 1959, the General Assembly adopted the Declaration of the Rights of the Child.504 In 1976, it proclaimed 1979 to be the International Year of the Child.505 In 1978, Poland submitted a draft convention on the rights of the child to the Commission on Human Rights.506 The Commission, taking into consideration the draft convention submitted by Poland, requested the Secretary-General to transmit the draft convention to member states, specialized agencies, inter-governmental organizations, and NGOs, inviting them to submit views on such a convention.507 The Commission also decided to continue its consideration of a draft convention on the rights of the child.508 Following the receipt of views,509 in 1979, the Commission convened an openended Working Group to consider a convention on the rights of the child.510 A text was adopted in 1989 and transmitted to the Commission on Human Rights for approval.511 The Commission, in turn, submitted the draft Convention to the General Assembly through ECOSOC.512 The draft Convention was discussed in the Third Committee,513 and

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subsequently adopted by the General Assembly in November 1989.514 It soon became the most widely ratified international human rights treaty. (p. 824) 22.148  The Convention on the Rights of the Child (CRC) is divided into three parts.515 Part I contains provisions on the substantive rights of the child.516 Part II consists of provisions concerning the Committee on the Rights of the Child,517 while Part III contains the final clauses.518 22.149  The Convention benefits from three Optional Protocols. The first, adopted in May 2000, pertains to the involvement of children in armed conflict.519 The second, also adopted in May 2000, relates to the sale of children, child prostitution, and child pornography.520 The third, adopted in December 2011, establishes an individual communications procedure, an inter-state communications procedure, and an inquiry procedure for the Committee on the Rights of the Child.521

5.1.3.6  International Convention on Migrant Workers 22.150  The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICMW or ‘International Convention on Migrant Workers’) was adopted and opened for signature by the General Assembly in December 1990.522 22.151  During the 1970s, the General Assembly adopted a number of resolutions in which it expressed its concern regarding the treatment of foreign workers.523 In 1973, ECOSOC requested the Sub-Commission on Prevention of Discrimination and Protection of Minorities to recommend measures that may be necessary to protect, (p. 825) without distinction, the human rights of foreign workers.524 The Sub-Commission appointed one of its members Special Rapporteur, who prepared a study on the subject and set out a series of recommendations. These were examined by the Sub-Commission and a report transmitted to the Commission on Human Rights.525 The General Assembly subsequently requested that the Secretary-General consider, with member states and in cooperation with UN agencies, the possibility of preparing a convention on the rights of migrant workers.526 A convention on the protection of migrant workers was also envisaged by the World Conference to Combat Racism that same year.527 The Secretary-General prepared a report summarizing the views and comments received.528 Following the report, the General Assembly convened an open-ended Working Group to draw up a convention,529 a process that took some 10 years to complete. It took a further 12 years for the Convention to enter into force. 22.152  The International Convention on Migrant Workers is divided into nine parts.530 Part I is concerned with the scope of the Convention and provides definitions of key terms including that of a migrant worker, while Part II comprises a non-discrimination clause.531 Parts III and IV set out substantive rights. Part III sets out those rights that are afforded to all migrant workers and members of their family; Part IV sets out other rights of migrant workers and members of their families who are documented or in a regular situation.532 Part V contains provisions that are applicable to particular categories of migrant workers, such as itinerant workers or seasonal workers, and members of their families.533 Part VI contains provisions on state cooperation in the field of migration, while Part VII establishes the Committee on Migrant Workers.534 Part VIII contains general provisions, while Part IX sets out final clauses.535

5.1.3.7  Convention on the Rights of Persons with Disabilities and its Optional Protocol 22.153  The General Assembly adopted the Convention on the Rights of Persons with Disabilities (CRPD) and the Optional Protocol thereto in December 2006.536

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(p. 826) 22.154  Over the years, the General Assembly has adopted a number of instruments on the subject of the rights of persons with disabilities.537 In 2001, the General Assembly established an ad hoc Committee to consider proposals for a convention on the human rights of persons with disabilities.538 ECOSOC acted as the ad hoc Committee’s secretariat.539 Most members of the ad hoc Committee understood its mandate to be the development of a text of a convention, and the ad hoc Committee established a Working Group to prepare a draft text.540 The Working Group prepared a text, which was subsequently considered by the ad hoc Committee. The text of the convention, as adopted by the ad hoc Committee, was referred to the General Assembly for adoption.541 22.155  The purpose of the Convention is stated as being ‘to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity’.542 After provisions on, inter alia, definitions, state obligations, and equality and non-discrimination, the Convention contains provisions on substantive rights.543 It also contains some novel features, including provisions on awareness-raising and social protection.544 The substantive rights are followed by provisions on the Committee on the Rights of Persons with Disabilities and final clauses.545 The Convention also provides for regular conferences of states parties, ‘in order to consider any matter with regard to the implementation of the present Convention’.546 (p. 827) 22.156  The Optional Protocol to the Convention on the Rights of Persons with Disabilities was adopted at the same time as the Convention.547 The Optional Protocol establishes an individual communications procedure and an inquiry procedure.548

5.1.3.8  International Convention for the Protection of All Persons from Enforced Disappearance 22.157  The International Convention for the Protection of All Persons from Enforced Disappearance (CPED) was adopted by the General Assembly in 2006.549 22.158  In 1978, the General Assembly adopted a resolution on disappeared persons in which, amongst other things, it requested the Commission on Human Rights to consider the issue.550 Subsequently, the Commission on Human Rights established the Working Group on Enforced and Involuntary Disappearances.551 In 1990, the General Assembly expressed its concern over the persistence of the practice of enforced disappearances, and in 1992 it adopted the Declaration on the Protection of All Persons from Enforced or Involuntary Disappearance.552 In light of the lack of a binding instrument on the subject, the Commission appointed an independent expert to ‘examine the existing international criminal and human rights framework for the protection of persons enforced or involuntary disappearance’ and to identify gaps ‘in order to ensure full protection from enforced or involuntary disappearance’.553 The Commission also established an intersessional openended Working Group, with the mandate ‘to elaborate, in the light of the findings of the independent expert, a draft legally binding normative instrument for the protection of all persons from enforced disappearance’.554 The independent expert prepared a report in which he identified a number of gaps in the international legal framework and found that (p. 828) these gaps indicated the need for a legally binding instrument on the subject.555 The open-ended Working Group prepared a draft convention, which was transmitted to the HRC.556 The HRC, in turn, referred the draft convention to the General Assembly for adoption.557 22.159  The Convention is made up of three parts.558 Part I contains a definition of enforced disappearance and sets out the obligations of states parties to the Convention.559 Part II establishes the Committee on Enforced Disappearances and specifies the functions

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of the Committee,560 while Part III contains savings clauses and final clauses.561 Article 27 of the Convention provides: A Conference of the States Parties will take place at the earliest four years and at the latest six years following the entry into force of this Convention to evaluate the functioning of the Committee and to decide, in accordance with the procedure described in article 44, paragraph 2, whether it is appropriate to transfer to another body—without excluding any possibility—the monitoring of this Convention, in accordance with the functions defined in articles 28 to 36. At the Conference of States Parties in December 2016, it was decided that ‘the Committee on Enforced Disappearances continue to monitor the International Convention for the Protection of All Persons from Enforced Disappearance in accordance with the functions defined in articles 28 to 36’.562

5.1.4  Other instruments 22.160  In addition to the core human rights treaties, a number of other important treaties have been adopted, such as the Convention on the Prevention and Punishment of the Crime of Genocide,563 and the Convention Relating to the Status of (p. 829) Refugees.564 Other notable human rights instruments concluded under UN auspices include:565 the Basic Principles for the Treatment of Prisoners,566 the Declaration on the Elimination of Violence against Women,567 and the Declaration on the Rights of Indigenous Peoples.568

5.2  Human rights treaty bodies 22.161  Each of the core international human rights treaties benefits from a treaty body that is established to examine the progress made by states parties in the implementation of the treaty. In so far as the ICESCR is concerned, the Committee on Economic, Social and Cultural Rights (CESCR) was established pursuant to ECOSOC Resolution 1985/17, rather than through the Covenant itself.569

5.2.1  Membership 22.162  The number of members of a human rights treaty body varies considerably. The Human Rights Committee, the CESCR, and the Committee on the Elimination of Racial Discrimination each consist of 18 members.570 By contrast, the Committee against Torture and the Committee on Enforced Disappearances are made up of 10 members.571 (p. 830) 22.163  The composition of other treaty bodies has changed over time, either as envisaged by the relevant treaty,572 or through amendment of the treaty.573 There does not appear to be any particular cogent reason for the range in size of the treaty bodies. 22.164  With the exception of the CESCR, members of the treaty bodies are elected by states parties to the relevant convention.574 Members of the CESCR are elected by ECOSOC, members of which do not need to be party to the ICESCR.575 22.165  Members of the treaty bodies serve in their ‘personal capacity’,576 and are to be of ‘high moral standing’.577 Beyond these common stipulations, the requirements for membership differ. Members of the CESCR are required to have ‘recognized competence in the field of human rights’.578 The same is true of members of the Human Rights Committee, with states parties also being required to consider ‘the usefulness (p. 831) of the participation of some persons having legal experience’.579 The Convention against Torture exhorts states parties to ‘bear in mind the usefulness of nominating persons who are also members of the Human Rights Committee’.580 Members of the Committee on the Rights of the Child are to have ‘recognized competence in the field covered by [the] Convention’.581 The Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment consists of members who have ‘proven professional experience in the field of the administration of justice, in particular criminal law, prison or police

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administration, or in the various fields relevant to the treatment of persons deprived of their liberty’.582 In 2014, as part of the treaty body strengthening process, the General Assembly encouraged states parties to the core international human rights treaties to nominate experts of high moral standing and recognized competence and experience in the field of human rights in particular in the field covered by the relevant treaty, and, as appropriate, to consider adopting national policies or processes with respect to the nomination of experts as candidates for human rights treaties…583 22.166  Treaties that have been adopted in the 2000s have contained additional specifications. The OP-CAT, CPED, and CRPD refer to ‘balanced gender representation’,584 a point that has proved necessary in light of the gender imbalance on human rights treaty bodies.585 In nominating individuals to the Committee on the Rights of (p. 832) Persons with Disabilities, states parties are to give due consideration to the provision in the Convention that they shall ‘closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations’.586 Consideration is also to be given to ‘participation of experts with disabilities’.587 22.167  In the election of the treaty bodies, regard is to be paid to ‘equitable geographical distribution’ and, for certain Committees, also to ‘representation of the different forms of civilization and of the principal legal systems’.588 For the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, ‘equitable geographical distribution’ includes ‘both States of origin and States of employment’.589 22.168  Members serve for a term of four years, with the possibility of re-election.590 22.169  The provisions of a number of treaties provide that members of the relevant treaty body are to receive ‘emoluments from United Nations resources on such terms and conditions as the General Assembly may decide, having regard to the importance of the Committee’s responsibilities’.591 In practice, however, the General Assembly has ignored the latter part of the provision, providing members with a mere $1.592 This (p. 833) can in no way be taken to reflect the importance of the responsibilities of the treaty bodies. The Human Rights Committee has taken the view that the reduction of the emolument to $1 amounts to a violation of the Covenant.593 Despite the reduction of the emolument, the CRPD, which was adopted subsequent to the reduction, provides for ‘emoluments from United Nations resources on such terms and conditions as the [General] Assembly may decide, having regard to the importance of the Committee’s responsibilities’.594

5.2.2  Meetings 22.170  Until the culmination of the treaty body-strengthening process in 2014, the treaty bodies tended to meet twice a year, for two to four weeks at a time.595 By contrast, the Human Rights Committee,596 the Committee on the Elimination of Discrimination against Women,597 and the Committee on the Rights of the Child met (p. 834) three times a year.598 In 2014, as part of the treaty body-strengthening process, which focused, in part, on increasing the meeting time of treaty bodies to address the backlog of individual communications, the length of meeting time was amended.599 In 2015, treaty bodies met on average for two-and-a-half months.600 However, the exact meeting times of treaty bodies will depend on their backlogs.601 (p. 835) 22.171  Meetings of treaty bodies take place in Geneva.602 Lack of funding has meant that, on occasion, the treaty bodies have been unable to meet, or have been forced to meet at a location other than that set out in the constituent instrument.

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(p. 836) 22.172  The human rights treaties contain a provision along the lines that ‘[t]he Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee’.603 It is therefore up to the Secretary-General to determine which entity is to provide support to the treaty bodies. In practice, the treaty bodies are supported by the OHCHR.604 Treaty bodies have not infrequently requested further support from the OHCHR.605

(p. 837) 5.2.3  Mandate and work 22.173  The role of the human rights treaty bodies is to examine the progress made by states parties in the implementation of the relevant conventions.606 This is done through the functions of the body contained in the relevant instrument.607 Although the specific functions of a particular treaty body vary, with the exception of the Subcommittee on the prevention of Torture, they include consideration of state party reports and individual communications.608 Some treaty bodies also have the competence to consider inter-state communications and to conduct inquiries. Treaty bodies also tend to issue general comments or general recommendations, and carry out a range of other activities.

5.2.3.1  State party reports 22.174  States parties to the core international human rights treaties submit reports to the treaty bodies on the measures they have taken that give effect to the provisions of the relevant treaty.609 States parties’ reports serve a number of purposes.610 The ‘reporting process constitutes an essential element in the (p. 838) continuing commitment of a State to respect, protect and fulfil the rights set out in the treaties to which it is party’.611 The preparation of reports itself provides an opportunity for states parties ‘to take stock of the state of human rights protection within their jurisdiction for the purpose of policy planning and implementation’.612 The treaty bodies have drawn up detailed guidelines on the information to be provided in state party reports.613 22.175  Initial reports are to be submitted within one or two years of the entry into force of the convention for the state party concerned and periodically thereafter, the precise (p. 839) timeframe being set out in the convention or by the treaty body.614 Exceptionally, certain treaty bodies have also considered reports of non-state entities.615 (p. 840) 22.176  The process by which state party reports are considered differs depending on the treaty body concerned. The treaties tend to provide in general terms that the reports are to be considered or studied, leaving treaty bodies considerable leeway in carrying out this task and allowing them room to develop their own procedures.616 For example, in so far as the CESCR is concerned, states parties’ reports are initially considered by the presessional Working Group, which meets prior to each of the Committee’s sessions.617 A member of the Working Group, acting as a country rapporteur, takes initial responsibility for reviewing a specific report and preparing a preliminary list of issues. The list is considered by the Working Group as a whole, amended and supplemented, and then adopted.618 The list of issues is then transmitted to the state party concerned, which is strongly urged to reply to the questions in writing in sufficient time before the session at which its report is being considered.619 22.177  By contrast, in 2007, the Committee against Torture introduced on a trial basis an optional reporting procedure.620 This simplified reporting procedure involves the preparation and adoption of lists of issues, which are sent to the state party prior to the submission of its periodic report.621 This ‘list of issues prior to reporting’ (LOIPR) enables the state party concerned to prepare a more focused report. The state party’s response to the LOIPR constitutes its periodic report.622 The approach was accepted by many states, and the Committee decided to continue with the procedure in (p. 841) respect of states that accept it.623 The Human Rights Committee, the Committee on Migrant Workers, and the Committee on the Rights of Persons with Disabilities have since introduced a similar

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procedure.624 Other Committees have done so in respect of overdue periodic reports, or on a pilot basis.625 22.178  At the meeting at which the treaty body is considering the state party report, representatives of the state introduce the report.626 What is termed a ‘constructive dialogue’ ensues, with questions being posed by members of the treaty body and answered by the state representatives.627 The constructive dialogue ‘helps treaty (p. 842) bodies understand and review the human rights situation in the State party’, ‘serves as a basis for the concluding observations’, and ‘offers an opportunity for States parties to receive expert advice on compliance with their international human rights commitments’.628 The constructive dialogue usually takes place in ‘two sessions of up to three hours and will usually be held over two consecutive working days’.629 22.179  After the meeting is concluded, the treaty body meets in private session to engage in preliminary discussion of ‘concluding observations’.630 Once controversial, the competence of the treaty bodies to adopt concluding observations is no longer open to challenge.631 Prepared initially by the country rapporteur in many cases, the concluding observations are then adopted at a later, private session of the treaty body (p. 843) before being transmitted to the state party and made public.632 The state party may, in turn, submit comments on the concluding observations.633 22.180  A follow-up procedure to monitor the implementation of concluding observations has been established by most treaty bodies.634 This is useful given the multitude (p. 844) of different ways in which states follow up findings and recommendations of the Committee, as well as instances in which findings and recommendations are not implemented.635 22.181  Committee members tend not to take part in the constructive dialogue or the formulation of concluding observations relating to their state of nationality.636 (p. 845) 22.182  Many state party reports are submitted late, sometimes extremely late.637 Ironically, given that the treaty bodies are able to consider only a few reports each session, the late submission of reports keeps the system afloat.638 22.183  On the basis of the first few years of its work, the UPR process appears to complement, rather than undermine, state party reporting to the treaty bodies.639

(p. 846) 5.2.3.2  Individual communications 22.184  With the exception of the Subcommittee on Prevention of Torture, each of the human rights treaty bodies may receive individual communications, subject to the state party concerned accepting the competence of the treaty body in this regard.640 Some treaty bodies may receive communications from groups of individuals too.641 For its part, the Committee on the Elimination of Racial Discrimination has a mandate to provide expressions of opinion and recommendations to those UN bodies that consider petitions from the inhabitants of Trust and Non-Self-Governing Territories and other territories to which General Assembly Resolution 1514 (XV) relates.642 The extent to which the communication procedure is used varies considerably, depending on the treaty body.643 22.185  The precise process pursuant to which an individual communication is considered varies depending on the treaty body concerned, though the First Optional Protocol to the ICCPR is illustrative of the general process that tends to be followed. Accordingly, it is the focus of this section. That instrument provides that a state party to the ICCPR that becomes a party to the First Optional Protocol ‘recognizes the competence of the Committee to receive and consider communications from individuals (p. 847) subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant’.644

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22.186  Communications are submitted to the Secretariat,645 which considers whether, prima facie, the admissibility criteria are met and the communication contains ‘a reasonable level of substantiation’.646 If so, the Secretariat passes on the communication, and a summary, to the Special Rapporteur for New Communications and Interim Measures; if not, the Secretariat responds directly to the author of the communication.647 The Special Rapporteur decides whether the communication is to be registered and transmitted to the state concerned for observations.648 22.187  The Pre-Sessional Working Group on Communications meets for five days prior to each session of the Committee and makes recommendations to the Committee on the communications.649 The communications and the recommendations of the Working Group are considered by the full Committee at its sessions.650 There are (p. 848) three categories of decisions: ‘Views’,651 decisions declaring a communication inadmissible, and decisions to discontinue the consideration of a communication. These are made public; all other correspondence and meetings remain confidential.652 A follow-up procedure, in the form of a Special Rapporteur for Follow-Up on Views, has been established to ascertain measures taken by states parties to conform to the Committee’s Views.653 22.188  The legal status of Views of the treaty bodies is contested. The Human Rights Committee has observed that ‘The views of the Committee under the Optional Protocol represent an authoritative determination by the organ established under the Covenant itself charged with the interpretation of that instrument.’654 However, this position is not uncontroversial, and the precise meaning of ‘authoritative’ is unclear. (p. 849) Notably, the US has indicated that the Human Rights Committee ‘does not have the authority to issue views that are “authoritative,” “determinative,” or “judicial” in character’.655 The Views of the treaty bodies are not binding.656 At the same time, (p. 850) states that have accepted the individual communication procedure cannot simply ignore the Views of the treaty body. Rather, Views are to be given great weight.657 That is to say, there is a strong presumption that they are correct,658 they must be given serious consideration,659 and there must be a sound, legal reason for disagreeing (p. 851) with them.660 Ultimately, the weight to be given to a particular View will turn on, amongst other things, the way in which it is received by states and other actors.661 Views are also used by the relevant treaty body in monitoring the compliance of states parties with the relevant convention, such as in the constructive dialogue and in concluding observations. 22.189  Prior to forwarding its Views to the state party concerned, the Committee may inform the state ‘of its Views as to whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation’.662

5.2.3.3  Inter-state communications 22.190  Some of the human rights treaties or their procedural optional protocols provide for the possibility of inter-state (p. 852) communications.663 This is true of the ICCPR, the OP-ICESCR, the ICERD, the CAT, the OP3-CRC, the ICMW, and the CPED.664 In an interstate communication, one state party alleges that another state party is not fulfilling its obligations under the relevant convention.665 Some treaties require states parties to opt in to the inter-state communication procedure;666 the ICERD does not.667 The ICCPR and ICERD also provide for the establishment of an ad hoc Conciliation Commission, which will prepare a report containing findings on facts relevant to the issues between the states parties concerned and recommendations for the amicable solution of the dispute.668 In practice, the inter-state communications procedure has never been used.669

5.2.3.4  General Comments

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22.191  The treaty bodies also issue ‘General Comments’ or, in the case of the Committee on the Elimination of Discrimination against Women and the Committee on the Elimination of Racial Discrimination, ‘General Recommendations’.670 General Comments have been described as ‘a means by (p. 853) which a UN human rights expert committee distils its considered views on an issue which arises out of the provisions of the treaty whose implementation it supervises and presents those views in the context of a formal statement of its understanding to which it attaches major importance’.671 They are prepared by the relevant treaty body, generally through an inclusive process involving states and other relevant actors.672 22.192  In the early years of the work of certain treaty bodies, there was some debate regarding the nature and substantive content of general comments, even whether a particular treaty body had the competence to issue general comments.673 The matter is now (p. 854) settled, it being accepted by states and other actors that treaty bodies have the competence to issue General Comments. (p. 855) 22.193  The CESCR has indicated that the purpose of the General Comment is to make the experience gained through the examination of States’ reports available for the benefit of all States parties in order to assist and promote their further implementation of the Covenant; to draw the attention of the States parties to insufficiencies disclosed by a large number of reports; to suggest improvements in the reporting procedures; and to stimulate the activities of the States parties, international organizations and the specialized agencies concerned in achieving progressively and effectively the full realization of the rights recognized in the Covenant.674 Through the adoption of General Comments, the treaty bodies set out their interpretation of particular provisions of the relevant convention, issues that cut across particular provisions, and address other matters related to the treaty being monitored.675 22.194  What remains uncertain is the legal status of General Comments and the weight to be afforded to such Comments. General Comments are not binding as a matter of law. At the same time, they cannot simply be ignored. They are often seen as authoritative,676 although the precise meaning of ‘authoritative’ is uncertain.677 As with Views of the treaty bodies, General Comments are to be given great weight.678 (p. 856) That is to say, there is a strong presumption that they are correct,679 they must be given serious consideration,680 and there must be a sound, legal reason for disagreeing with them.681 Ultimately, the weight to be given to a particular General Comment will turn on, amongst other things, the way in which it is received by states and other actors.682 General Comments are also used by the relevant treaty body in monitoring (p. 857) the compliance of states parties with the relevant convention, such as in the constructive dialogue and in concluding observations.

5.2.3.5  Inquiries 22.195  Certain of the human rights treaties or their procedural optional protocols provide for an inquiry procedure. This is true of the OP-ICESCR, the OP-CEDAW, the CAT, the OP3CRC, the OP-CRPD, and the CPED.683 An inquiry may take place if the relevant Committee ‘has received reliable information of grave or systematic violations by a State Party of rights established in the Convention’.684 Following receipt of the information, the Committee invites the state party the subject of the information to cooperate in the examination of the information and submit observations relating to the information. The Committee may then commence a confidential inquiry by one or more of its members, which may include a visit to the territory of the state party with that state’s consent.685 Findings of the Committee are reported to the state party, along with any comments or suggestions.686 The state party shall, in turn, submit its observations to the Committee.687 Some conventions provide that the entire procedure remains confidential, subject to the inclusion of a summary account of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

the results of the proceedings in the annual report of the Committee, following consultation with the state party concerned.688 Other conventions (p. 858) provide that the inquiry is to be carried out confidentially, but do not contain a provision on publication.689 In practice, the treaty bodies seem to publish summaries or the full reports irrespective of the objections of the state party concerned.690 The Committee may invite the state party to report on measures it has taken pursuant to the Committee’s recommendations, or to report on such measures in its next state party report.691 22.196  In the case of the CAT, the OP-CEDAW, Optional Protocol to the Convention on the Rights of the Child on a communications procedure (OP3-CRC), and the OP-CPRD, a state party may opt out of the provision enabling the inquiry procedure at the time of ratification or accession to the convention.692 With respect to the OP-ICESCR, a state party must declare that it recognizes the competence of the Committee as regards the inquiry procedure.693 It may withdraw its declaration at a later time.694 By contrast, the competence of the Committee on Enforced Disappearances to conduct an inquiry in respect of states parties is not subject to an opt-in procedure.695

5.2.3.6  Reservations to human rights treaties 22.197  By the early 1990s, the question of reservations had become a major issue under virtually all of the UN human rights treaties. While large numbers of reservations were being entered to states’ acceptance of the obligations concerned, the disquiet being expressed by other states parties did not on any regular basis take the form of formal objections thereto. Nor was it entirely clear what would have been the legal consequence of lodging such an objection as between the reserving and the objecting state.696 22.198  As of 1 November 1994, 46 of the 127 states parties to the ICCPR had, between them, entered 150 reservations. Some of these sought to subject the content of the (p. 859) obligations undertaken to domestic law.697 There was legal uncertainty as to what constitutes an acceptable or unacceptable reservation; by what means that was to be determined; whether the Human Rights Committee had any legal authority to address the problem; the relationship between the problems arising under these human rights treaties and the provisions on reservations of the Vienna Convention on the Law of Treaties (VCLT) 1969; and whether the answers were to be found in the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide Advisory Opinion that had been handed down by the ICJ in 1951.698 22.199  On 2 November 1994, the Human Rights Committee adopted General Comment No 24(52).699 This put at the centre whether a reservation was or was not compatible with the object and purpose of the Covenant, and assumed a role for the Committee in resolving that issue—both specifically and by identifying classes of reservations that were likely to be problematic by reference to this test. 22.200  Certain states700 expressed deep disquiet at General Comment No 24. While their memoranda were not identical, certain common concerns ran through them. High among them was that both the International Court and the Vienna Convention had allotted the task of assessing a reservation under the object and purpose test to states parties to the convention; and in their view, the allocation of this task to itself by the Human Rights Committee was tantamount to establishing ‘a different legal regime’.701 22.201  The General Comment makes the point that reliance on state objections to reservations in a treaty that is not about the exchange of inter-state obligations and the protection of their own interests (but about the protection of human rights) is inevitably inadequate; and that that was a reality never within the view of the Court in the Reservations case, nor of the drafters of the VCLT.702

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(p. 860) 22.202  Neither in 1951, when the Advisory Opinion was handed down, nor in 1969, when the VCLT was adopted, did there yet exist a web of multilateral human rights treaties with their own treaty bodies. So from the perspective of the Human Rights Committee, General Comment No 24 was addressing a question to which it needed to know the answer and that had not previously been put to either the ICJ or those framing the VCLT.703 It saw itself as suggesting appropriate procedures for evolving international law, but not seeking to establish a ‘different legal regime’ for human rights treaties from that existing in international law. 22.203  The problem of reservations in human rights treaties was widespread, and had attracted attention704 considerably before the Human Rights Committee issued General Comment No 24. The European Court of Human Rights had assumed the entitlement to determine if a reservation in issue was compatible with the object and purpose of the European Convention; and had also considered severability of such a clause as the preferred solution in case of a negative finding.705 (p. 861) 22.204  By Resolution 48/31 of 9 December 1993, the General Assembly had endorsed the decision of the International Law Commission (ILC) to include in its agenda the topic ‘The law and practice relating to reservations to treaties’. At its 46th session, the ILC appointed Professor Alain Pellet as Special Rapporteur for the topic, receiving and considering his first report in 1995. At its 48th session, the Special Rapporteur had produced a second report,706 to which he annexed a draft resolution, addressed to the General Assembly, on reservations to multilateral normative treaties, including human rights treaties. At its 49th session (1997), the ILC adopted preliminary conclusions on reservations to normative multilateral treaties, including human rights treaties.707 This was a somewhat novel way of working, selecting one topic amongst the many being studied by the Special Rapporteur ahead of concluding the study as a whole. 22.205  An invitation was also issued to all treaty bodies set up under such treaties to provide, in writing, their comments and observations on the conclusions the ILC had reached.708 This was to prove very fruitful709 in moving matters forward, as could already be seen in the 2007 Report of Special Rapporteur Pellet.710 This lay out in persuasive detail the complexities of ascertaining what was encompassed by the concept of the object and purpose of a treaty, but also countenanced that where it was required by its work, the Human Rights Committee would have a role to play. 22.206  The initial objections by states, and the provisional resolution of the ILC, to the issue of reservations to human rights treaties, had all emphasized the Court’s Advisory Opinion of 1951, together with the VCLT, as definitive statements of international law on the topic. 22.207  The ICJ, in its Judgment in Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), had to deal with a variety of issues relating to treaty reservations, including reservations by Rwanda to (p. 862) the Genocide Convention, ICERD, and CEDAW. It clearly did not examine these matters by reference to the inter partes criteria that had been enunciated by the Court in 1951,711 beyond briefly observing that the Democratic Republic of the Congo had at the relevant time raised the objection to Rwanda’s reservation to the ICERD. 22.208  By his tenth Report on Reservations to Treaties, the ILC Special Rapporteur had developed his views sufficiently to suggest that ‘the delicate issue of reservations of this kind to general human rights treaties should be drafted in a flexible way to allow sufficient leeway for interpretation’.712

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22.209  The Special Rapporteur’s Final Report makes mention both of the ICJ’s Congo v Rwanda Judgment and of the Joint Separate Opinion of five judges, and his conclusions contain a flexibility that augurs well for future progress in the handling of this difficult topic.713

5.2.3.7  Other functions 22.210  In addition to the principal functions considered above, treaty bodies have undertaken a variety of other activities. Some treaty bodies, such as the Committee on the Elimination of Racial Discrimination and the Committee on the Rights of the Child, have held thematic debates on particular issues,714 or days of discussion.715 The CESCR issues statements on international developments (p. 863) that have a bearing on the ICESCR.716 Members of some treaty bodies have undertaken informal visits to states,717 as well as technical assistance missions with the consent of the state party concerned.718 The Committee on the Elimination of Racial Discrimination has established an early warning and urgent action procedure, in an attempt to prevent serious violations of the Convention.719 (p. 864) 22.211  The treaty bodies also meet with relevant actors.720 For example, representatives of the ILO, UNESCO, and the United Nations High Commissioner for Refugees (UNHCR) are invited to attend sessions of the Committee on the Elimination of Racial Discrimination and submit documentation, but not to participate in proceedings.721 The CESCR engages with actors relevant to its work, such as the FAO and UNDP.722 The Committee against Torture has had interaction with a number of actors that undertake activities relating to the prevention of torture, such as the Special Rapporteur and the European Committee for the Prevention of Torture.723 The Committee on the Rights of the Child has met with, amongst others, the ILO, WHO, UNESCO, and UNICEF,724 as well as with ‘young persons from the United Kingdom to discuss the situation of children’s rights in their country’ in advance of considering the periodic report of the UK.725 For its part, the Migrant Workers Committee has met with, inter alia, relevant UN special rapporteurs, as well as representatives of the ILO, the International Organization for Migration (IOM), UNHCR, and UNICEF.726 The CRPD itself provides for the involvement of the specialized agencies and UN organs in its work.727 22.212  Certain treaties contain novel features. The OP-CAT seeks ‘to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment’.728 Accordingly, the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment visits places under the jurisdiction and control of a state party where persons are or may be deprived of their liberty.729 The Subcommittee also engages (p. 865) with states parties in relation to their national preventive mechanisms, and undertakes advisory visits to national preventive mechanisms.730 It further cooperates with other bodies engaged in the task of strengthening protections against torture.731 The Subcommittee selects those places it wishes to visit, initially by lot.732 Visits are undertaken by at least two members of the Subcommittee, accompanied by experts in the area.733 A follow-up visit may also take place.734 The Subcommittee provides the state party with its recommendations and observations in confidence.735 A public report on the activities of the Subcommittee is presented annually to the Committee against Torture. 22.213  The CPED also contains certain novel features. If the Committee on Enforced Disappearances

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receives information which appears to it to contain well-founded indications that enforced disappearance is being practised on a widespread or systematic basis in the (p. 866) territory under the jurisdiction of a State Party, it may, after seeking from the State Party concerned all relevant information on the situation, urgently bring the matter to the attention of the General Assembly of the United Nations, through the Secretary-General of the United Nations.736 The Committee also has the competence to receive an urgent ‘request that a disappeared person should be sought and found’.737 Upon receipt of such a request, and finding it admissible, the Committee will request the state party concerned to provide it with information regarding the persons sought.738 In light of the information provided, the Committee ‘may transmit recommendations to the State Party, including a request that the State Party should take all the necessary measures, including interim measures, to locate and protect the person concerned’, and to inform the Committee of the measures taken.739 22.214  The treaty bodies report on their activities to the General Assembly.740 Certain treaty bodies also report to other entities.741

5.2.4  Treaty body reform 22.215  The human rights treaty bodies were not established as a ‘system’. Rather, they emerged sporadically as the core human rights treaties were adopted, and without thought as to the design of a system. The functions of the treaty bodies were expanded with the adoption of the various optional protocols to the treaties. With the growth in the number of treaty bodies and their functions, as well as the growth in the number of states parties to the treaties, various proposals for the reform and strengthening of the treaty bodies were suggested.

5.2.4.1  The ‘Alston proposals’ 22.216  In 1988, the General Assembly adopted Resolution 43/115, in which the UN Secretary-General was requested to ‘consider entrusting…an (p. 867) independent expert with the task of preparing a study on possible long-term approaches to the supervision of new instruments on human rights’.742 In his final report, the Independent Expert focused attention, and made recommendations, on a number of areas, including universal ratification;743 reporting by states parties;744 accessibility of documentation of the human rights treaty bodies;745 and consolidation of the human rights treaty body system.746 Following the publication of the final report of the Independent Expert, the SecretaryGeneral carried out consultations on the recommendations.747 Comments were received by the Secretary-General from a variety of actors, and several reports of the Secretary-General were presented to the General Assembly reflecting these consultations.748 The persons chairing the (p. 868) human rights bodies also reported on the ‘Alston proposals’.749 Many of the Independent Expert’s recommendations were subsequently implemented.

5.2.4.2  The ‘Single Report’ proposal 22.217  In 2002, in his report Strengthening of the United Nations: an agenda for further change, the Secretary-General suggested that the treaty bodies ‘should craft a more coordinated approach to their activities and standardize their varied reporting’, and that ‘each State should be allowed to produce a single report summarizing its adherence to the full range of international human rights treaties to which it is a party’.750 The High Commissioner for Human Rights was requested to consult on the proposals.751 The consultations revealed that there was considerable opposition from the human rights treaty bodies to the idea of a single, consolidated report.752 For example, the Chairperson of the CESCR expressed concern that a single report ‘would reduce the current prominence States parties give to economic, social and cultural rights’.753 A report of a meeting of experts, which was organized by the Government of Liechtenstein and the OHCHR, noted that the participants rejected ‘the notion of a single report summarizing a State (p. 869)

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party’s implementation of the full range of human rights treaty provisions to which it is a party’.754

5.2.4.3  The unified standing treaty body 22.218  In 2005, in his report, In larger freedom: towards development, security and human rights for all, the Secretary-General noted that ‘The treaty body system remains little known; is compromised by the failure of many States to report on time if at all, as well as the duplication of reporting requirements; and is weakened further by poor implementation of recommendations.’755 The report recommended that ‘Harmonized guidelines on reporting to all treaty bodies should be finalized and implemented so that these bodies can function as a unified system.’756 22.219  As requested by the Secretary-General, the High Commissioner for Human Rights, Louise Arbour, prepared a Plan of Action to present a strategic vision for the future direction of the OHCHR.757 In the Plan of Action, the High Commissioner drew on the Secretary-General’s call in 2002 ‘for harmonized reporting requirements and the possibility of submitting a single report’, and suggested that ‘the treaty bodies…[should] begin to function as a unified system…[and that] some means must be found to consolidate the work of the seven treaty bodies and to create a unified standing treaty body’.758 22.220  Following the High Commissioner’s Plan of Action, a concept paper on a unified standing treaty body was prepared.759 The paper provided a detailed assessment of the ways in which such a body could address the challenges faced by states parties and the human rights treaty bodies. The paper indicated, inter alia, that a unified standing treaty body ‘would provide a framework for a comprehensive, cross-cutting and holistic approach to implementation of the treaties’.760 It also contained a (p. 870) number of models for consideration,761 and noted a number of possibilities in terms of reporting including, inter alia, continuing with the current system of reporting under each of the applicable human rights treaties, or requiring states parties to submit ‘an expanded core document and treaty-specific reports’.762 22.221  The concept paper noted that ‘The creation of a unified standing treaty body raises significant legal issues.’763 The legal complexities were explored in more detail in a preliminary non-paper by the Secretariat,764 and discussed further in a summary of a brainstorming meeting on reform of the human rights treaty body system.765 At that meeting, which members of the human rights treaty bodies, representatives of states, UN entities, national human rights institutions, and NGOs attended, the concept of a unified standing treaty body ‘found generally little support’.766 However, participants acknowledged that the concept paper ‘contained many elements that could greatly enhance the quality of the discussion on treaty body reform’.767

5.2.4.4  Treaty body-strengthening process 22.222  In 2009, the then High Commissioner for Human Rights, Navanethem Pillay, initiated a review of the human rights treaty body system with a view to strengthening and enhancing its effectiveness. This review resulted in a comprehensive report in June 2012.768 Building on this work, UN member states took over the reform efforts of the OHCHR by launching (p. 871) an open-ended intergovernmental process in February 2012.769 The process culminated in a report on measures and proposals for reform.770 22.223  In 2014, the General Assembly adopted Resolution 68/268, which contained a number of measures that were proposed in the report, the formal implementation of which began on 1 January 2015.771

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22.224  The major initiatives for strengthening and enhancing the effective functioning of the human rights treaty body system included: i.  a capacity-building programme to assist countries in need of technical assistance for the implementation of their treaty obligations; 772 ii.  increasing the treaty body meeting time from approximately 75 weeks to 97 weeks per year, allowing a greater number of state party reports and individual communications to be considered; 773 (p. 872) iii.  encouraging and empowering treaty bodies to align their working methods to make them more efficient and accessible, in addition to harmonizing procedures across the various bodies; 774 iv.  encouraging states parties to ensure the composition of the treaty bodies reflects a balance in terms of geographical distribution and gender representation, different forms of civilization, and principal legal systems; 775 and v.  approving more modernized communication through video-conferencing equipment. 776 22.225  In 2020, the General Assembly will review the effectiveness of the measures adopted from General Assembly Resolution 68/268 (2014) to ensure their sustainability and, ‘if appropriate, decide on further action to strengthen and enhance the effective functioning of the human rights treaty body system’.777

(p. 873) 6.  Human Rights Conferences Final Act of the International Conference on Human Rights, Teheran, 22 April to 13 May 1968, UN Doc A/CONF.32/41; Report of the World Conference on Human Rights: Report of the Secretary-General, UN Doc A/CONF.157/24 (1993); Boerefijn, ‘Vienna World Conference on Human Rights (1983)’ in MPEPIL (online); Boerefijn and Davidse, ‘Every Cloud…? The World Conference on Human Rights and Supervision of Implementation of Human Rights’ (1993) 11 NQHR 457; Boyle, ‘Stock-Taking on Human Rights: The World Conference on Human Rights, Vienna 1993’ in Politics and Human Rights (ed Beetham, 1995); Marks, ‘Nightmare and Noble Dream: The 1993 World Conference on Human Rights’ (1994) 53 CLJ 54. 22.226  There have been two principal conferences on human rights: the International Conference on Human Rights, which was held in Teheran in 1968; and the World Conference on Human Rights, which was held in Vienna in 1993. Conferences on specific human rights and human rights-related issues have also taken place.778 22.227  The Teheran Conference took place 20 years after the adoption of the UDHR.779 It was held in order to review the progress that had been made since the adoption of the Universal Declaration; to evaluate the methods used by the UN in the field of human rights, especially in respect of the elimination of racial discrimination and the policy of apartheid; and to draw up a programme of measures to be taken.780 Some 84 governments were represented at the Conference, together with representatives of UN bodies and specialized agencies, regional inter-governmental organizations, and NGOs.781 The Conference adopted the Proclamation of Teheran, together with a number of resolutions.782 (p. 874) 22.228  The Vienna Conference took place in 1993.783 The objectives of the Conference were to review the progress made since the adoption of the UDHR, to identify obstacles to further progress and ways to overcome them; to examine the relationship between development and human rights; to examine ways in which to improve the implementation of human rights standards and instruments; to evaluate the effectiveness of UN human rights methods and mechanisms, and to formulate recommendations for improving their effectiveness; and to make recommendations to ensure the necessary From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

financial and other resources of UN activities in the field of human rights.784 Some 171 governments were represented at the Conference, together with representatives of UN bodies and specialized agencies, inter-governmental organizations, NGOs, national institutions and ombudsmen, and national liberation movements, as well as certain eminent persons.785 The Conference adopted the Vienna Declaration and Programme of Action,786 together with a Decision and two special declarations.787 (p. 875) 22.229  The Vienna Declaration and Programme of Action are particularly notable for a number of reasons. In the Declaration and Programme of Action, the Conference stressed that ‘[a]ll human rights are universal, indivisible and interdependent and interrelated’,788 a statement that has since been repeated.789 The Declaration and Programme of Action contain a number of provisions on women’s rights,790 which historically were marginalized. The Conference proposed, or supported, the drafting of instruments on women and indigenous peoples, as well as optional protocols to the ICESCR, all of which have since been adopted.791 Among the most important developments for the UN human rights architecture, was the creation of the OHCHR following the Conference.792 There remains an item on the agenda of (p. 876) the HRC on Follow-up and Implementation of the Vienna Declaration and Programme of Action.793 22.230  As at September 2016, it seemed unlikely that further major world conferences on human rights, similar to the Teheran and Vienna Conferences, would be held.

(p. 877) 7.  Geneva–New York Relations 22.231  United Nations entities that work on human rights issues are located primarily in Geneva. By contrast, UN entities that work on peace and security matters are located primarily in New York.794 Likewise, representatives of states to the UN who focus on human rights issues tend to be located in missions in Geneva, while those who focus on peace and security matters tend to be located in missions in New York. This physical and cultural distance has led to a widely acknowledged separation in practice between the UN’s work on human rights and its work on peace and security. It has also contributed to the difficulty in mainstreaming human rights into the work of the UN.795 22.232  Steps have been taken to address this separation. The OHCHR office in New York has been strengthened.796 There has been recognition of the role of human rights in (p. 878) issues such as peace missions, and sanctions.797 And Secretary-General Ban Ki-Moon established the ‘Human Rights Up Front Initiative’.798 However, difficulties remain, such as the meetings of treaty bodies being held in Geneva rather than also in New York, owing to financial difficulties.799 The physical distance between the two locations does not assist matters.

Footnotes: 1

  On the human rights provisions of the Charter, see Goodrich, Hambro, and Simons, Charter of the United Nations: Commentary and Documents (1969), 29–36, 370–82; Bentwich and Martin, A Commentary on the Charter of the United Nations (1950), 8–9, 116–18; Simma et al (eds), The Charter of the United Nations: A Commentary (2012), 107– 20, 1565–1602; Lauterpacht, International Law and Human Rights (1950); Hudson, ‘Integrity of International Instruments’ (1948) 42 AJIL 107; Schwelb, ‘The International Court of Justice and the Human Rights Clauses of the Charter’ (1972) 66 AJIL 337; Jhabvala, ‘The Drafting of the Human Rights Provisions of the UN Charter’ (1997) 44 Neth IL Rev 1; Meron, Human Rights Law-Making in the United Nations (1986).

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2

  UN Charter, Art 1(3). See also Art 55, which provides that, ‘With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:…(c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.’ 3

  UN Charter, Art 13(1)(b).

4

  UN Charter, Arts 62(2) and 68.

5

  UN Charter, Art 76(c).

6

  See section 2.3, ‘The Security Council’.

7

  This is not limited to the work of the UN in human rights; it is true more broadly. See ‘Delivering as One: Report of the High-Level Panel on United Nations System-Wide Coherence in the areas of development, humanitarian assistance and the environment’, UN Doc A/61/583, 20 November 2006. 8

  Recommendations are usually drafted by a functional commission of ECOSOC before being considered by its Social Committee, the latter comprising representatives of all members of ECOSOC. The reports of the Social Committee, including any draft resolutions, are then considered by the Council sitting in plenary. The UN Charter does not specify the identity of the recipient of the recommendations. In practice, recommendations have been made to a wide variety of UN organs and specialized agencies, other international organizations, non-governmental organizations (NGOs), and individual states. However, the primary recipient of recommendations is the General Assembly. The power to recommend has been interpreted in practice as including the power to ‘initiate studies and reports’, the phrase used in Art 62(1) of the Charter. This power is a necessary implication of the power laid out in Art 62(2). See Lagoni and Landwehr, ‘Article 62’ in The Charter of the United Nations: A Commentary (vol II, eds Simma et al, 2002), 993. Pursuant to this power, ECOSOC has initiated numerous studies and reports, including on issues such as slavery and servitude, forced labour, the status of women, the rights of women, the rights of the child, the protection of minorities, the rights of indigenous peoples, the prevention of discrimination, advisory services in the field of human rights, and a UN High Commissioner for Human Rights. ECOSOC occasionally appoints ad hoc committees or rapporteurs (not to be confused with Special Rapporteurs of the Human Rights Council) to draw up these studies and reports. As the UN RP (1945–54) vol III, p 254, notes, ‘[b]y resolution 1/5, for instance, the Council requested the Commission on Human Rights to make reports concerning an international bill of rights and international declarations on civil liberties and similar matters; and by resolution 2/11 it requested the Commission on the Status of Women to make reports on promoting women’s rights in political, economic, social and educational fields.…By resolution 238 (IX) the Council instructed the Secretary-General to appoint an ad hoc committee to survey the field of slavery and other institutions resembling slavery.’ On Art 62(2) of the Charter, see Bentwich and Martin, n 1, 129–31; Goodrich, Hambro, and Simons, n 1, 412–19; Lagoni and Landwehr, above, 991–3. The recommendations made pursuant to Art 62(2) are documented in UN RP (1945–54) vol III, pp 249–72; Supp no 1 (1954–5), vol II, pp 77–82; Supp no 2 (1955–9), vol III, pp 93–7; and subsequent Supps. 9

  UN Charter, Art 62(3) and (4).

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Conventions have been drafted at the request of the General Assembly, at the recommendation of a subsidiary organ of ECOSOC, or at the initiative of ECOSOC itself. They have been drafted by ECOSOC itself, by one of its commissions or ad hoc committees, or, at its request, by the Secretary-General. Conventions drafted in the field of human rights include those on the subjects of trafficking, slavery, genocide, torture, civil and political rights, economic, social, and cultural rights, the status of women, the rights of the child, the status of refugees, and stateless persons. A large part of the early work of ECOSOC was devoted to the two human rights covenants. For a full list of draft conventions at the date of publication and the bodies to which they were submitted, see UN RP (1945–54) vol III, pp 290–2, Annexes I–III. Many conferences concerning human rights issues, such as the 1968 International Conference on Human Rights, on which see section 6, ‘Human Rights Conferences’, were convened by the General Assembly. Others were convened by ECOSOC, sometimes to consider a draft convention. This was true of the draft Protocol relating to the Status of Stateless Persons and the draft Supplementary Convention on Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. For a list of international conferences called by ECOSOC at the time of publication, see UN RP (1945–54) vol III, pp 319–20, Annexes III–IV. On Art 62(3) and (4), see Bentwich and Martin, n 1, 129–31; Goodrich, Hambro and Simons, n 1, 412–9; Lagoni and Landwehr, n 8, 994–7; UN RP (1945–54) vol III, pp 279–92 and 293– 320, and supplements thereto. 10

  UN Charter, Art 63(2). UN specialized agencies, such as the International Labour Organization (ILO), the Food and Agriculture Organization (FAO), the United Nations Educational, Scientific and Cultural Organization (UNESCO), and the World Health Organization (WHO), work closely with ECOSOC. See further ch 7, ‘United Nations Specialized Agencies’. ECOSOC has also authorized the provision of advisory services in the field of human rights, including convening regional seminars, providing for technical assistance and training courses, and awarding fellowships. For details, see the United Nations Year Books. 11

  UN Charter, Art 71. See further ch 5, ‘The Economic and Social Council’, section 3.3.3, ‘Non-governmental organizations’. 12

  For challenges to the powers of ECOSOC through the invocation of Art 2(7) of the Charter, see UN RP (1945–54) vol III, pp 271–2; Supp no 1 (1954–5), vol II, p 82; Supp no 2 (1955–9), vol III, p 97; Supp no 3 (1959–66), vol II, p 394; Supp No 5 (1970–8), vol III, pp 154–5; Supp no 6 (1979–84), vol IV, p 155. See further ch 5, ‘The Economic and Social Council’, section 3.3.3, ‘Non-governmental organizations’. 13

  ECOSOC originally showed reluctance to consider such communications, taking the view that any such consideration would interfere with state sovereignty. See UN RP (1945–54) vol III, p 266. It later affirmed the view of the Commission on Human Rights that the Commission ‘has no power to take any action in regard to any complaints concerning human rights’: see ECOSOC Res 75(V), as amended by ECOSOC Res 116A (VI), 192A (VIII), and 275B (X). See also ECOSOC Res 728F (XXVIII). For alternative proposals, see 1947–48 UNYB 578–9. A different procedure applied to communications involving violations of trade union rights and allegations of forced labour. See ECOSOC Res 277(X), 474A(XV), and 607(XXI). ECOSOC subsequently changed its position, authorizing the Commission on Human Rights to ‘examine information relevant to gross violations of human rights and fundamental freedoms, as exemplified by the policy of apartheid’ (ECOSOC Res 1235 (XLII), on which see 1967 UNYB 507–9) and to examine in private communications involving ‘situations which appear to reveal a consistent pattern of gross and reliably attested violations of human rights’ (ECOSOC Res 1503 (XLVII)). Over the years, it has become accepted that From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

states cannot rely on notions of sovereignty to prevent human rights violations being examined. For further details on the Res 1503 procedure, see section 3.4.3, ‘Complaints procedure’. 14

  Shraga, ‘The Security Council and Human Rights—from Discretion to Promote to Obligation to Protect’ in Securing Human Rights? Achievements and Challenges of the UN Security Council (ed Fassbender, 2011), 9–10, has observed: ‘While, in theory, ECOSOC was to have a key role in the promotion, standard-setting, and coordination of human rights activities, in reality, it made little contribution in any of these respects. ECOSOC was an organ in decline almost from the start, and over time it found itself “squeezed” between a prominent General Assembly and a very active Commission on Human Rights, its subsidiary organ.’ 15

  See section 3.1, ‘Establishment’.

16

  The World Summit Outcome recognized ‘the need for a more effective Economic and Social Council as a principal body for coordination, policy review, policy dialogue and recommendations on issues of economic and social development, as well as for implementation of the international development goals agreed at the major United Nations conferences and summits, including the Millennium Development Goals’: GA Res 60/1 (2005), Annex, para 155. See also GA Res 61/16 (2007). Older studies carried out for this purpose include Secretary-General’s Report on the Council, UN Doc A/3109; Report of the Secretary-General on the Work of the Organization, UN Doc A/42/1; Report of the Special Commission of the Economic and Social Council on the In-Depth Study of the United Nations Intergovernmental Structure and Functions in the Economic and Social Fields, UN Doc E/1988/75. See also GA Res 32/197 (1977); 45/177 (1990); 45/264 (1991), Annex; 50/227 (1996); 57/270B (2003). See further Lagoni and Landwehr, n 8, 997–1001; O’Donovan, ‘The Economic and Social Council’ in The United Nations and Human Rights (ed Alston, 1992), 121–5. 17

  See ch 5, ‘The Economic and Social Council’, section 2.3, ‘Subsidiary organs’.

18

  UN Charter, Art 68. See Bentwich and Martin, n 1, 136–7; Goodrich, Hambro, and Simons, n 1, 435–41; Riedel, ‘Article 68’ in Simma et al (eds), n 8, 1027–57. 19

  Prior to 1999, the Sub-Commission was called the Sub-Commission on Prevention of Discrimination and Protection of Minorities. Other subsidiary organs in the field of human rights, which have since concluded their work, include the ad hoc Committee on Slavery; the ad hoc Committee on the Drafting of the Genocide Convention; the ad hoc Committee on Statelessness; and the ad hoc Committee on Forced Labour. 20

  The Committee on Economic, Social and Cultural Rights is discussed in section 5.2, ‘Human rights treaty bodies’, in the context of human rights treaty bodies. 21

  The Commission was initially a sub-commission of the Commission on Human Rights. It was upgraded to a full Commission of ECOSOC in 1947. On the work of the SubCommission, see 1946–47 United Nations Yearbook 528–9. 22

  The Commission met annually from 1947 to 1970 and biennially, against the wishes of the Commission itself (1970 UNYB 549), from 1971 through to 1989. Sessions last some ten working days. The Commission has met in special session in preparation for international conferences on the subject of the advancement of women. On the international conferences, see ‘Report of the World Conference of the International Women’s Year’, UN Doc E/CONF.66/34; ‘Report of the World Conference of the UN Decade for Women: Equality, Development and Peace’, UN Doc A/CONF.94/35; ‘Report of the World Conference to Review and Appraise the Achievements of the UN Decade for Women: Equality, Development and Peace’, UN Doc A/ From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

CONF.116/28/Rev.1; ‘Report of the Fourth World Conference on Women’, UN Doc A/CONF. 177/20. The Commission met in Vienna between 1980 and 1993. Prior to that time, the location of its meetings varied. 23

  ECOSOC Res 1989/45. For the previous composition, see ECOSOC Res 414 (XIII), 845 (XXXII), 1147 (XLI). There are 13 members from African states; 11 from Asian states; 9 from Latin American and Caribbean states; 8 from Western European and other states; and 4 from Eastern European states. Members serve for a term of 4 years. 24

  See Commission Res 15 (XXIV) and Res 2 (XXVII).

25

  Support was previously provided by the Division for the Advancement of Women.

26

  ECOSOC Res 11(II) and 48 (IV).

The Commission drafted important instruments on the rights of women, including the Declaration on the Elimination of All Forms of Discrimination against Women, which was subsequently adopted by the General Assembly in GA Res 2263 (XXII) (1967); the Convention on the Political Rights of Women (GA Res 640 (VII) (1952)); and the Declaration on the Protection of Women and Children in Emergency and Armed Conflict (GA Res 3318 (XXIX) (1974)). One of its most important contributions was the drafting of the Convention on the Elimination of All Forms of Discrimination against Women (GA Res 34/180 (1979)). On the drafting of these instruments, see Reanda, ‘The Commission on the Status of Women’ in Alston (ed), n 16, 282–9; Galey, ‘Promoting Nondiscrimination against Women: The UN Commission on the Status of Women’ (1979) 23 International Studies Quarterly 273. The Commission has also drafted reports, memoranda, and questionnaires, usually prepared by the Secretary-General, on such topics as discrimination based on sex in the field of political rights; the status of women in public law; the status of women in private law; property rights of married women; the participation of women in the work of the UN; the application of penal law to women; and equal pay for equal work. For details of the reports, see the various United Nations Year Books. The Commission has convened seminars on subjects within the human rights of women. See, eg, 1966 UNYB 464–5; 1967 UNYB 516; 1968 UNYB 573. The initiative for an International Women’s Year, subsequently approved by the General Assembly, also came from the Commission. See ECOSOC Res 1681(LII); and 1972 UNYB 446. 27

  ECOSOC Res 1987/22. Since 1987, the Commission considers a priority theme at its annual session, and since 2006 has added a review theme to evaluate the implementation of conclusions from the previous annual session. The Commission’s multi-year programme of work adopted in 2013 identified, inter alia, challenges affecting the achievement of gender equality and the empowerment of women, as well as opportunities for strengthening gender equality and the empowerment of women in the post-2015 development agenda through the integration of a gender perspective, as a theme for 2015. The priority theme for 2016 was women’s empowerment and its link to sustainable development, while the review theme was the elimination and prevention of all forms of violence against women and girls. See ECOSOC Res 2013/18, para 3. 28

  In addition, the Commission is to identify emerging issues impacting upon equality between men and women. See ECOSOC Res 1996/6. In 2015, the Commission’s priority theme was to review and appraise ‘the implementation of the Beijing Declaration and Platform for Action, and the outcomes of the twenty-third special session of the General Assembly, including current challenges that affect the implementation of the Platform for Action and the achievement of gender equality and the empowerment of women, as well as opportunities for strengthening gender equality and the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

empowerment of women in the post-2015 development agenda through the integration of a gender perspective’: ECOSOC Res 2013/18, para 3. 29

  Pursuant to ECOSOC Res 1983/27, as amended by ECOSOC Res 1992/19, 1993/11, 2009/16, and ECOSOC Decision 2002/235, the Commission may consider communications relating to the status of women. Communications are received by the Human Rights Section of UN Women. They are transmitted to governments, through the Secretary-General, with an invitation to reply to the communication. UN Women then compiles a confidential report, consisting of summaries of the communications together with any replies received from governments. A Working Group on Communications of the Commission on the Status of Women considers the report and prepares a report to the Commission on the Status of Women, ‘with a view to bringing to the attention of the Commission those communications, including the replies of Governments, which appear to reveal a consistent pattern of reliably attested injustice and discriminatory practices against women’. The report also ‘indicate[s] the categories in which communications are most frequently submitted’. The report of the Working Group, together with the list of communications and replies, is circulated to members of the Commission for consideration. The Commission considers the report and makes recommendations to ECOSOC, which then ‘decide[s] what action may appropriately be taken on the emerging trends and patterns of communications’. The process is confidential, ‘until such time as the Commission may decide to make recommendations to the Economic and Social Council’: ECOSOC Res 1983/27. The report of the Working Group is usually incorporated in the report of the Commission on its relevant session. See, eg, Commission on the Status of Women: Report on the sixtieth session (20 March 2015 and 14–24 March 2016), UN Doc E/2016/27 (2016), para 124. Trends and patterns identified in recent years include the arbitrary arrest of women, forced disappearances of women, the ‘discriminatory application of punishments in law based on sex’, ‘stereotypical attitudes towards the role and responsibilities of women’, domestic violence, forced marriage, marital rape, virginity testing, ‘sexual harassment of women in the workplace’, and ‘unfair employment practices based on sex, including unequal pay’. See at http://www.unwomen.org/en/csw/communications-procedure. See also, for 2015, Commission on the Status of Women: Report on the sixtieth session (20 March 2015 and 14–24 March 2016), UN Doc E/2016/27 (2016), para 124. On the communication procedure, see Kaschitz, ‘The Commission on the Status of Women with Particular Reference to its Work on Communications’ (1988) 6 NQHR 22; http:// www.unwomen.org/en/csw/communications-procedure. Discussions on reforming the procedure have taken place: UN Doc E/CN.6/1991/10; Report of the Commission on the Status of Women, UN Doc E/1991/28. The Commission had previously drawn up a system of reporting relating to the implementation of the Declaration on the Elimination of Discrimination against Women, by which the Commission would consider a report of the UN Secretary-General that was comprised, in turn, of states reports and the reports of UN specialized agencies and NGOs. See ECOSOC Res 1325(XLIV). This was subsequently merged with the reporting procedures associated with the World Plan of Action for the Implementation of the Objectives of the International Women’s Year and the International Development Strategy for the Second UN Development Decade. See ECOSOC Res 1978/28. 30

  On the phases of the Commission, see Reanda, n 26, 275–300; United Nations, The United Nations and the Advancement of Women, 1945–1996 (1996). The various United Nations Year Books also document these shifts.

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31

  It was proposed by the 1993 World Conference on Human Rights. The Vienna Declaration and Programme for Action provides that ‘The World Conference on Human Rights recommends that the General Assembly proclaim an international decade of the world’s indigenous people, to begin from January 1994, including action-orientated programmes, to be decided upon in partnership with indigenous people. An appropriate voluntary trust fund should be set up for this purpose. In the framework of such a decade, the establishment of a permanent forum for indigenous people in the United Nations system should be considered.’ UN Doc A/CONF.157/24, (Part I), Section II.B, para 32. The General Assembly, in GA Res 52/108 (1998), reaffirmed the objectives of the decade, including consideration of the establishment of a permanent forum for indigenous people. The Commission on Human Rights established an ad hoc working group ‘to elaborate and consider further proposals for the possible establishment of a permanent forum for indigenous people in the United Nations system’. Commission on Human Rights Res 1998/20 and 1999/52. The name of the Permanent Forum avoided the issue as to whether to use the term ‘indigenous people’ or ‘indigenous peoples’. On the establishment of the Permanent Forum, see Carey and Wiessner, ‘A New United Nations Subsidiary Organ: The Permanent Forum on Indigenous Issues’, ASIL Insights, vol 6, issue 8, 9 April 2001; Stamatopoulou, ‘United Nations Permanent Forum on Indigenous Issues: A Multifaceted Approach to Human Rights Monitoring’ in International Human Rights Monitoring Mechanisms: Essays in Honour of Jacob Th Möller (eds Alfredsson et al, 2009), 355. 32

  ECOSOC Res 2000/22.

33

  Appointment by the President of ECOSOC follows ‘formal consultation with the Bureau and the regional groups through their coordinators, on the basis of broad consultations with indigenous organizations, taking into account the diversity and geographical distribution of the indigenous people of the world as well as the principles of transparency, representativity and equal opportunity for all indigenous people, including internal processes, when appropriate, and local indigenous consultation processes’ (ibid). 34

  ibid.

35

  Pursuant to ECOSOC Res 2000/22, ‘States, United Nations bodies and organs, intergovernmental organizations and non-governmental organizations in consultative status with the Council may participate as observers; organizations of indigenous people may equally participate as observers in accordance with the procedures which have been applied in the Working Group on Indigenous Populations of the Subcommission on the Promotion and Protection of Human Rights.’ For the list of attendees at the 13th session of the Permanent Forum, see UN Doc E/CN. 19/2014/INF/1 (2014). 36

  GA Res 57/191 (2003).

37

  ECOSOC Res 2000/22. The Resolution continues: [I]n so doing the Permanent Forum shall: (a)  Provide expert advice and recommendations on indigenous issues to the Council, as well as to programmes, funds and agencies of the United Nations, through the Council;

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(b)  Raise awareness and promote the integration and coordination of activities relating to indigenous issues within the United Nations system; (c)  Prepare and disseminate information on indigenous issues… The Permanent Forum has made a number of recommendations on indigenous issues. See https://www.un.org/development/desa/indigenouspeoples/unpfii-sessions-2.html. Members of the Permanent Forum have produced a number of studies and reports. See https:// www.un.org/development/desa/indigenouspeoples/unpfii-sessions-2/reports-by-members-ofthe-permanent-forum.html. 38

  For the work of the Permanent Forum on these issues, see https://www.un.org/ development/desa/indigenouspeoples/mandated-areas1.html. See generally Stamatopoulou, n 31, 355. 39

  ECOSOC Res 2000/22. The Resolution provides that the annual session is to be held ‘at the United Nations Office at Geneva or at United Nations Headquarters or at such other place as the Permanent Forum may decide in accordance with existing financial rules and regulations of the United Nations’. 40

  For example, the focus of the 13th session in 2014 was ‘Principles of good governance consistent with the United Nations Declaration on the Rights of Indigenous Peoples: articles 3 to 6 and 46’. See Permanent Forum on Indigenous Issues: Report on the thirteenth session (12–23 May 2014), UN Doc E/2014/43-E/C.19/2014/11. The 14th session in 2015 was a review year. See Permanent Forum on Indigenous Issues: Report on the fourteenth session (20 April–1 May 2015), UN Doc E/2015/43-E/C.19/2015/10. 41

  This includes the Universal Declaration of Human Rights (UDHR), GA Res 217 (III)A (1948); Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res 1514 (XV) (1960); Declaration on the Protection of All Persons from being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res 3452 (XXX) (1975); Declaration on the Rights of Disabled Persons, GA Res 3447 (XXX) (1975); Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religious Belief, GA Res 36/55 (1981); Declaration on the Human Rights of Individuals who are not Nationals of the Country in which they Live, GA Res 40/144 (1985); Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, GA Res 43/173 (1988); Basic Principles for the Treatment of Prisoners, GA Res 45/111 (1990); United Nations Principles for Older Persons, GA Res 46/91 (1991); Declaration on the Protection of All Persons from Enforced Disappearances, GA Res 47/133 (1992); Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, GA Res 47/135 (1992); Declaration on the Elimination of Violence against Women, GA Res 48/104 (1993); Principles relating to the Status of National Institutions, GA Res 48/134 (1993); Declaration on the Rights of Indigenous Peoples, GA Res 61/295 (2007). See the list of international instruments at http://www2.ohchr.org/ english/law/index.htm#instruments. On standard setting and the General Assembly, see GA Res 41/120 (1986); Alston, ‘Conjuring Up New Human Rights: A Proposal for Quality Control’ (1984) 78 AJIL 607; Meron, ‘Reform of Lawmaking in the United Nations: The Human Rights Instance’ (1985) 79 AJIL 664; Meron, n 1; Farer, ‘The United Nations and Human Rights: More than a Whimper Less than a Roar’ (1987) 9 HRQ 550, 562; Ramcharan, ‘Standard-Setting: Future Perspectives’ in Human Rights: Thirty Years after the Universal Declaration (ed Ramcharan, 1979), 93.

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42

  The General Assembly adopted, and opened for signature and ratification, such instruments as the Convention on the Prevention and Punishment of the Crime of Genocide, GA Res 260A (III) (1948); the International Convention on the Elimination of All Forms of Racial Discrimination, GA Res 2106 (XX) (1965); International Covenant on Economic, Social and Cultural Rights, GA Res 2200A (XXI) (1966); the International Covenant on Civil and Political Rights, GA Res 2200A (XXI) (1966); the International Convention on the Suppression and Punishment of the Crime of Apartheid, GA Res 3068 (XXVIII) (1973); the Convention on the Elimination of all Forms of Discrimination against Women, GA Res 34/180 (1979); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res 39/46 (1984); the Convention on the Rights of the Child, GA Res 44/25 (1989); the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, GA Res 45/158 (1990); the Convention on the Rights of Persons with Disabilities, GA Res 61/106 (2006); the International Convention for the Protection of All Persons from Enforced Disappearance, GA Res 61/177 (2006). 43

  On the conclusion of human rights treaties, and the role of the General Assembly therein, see section 5, ‘Human rights treaties and treaty bodies’. 44

  The General Assembly occasionally requested the then Commission on Human Rights to include provisions on particular topics in instruments it was drafting (eg GA Res 422(V) (1950), recommended to ECOSOC ‘that it should instruct the Commission on Human Rights’ to include provisions on particular topics (eg GA Res 546(VI) (1951)), and requested the Commission on Human Rights to consider particular issues (eg GA Res 35/176 (1980)). The Assembly also requested the Commission to draft two Covenants, one on economic, social, and cultural rights, and one on civil and political rights (GA Res 543(VI) (1951)). See generally Quinn, ‘The General Assembly into the 1990s’ in Alston (ed), n 16, 65–8, 74. The particular role played by the General Assembly in this regard depends, inter alia, on the political content of the instrument, at least as is viewed by states. See Meron, ‘Reform of Lawmaking in the United Nations: The Human Rights Instance’, n 41, 671. 45

  For example, during the 69th session of the General Assembly, the General Assembly adopted resolutions on the situation of human rights in Myanmar (GA Res 69/248 (2015)); the situation of human rights in the Islamic Republic of Iran (GA Res 69/190 (2015)); the situation of human rights in the Syrian Arab Republic (GA Res 69/189 (2015)); and the situation of human rights in the Democratic People’s Republic of Korea (GA Res 69/188 (2015)). 46

  For example, on human rights in armed conflict (eg GA Res 2674(XXV) (1970), 2676(XXV) (1970), and 2677(XXV) (1970)); on national institutions for the protection of human rights (eg GA Res 34/49 (1979), 48/134 (1993), 60/154 (2005), 66/169 (2011), 70/163 (2015)); disappearances (eg GA Res 33/173 (1978), 39/111 (1984), 59/200 (2004)); human rights and extreme poverty (eg GA Res 46/121 (1991), 47/134 (1992), 61/157 (2006), 67/164 (2006), 69/183 (2014)); and human rights and terrorism (eg GA Res 48/122 (1993), 62/159 (2007), 70/148 (2015)). 47

  For example, designation of human rights day, GA Res 423(V) (1950); designation of human rights year, GA Res 1961 (XVIII) (1963), 2081(XX) (1965), 2217(XXI) (1966), 2339(XXII) (1967), 2442(XXIII) (1968), 2785(XXVI) (1971); decade for human rights education, GA Res 48/127 (1993), 50/173 (1995), 51/104 (1996), 52/127 (1997), 53/153 (1998), 54/161 (1999), 55/94 (2000), 56/167 (2001), 57/212 (2002), 58/181 (2003); international year of human rights learning, GA Res 62/171 (2007); international year of the world’s indigenous people, GA Res 48/133 (1993); decade for action to combat racism and racial discrimination, GA Res 3223(XXIX) (1974).

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48

  See, eg, Report of the Human Rights Council, UN Doc A/69/53 (2014); Report of the United Nations High Commissioner for Human Rights, UN Doc A/69/36 (2014); Report of the Human Rights Committee, UN Doc A/69/40 (2014); Report of the Special Rapporteur on the human right to safe drinking water and sanitation, UN Doc A/69/213 (2014); Report of the Special Rapporteur on violence against women, its causes and consequences, UN Doc A/69/368 (2014). 49

  Indeed, Cassese, ‘The General Assembly: Historical Perspective 1945–1989’ in Alston (ed), n 16, 51, has observed that ‘It seemed that the more impotent the Assembly felt in the face of difficult problems, the more often it resorted to paper solutions.’ Similarly, Quinn, n 44, 72, has noted the ‘diminishing of the currency’ that has occurred ‘through a proliferation of lowest common denominator paper’. 50

  Indeed, the Assembly, keen not to re-open debates conducted in the subsidiary organs, reiterates or paraphrases language used by those organs: Quinn, n 44, 62. For example, GA Res 65/281 (2011) reproduces as an annex the ‘Outcome of the review of the work and functioning of the Human Rights Council’, which was previously annexed to HRC Res 16/21 (2011). 51

  See, eg, the reaction to GA Res 32/130 (1977) and its reference to ‘alternative approaches’ to human rights. On GA Res 32/130 (1977), see van Boven, ‘United Nations Policies and Strategies: Global Perspectives?’ in Ramcharan (ed), n 41, 88. More recently, in 2008, a statement on human rights, sexual orientation, and gender identity was delivered at the General Assembly by Argentina on behalf of 66 states. A counter-statement was issued by Syria on behalf of 57 states. See O’Flaherty, ‘Sexual Orientation and Gender Identity’ in International Human Rights Law (eds Moeckli, Shah, and Sivakumaran, 2014), 314. 52

  See further ch 2, ‘General Assembly’, section 4.3, ‘Main Committees’. On the Third Committee, see Quinn, n 44, 60–5. 53

  At the 70th session of the General Assembly, allocated to the Third Committee under the heading of ‘Promotion of human rights’, the following subjects were considered: promotion and protection of the rights of children; rights of indigenous peoples; elimination of racism, racial discrimination, xenophobia, and related intolerance; right of peoples to selfdetermination; and promotion and protection of human rights. Many of these were further sub-divided. Other agenda items, such as maintenance of international peace and security, have human rights aspects to them, and those aspects are also considered by the Third Committee. See ‘Allocation of agenda items to the Third Committee’, UN Doc A/C.3/70/1 (2015). The various documents that are submitted under each item are available at http:// www.un.org/en/ga/third/70/documentslist.shtml. 54

  On the procedure, see ‘Further measures for the revitalization of the work of the General Assembly’, UN Doc A/Res/58/316, Annex; ‘Organization of the work of the Third Committee’, UN Doc A/C.3/70/L.1 (2015). 55

  For example, the Second (Economic and Financial) Committee considers the agenda item entitled ‘Eradication of poverty and other development issues’. See UN Doc A/C.2/70/1 (2015). The Sixth (Legal) Committee considers the Report of the International Law Commission on the work of the relevant session, which may include human rights topics, such as crimes against humanity. The Sixth Committee also considers the item ‘the rule of law at the national and international levels’. See further United Nations, United Nations Action in the Field of Human Rights (1994), 6; Schwelb and Alston, ‘The Principal Institutions and Other Bodies Founded under the

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Charter’ in The International Dimensions of Human Rights (ed Vasak, 1982), 232; Quinn, n 44, 95. 56

  GA Res 57(I) (1946); GA Res 48/162 (1993). See Black, The children and the nations: the story of UNICEF (1986); Rios-Kohn, ‘The Impact of the United Nations Convention on the Rights of the Child on UNICEF’s Mission’ (1996) 6 Transnational Law and Contemporary Problems 287. See, in particular, at http://www.unicef.org. 57

  GA Res 2029 (XX) (1965); GA Res 48/162 (1993). See further ch 17, ‘Improving Social Conditions’ and ch 18, ‘Improving Economic Wellbeing’. 58

  GA Res 60/180 (2005); SC Res 1645 (2005); SC Res 1646 (2005). See ch 26, ‘Keeping the Peace’. 59

  GA Res 1166 (XII) (1957). See further ch 23, ‘Office of the United Nations High Commissioner for Refugees’. 60

  GA Res 302 (IV) (1949). On the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), see Dale, ‘UNRWA: a subsidiary organ of the United Nations’ (1973) 23 ICLQ 576; Stebbing, ‘UNRWA: an instrument of peace in the Middle East’ (1985) 8 International Relations 270; United Nations Relief and Works Agency for Palestine Refugees in the Near East, Guide to UNRWA (1993); Buehrig, The UN and the Palestine Refugees (1971). The website of the UNRWA contains further information: https:// www.unrwa.org/. 61

  GA Res 3376 (XXX) (1975). See United Nations, Committee on the Exercise of the Inalienable Rights of the Palestinian People (1983); United Nations, United Nations Action in the Field of Human Rights, n 55, 12; and the website of the Committee at https:// unispal.un.org/DPA/DPR/unispal.nsf/com.htm. 62

  GA Res 2443 (XXIII) (1968). On the Committee, see United Nations, United Nations Action in the Field of Human Rights, n 55, 11–12. 63

  GA Res 1654 (XVI) (1961). See also GA Res 34/94 (1979). On the structure and work of the Committee, see United Nations Office of Public Information, The United Nations and decolonization: summary of the work of the Special Committee of Twenty-Four (1965); Schwelb and Alston, n 55, 236–8; United Nations, United Nations Action in the Field of Human Rights, n 55, 8–9. Further information may be found on the website of the Committee at http://www.un.org/en/decolonization/specialcommittee.shtml. 64

  These include the Commission on the Racial Situation in the Union of South Africa, GA Res 616A (VII) (1952), the Special Committee on Apartheid, GA Res 1761 (XVII) (1962), the United Nations Council for Namibia, GA Res 2248 (S-V) (1967) (originally named the United Nations Council for South West Africa, name changed pursuant to GA Res 2372 (XXII) (1968)). For details of these bodies, see Schwelb and Alston, n 55, 235–40; United Nations, n 55, 8–12. Other bodies include the Ad Hoc Commission on Prisoners of War, GA Res 427(V) (1950) and 741 (VIII) (1953); the Special Committee for the Preparation of Plans for the Celebration of the Fifteenth Anniversary of the Universal Declaration of Human Rights, GA Res 1775 (XVII) (1962); the Preparatory Committee for the International Conference on Human Rights, GA Res 2081 (XX) (1965); and the Special Committee to Select the Winners of the United Nations Human Rights Prizes, GA Res 2217 (XXI) (1966). 65

  See section 3, ‘The Human Rights Council’.

66

  On Art 39, see ch 26, ‘Keeping the Peace’, section 3.2.3.1, ‘Determination under Article 39’.

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67

  This was not always the practice of the Security Council. The Security Council’s handling of human rights issues between 1946 and the early 1960s has been described as ‘adventitious, sporadic, and inconclusive’: Bailey, ‘The Security Council’ in Alston (ed), n 16, 305–6. See generally Shraga, n 14, 14–20; Stagno Ugarte and Genser, ‘Evolution of the Security Council’s Engagement on Human Rights’ in The United Nations Security Council in the Age of Human Rights (eds Genser and Stagno Ugarte, 2014), 7–24; Bailey, UN Security Council and Human Rights (1994). But see Krisch, ‘Article 39’ in Simma et al (eds), n 1, vol II, 1287, who argues that ‘UN practice so far does not reflect a sufficiently broad consensus to extend the notion of a threat to the peace to grave violations of human rights as such, in the absence of the risk of armed conflict. This may well change once a sufficiently grave situation brings members to support quick and decisive action. Until then, the scope of the SC’s powers is better seen as more limited.’ It should not be overlooked that the Security Council has not adopted resolutions in a number of situations involving massive human rights violations. 68

  For example, Iraq, SC Res 688 (1991), 2170 (2014); Somalia, SC Res 733 (1992), 746 (1992), 794 (1992); Haiti, SC Res 873 (1993), 875 (1993), 917 (1994), 940 (1994), 1529 (2004); Rwanda, SC Res 918 (1994), 929 (1994); Kosovo, SC Res 1199 (1998); Democratic Republic of the Congo, SC Res 1304 (2000), 1341 (2001), 1484 (2003), 1493 (2003); Ivory Coast, SC Res 1633 (2005); Libya, SC Res 2174 (2014), 2240 (2015); South Sudan, SC Res 2155 (2014), 2206 (2015). See generally, Bailey, ‘The Security Council’, n 67, 306–15; Le Mon and Taylor, ‘Security Council Action in the Name of Human Rights’ (2003) 11 African Year Book of International Law 263. 69

  For example, Afghanistan, SC Res 1076 (1996), 1193 (1998), 1214 (1998); Ethiopia– Eritrea, SC Res 1226 (1999), 1227 (1999), 1297 (2000); Democratic Republic of the Congo, SC Res 1234 (1999), 1468 (2003), 1857 (2008); Burundi, SC Res 1286 (2000), 2303 (2016); Macedonia, SC Res 1345 (2001); Terrorist acts, SC Res 2249 (2015); Syria, SC Res 2254 (2015), 2258 (2015). 70

  See, in particular, the cases of Southern Rhodesia, SC Res 217 (1965), 232 (1966), 253 (1968); Territories under Portuguese administration, SC Res 180 (1963), SC Res 183 (1963), SC Res 218 (1965), SC Res 312 (1972); Namibia, SC Res 276 (1970); East Timor, SC Res 1264 (1999); Western Sahara, SC Res 1754 (2007). 71

  See, eg, the cases of Haiti, SC Res 841 (1993), SC Res 875 (1993), SC Res 917 (1994), SC Res 940 (1994); Burundi, SC Res 1072 (1996); Guinea-Bissau, SC Res 1876 (2009). 72

  For example, on children and armed conflict (SC Res 1261 (1999), SC Res 1314 (2000), SC Res 1379 (2001), SC Res 1539 (2004), SC Res 1612 (2005), SC Res 2225 (2015)); on protection of civilians in armed conflict (SC Res 1265 (1999), SC Res 1296 (2000), SC Res 1674 (2006), SC Res 1738 (2006), SC Res 2222 (2015)); on women, peace, and security (SC Res 1325 (2000), SC Res 2122 (2013), SC Res 2242 (2015)); and on sexual violence against civilians in armed conflict (SC Res 1820 (2008), SC Res 1888 (2009), SC Res 1960 (2010)). 73

  See, eg, the briefing of Max van der Stoel, Special Rapporteur of the Commission on Human Rights on the human rights situation in Iraq, in his personal capacity, UN Doc S/PV. 3105, 11 August 1992, and in an official capacity, UN Doc S/PV.3139, 23 November 1992; participation of members of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea at an Arria-Formula meeting of the Security Council on 17 April 2014, on which see Letter dated 11 July 2014 from the Permanent Representatives of Australia, France, and the United States of America to the United Nations addressed to the President of the Security Council, UN Doc S/2014/501, 17 July 2014; the Statement by the High Commission for Human Rights, UN Doc S/PV.4046, 16 September 1999; Statement by

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the UN High Commissioner for Human Rights to the Security Council of 22 December 2015 on developments in Yemen, UN Doc S/PV.7596, 22 December 2015. Although the Security Council initially proved reluctant for individuals such as the High Commissioner for Human Rights to appear before it, in recent years the High Commissioner has briefed the Security Council on numerous occasions. On the changing relationship between the High Commissioner and the Security Council, see Ramcharan, ‘Coordination with other UN Organs’, in Genser and Stagno Ugarte (eds), n 67,165–9. 74

  Between 1993 and 2000, members of the Security Council held over 70 Arria-formula meetings, though only three were with representatives of NGOs. Note by the President of the Security Council, UN Doc S/2002/603, 6 June 2002, fn 17. In 2001, six of the 11 Arriaformula meetings involved NGOs: Note by the President of the Security Council, UN Doc S/ 2002/603, 6 June 2002, para 4. The 2006 Note by the President of the Security Council, UN Doc S/2006/507, 19 July 2006, paras 54–5, indicates, ‘[t]he members of the Security Council intend to utilize “Arria-formula” meetings as a flexible and informal forum for enhancing their deliberations.…The members of the Security Council agree to consider using such meetings to enhance their contact with civil society and non-governmental organizations, including local non-governmental organizations…suggested by United Nations field offices.’ See further Paul, ‘Working with NGOs’ in The UN Security Council: from the Cold War to the 21st Century (ed Malone, 2004), 379–80. On Arria-formula meetings, see para 3.42. 75

  Consider, eg, the naming of ETA (Euskadi Ta Askatasuna) as responsible for the Madrid bombings of 11 March 2004 in SC Res 1530 (2004). On that episode, see O’Donnell, ‘Naming and Shaming: The Sorry Tale of Security Council Resolution 1530 (2004)’ (2006) 17 EJIL 945. 76

  On the role of international humanitarian law in the work of the Security Council, see Bourloyannis, ‘The Security Council of the United Nations and the Implementation of International Humanitarian Law’ (1991–2) 20 Denver JIL and Policy 335; Bailey, UN Security Council and Human Rights, n 67, 59–89; Bailey, ‘The Security Council’, n 67, 315– 21; van Baarda, ‘The Involvement of the Security Council in Maintaining International Humanitarian Law’ (1994) 12 NQHR 137; Schwebel, ‘The Roles of the Security Council and the International Court of Justice in the Application of International Humanitarian Law’ (1995) 27 NYU JILP 731; Cryer, ‘The Security Council and International Humanitarian Law’ in Testing the Boundaries of International Humanitarian Law (eds Breau and JachecNeale, 2006) 245; Nolte, ‘The Different Functions of the Security Council with Respect to Humanitarian Law’ in The United Nations Security Council and War (eds Lowe et al, 2008); Roscini, ‘The United Nations Security Council and the Enforcement of International Humanitarian Law’ (2010) 43 Israel Law Review 330. 77

  For example, the Middle East, SC Res 237 (1967); India–Pakistan, SC Res 307 (1971); Somalia, SC Res 733 (1992); Liberia, SC Res 788 (1992); Zaire, SC Res 1080 (1996); former Yugoslavia, SC Res 764 (1992); Rwanda, SC Res 812 (1993); Afghanistan, SC Res 1378 (2001); Yemen, SC Res 2140 (2014), 2216 (2015); South Sudan, SC Res 2206 (2015); Syria, SC Res 2254 (2015), 2258 (2015), 2268 (2016). 78

  See, eg, Afghanistan, SC Res 1378 (2001); Yemen, SC Res 2140 (2014), SC Res 2216 (2015); South Sudan, SC Res 2206 (2015); Syria, SC Res 2254 (2015), SC Res 2258 (2015), SC Res 2268 (2016). 79

  For example, the Middle East, SC Res 446 (1979), 465 (1980), 471 (1980), 476 (1980); Iran–Iraq, SC Res 540 (1983), 582 (1986), 598 (1987); Iraq–Kuwait, SC Res 670 (1990), 674 (1990); former Yugoslavia, SC Res 771 (1992), 780 (1992), 787 (1992); Liberia, SC Res 950 (1994); Rwanda, SC Res 912 (1994); Afghanistan, SC Res 1076 (1996), SC Res 1378 (2001); East Timor, SC Res 1264 (1999); Georgia, SC Res 876 (1993); Angola, SC Res 804 (1993); Burundi, SC Res 1012 (1995); Democratic Republic of the Congo (DRC), SC Res 1234 (1999); Sierra Leone, SC Res 1231 (1999), Somalia, SC Res 794 (1992); Sudan, SC Res From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

1547 (2004); Ivory Coast, SC Res 1464 (2003); South Sudan, SC 2155 (2014); Syria, SC Res 2139 (2014). For some difficulties with such an approach, see Cryer, n 76, 258. 80

  The language of the resolution varies. It includes, eg, references to human rights violations, human rights abuses, and violations of human rights law. See, eg, Burundi, SC Res 2248 (2015), 2303 (2016); Afghanistan, SC Res 1378 (2001); South Sudan, SC Res 2155 (2014), SC Res 2206 (2015); Syria, SC Res 2139 (2014). 81

  For example, Afghanistan, SC Res 1193 (1998); Angola, SC Res 851 (1993); Bosnia, SC Res 674 (1990); DRC, SC Res 1291 (2000), 1565 (2004); East Timor, SC Res 1264 (1999), 1272 (1999); Iraq, SC Res 670 (1990); Ivory Coast, SC Res 1479 (2003); Somalia, SC Res 794 (1992), 814 (1993); Libya, SC Res 2174 (2014); Syria, SC Res 2235 (2015). More concretely, the Security Council authorized the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) (SC Res 808 (1993) and 827 (1993)) and the International Criminal Tribunal for Rwanda (ICTR) (SC Res 955 (1994)), and requested the Secretary-General to negotiate an agreement with Sierra Leone for the establishment of a Special Court (SCSL) (SC Res 1315 (2000)). The Council has referred the situation in the Darfur region of Sudan to the International Criminal Court (ICC) (SC Res 1593 (2005); Rome Statute of the International Criminal Court, Art 13(b), on which, see Neuner, ‘The Darfur Referral of the Security Council and the Scope of the Jurisdiction of the International Criminal Court’ (2005) 8 Ybk IHL 320; Cryer, ‘Sudan, Resolution 1593, and International Criminal Justice’ (2006) 19 LJIL 195; Happold, ‘Darfur, the Security Council, and the International Criminal Court’ (2005) 55 ICLQ 226). It has also referred the situation in Libya since 15 February 2011 to the ICC (SC Res 1970 (2011). See further ch 31, sections 31.1 (ICTY), 31.2 (ICTR), 31.3 (ICC), and 31.4 (SCSL). 82

  For example, on children and armed conflict (SC Res 1261 (1999), SC Res 1314 (2000), SC Res 1379 (2001), SC Res 1539 (2004), SC Res 1612 (2005), SC Res 2225 (2015)); on protection of civilians in armed conflict (SC Res 1265 (1999), SC Res 1296 (2000), SC Res 1674 (2006), SC Res 1738 (2006), SC Res 2222 (2015)); on sexual violence against civilians in armed conflict (SC Res 1820 (2008), SC Res 1888 (2009), SC Res 1960 (2010)); and on impunity (SC Res 1256 (1999), 1314 (2000), 1366 (2001), 1460 (2003), 1539 (2004)). 83

  It was considered primarily in the context of country situations on the agenda of the Security Council. See, eg, SC Res 1071 (1996) on Liberia; SC Res 1181 (1998) on Sierra Leone. 84

  SC Res 1261 (1999).

85

  SC Res 1261 (1999) expressed the ‘grave concern’ of the Security Council ‘at the harmful and widespread impact of armed conflict on children and the long-term consequences this has for durable peace, security and development’. As the SecretaryGeneral noted in his report on children and armed conflict, UN Doc A/55/163-S/2000/712 (2000), para 1, ‘The adoption of the resolution has finally given full legitimacy to the protection of children exposed to conflict as an issue that properly belongs on the agenda of the Council. The Security Council has now clearly acknowledged in several resolutions and presidential statements that the harmful impact of conflict on children has implications for peace and security.’ 86

  As noted by Thompson, ‘Children and Armed Conflict’ in Genser and Stagno Ugarte (eds), n 67, 98, ‘[t]he desire to protect children in situations of armed conflict created a dynamic that allowed for the setting aside of political considerations that made it difficult for the Council to take up human-rights issues’.

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87

  The Working Group consists of all members of the Security Council. It operates by consensus. For the terms of reference of the Working Group, see UN Doc S/2006/275, Annex. On the lead up to the establishment of the Working Group, see Thompson, n 86, 98– 9 and 102–4. 88

  The monitoring and reporting mechanism was established pursuant to SC Res 1539 (2004) and SC Res 1612 (2005). It is designed to ‘collect and provide timely, objective, accurate and reliable information on the recruitment and use of child soldiers in violation of applicable international law and on other violations and abuses committed against children affected by armed conflict’. The ‘other violations and abuses’ are the killing or maiming of children, sexual violence against children, child abduction, attacks against schools and hospitals, and denial of humanitarian access for children. The mechanism reports to the Working Group. It was proposed by the Secretary-General (UN Doc A/59/695-S/2005/72). 89

  The report of the Secretary-General is introduced by the Special Representative of the Secretary-General for Children and Armed Conflict. Also present at the meeting—and participating in the discussion—are relevant UN officials and the Permanent Representative of the state concerned. The Working Group ‘design[s] a specific approach for each case, proceeding in a constructive way, putting emphasis on dialogue and cooperation’. See ‘Options for possible actions by the CAAC Working Group of the Security Council (“toolkit”)’, UN Doc S/2006/724 (2006), Addendum. For examples of conclusions, see, eg, UN Doc S/2006/724 (DRC); UN Doc S/AC.51/2008/7 (Sudan); UN Doc S/AC.51/2013/2 (Myanmar); UN Doc S/AC.51/2016/2 (Iraq). 90

  The notion of an ‘armed conflict’ for the purposes of the Secretary-General’s report is not the same as that for the purposes of the applicability of international humanitarian law. See SC Res 1612 (2005). 91

  In SC Res 1379 (2001), the Security Council requested the Secretary-General ‘to attach to his report a list of parties to armed conflict that recruit or use children in violation of the international obligations applicable to them, in situations that are on the Security Council’s agenda or that may be brought to the attention of the Security Council by the SecretaryGeneral, in accordance with Article 99 of the Charter of the United Nations, which in his opinion may threaten the maintenance of international peace and security’. Listing was later extended to include parties to armed conflicts ‘that engage, in contravention of applicable international law, in patterns of killing and maiming of children and/or rape and other sexual violence against children’ (SC Res 1882 (2009)); parties to armed conflicts ‘that engage, in contravention of applicable international law in recurrent attacks on schools and/or hospitals’ and ‘in recurrent attacks or threats of attacks against protected persons in relation to schools and/or hospitals’ (SC Res 1998 (2011)); and parties to armed conflicts ‘that engage, in contravention of applicable international law, in patterns of abduction of children in situations of armed conflict’ (SC Res 2225 (2015)). Pursuant to SC Res 1539 (2004) and subsequent resolutions, ‘parties mentioned in the Secretary-General’s report in situations of armed conflict’ are required to prepare ‘concrete time-bound action plans’ to halt the relevant violations of international law for which they are listed. 92

  SC Res 1612 (2005).

93

  SC Res 1539 (2004). Sanctions have been imposed on individuals in respect of the recruitment of children in the DRC and in Côte d’Ivoire.

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94

  See Thompson, n 86, 113–16. The Security Council has called for ‘enhanced communication between the Working Group and relevant Security Council Sanctions Committees, including through the exchange of pertinent information on violation and abuses committed against children in armed conflict’, and has indicated that it would, ‘when establishing, modifying or renewing the mandate of relevant Sanctions regimes… consider including provisions pertaining to parties to armed conflict that engage in activities in violation of applicable international law relating to the rights and protection of children in armed conflict’: SC Res 1998 (2011). 95

  The Security Council is conscious of the fact that certain parties have remained listed for several years, eg, requesting the Working Group to consider ‘a broad range of options for increasing pressure on persistent perpetrators’: SC Res 2068 (2012). 96

  See the annual reports on the activities of the Working Group, eg, UN Doc S/2008/455.

See generally, Coomaraswamy, ‘The Security Council and Children and Armed Conflict: An Experiment in the Making’, Public Lecture at the Centre on Human Rights in Conflict, University of East London School of Law, 12 April 2010, available at https:// childrenandarmedconflict.un.org/statement/12-apr-2010-the-security-council-and-caac/; Happold, ‘Protecting Children in Armed Conflict: Harnessing the Security Council’s “Soft Power”’ (2010) 43 Israel Law Review 360; Thompson, n 86. 97

  It was adopted some days after an Arria-formula meeting on women, peace, and security; and an open discussion on women, peace, and security. See UN Doc S/PV.4208 (2000). Civil society was involved in the lobbying for, and drafting of, the Resolution. See UN Women, Preventing Conflict, Transforming Justice, Securing the Peace: A Global Study on the Implementation of United Nations Security Council Resolution 1325 (2015), 30. 98

  Another aspect of the women, peace, and security agenda to which particular attention has been paid is the participation of women in peacemaking, peacebuilding, and conflict prevention. In SC Res 1889 (2009), the Security Council urged ‘Member States, international and regional organisations to take further measures to improve women’s participation during all stages of peace processes, particularly in conflict resolution, postconflict planning and peacebuilding’. A few years later, in SC Res 2122 (2013), the Security Council expressed its intention to ‘to focus more attention on women’s leadership and participation in conflict resolution and peacebuilding’. According to a study commissioned by the UN Secretary-General, following a request from the Security Council—UN Women, n 97, 14—although ‘the participation of women in formal peace processes has been inching up, a study of 31 major peace processes between 1992 and 2011 revealed that only nine per cent of negotiators were women’. Two per cent of chief mediators were women, and 4 per cent of witnesses and signatories were women (ibid, 45). The study identified further that, even when women participate in peace processes, they are not always able to influence the process, with decision-making sometimes being left to male participants (ibid, 48). 99

  In SC Res 1889 (2009), the Security Council urged member states ‘to ensure gender mainstreaming in all post-conflict peacebuilding and recovery processes and sectors’. According to UN Women, n 97, 14, ‘[b]etween 1990 and 2000, when the Security Council adopted [resolution] 1325, just 11 per cent of peace agreements signed included a reference to women. Since the adoption of resolution1325, 27 per cent of peace agreements have referenced women. Of the six agreements resulting from peace talks or national dialogue processes supported by the UN in 2014, 67 per cent contained references relevant to women, peace and security.’ The references are also ‘gradually becoming less tokenistic’

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and more concrete (ibid), 45. See also Report of the Secretary-General on women and peace and security, UN Doc S/2015/716 (2015), paras 13–15. 100

  The Security Council has followed up on the issue in later resolutions. For example, in SC Res 1889 (2009), the Security Council called on the Secretary-General to ‘develop a strategy…to increase the number of women appointed to pursue good offices on his behalf, particularly as Special Representatives and Special Envoys, and to take measures to increase women’s participation in United Nations political, peacebuilding and peacekeeping missions’. It also requested the Secretary-General to continue to appoint ‘gender advisors and/or women-protection advisors’ to UN missions. In SC Res 2122 (2013), the Security Council expressed its intention ‘to include provisions to facilitate women’s full participation and protection in: election and political processes, disarmament, demobilization and reintegration programs, security sector and judicial reforms, and wider post-conflict reconstruction processes where these are mandated tasks within the mission’. However, UN Women, n 97, 14, noted that although ‘[t]he number of senior women leaders within the UN has been on the rise, from special envoys of the Secretary-General, to the first female commander of a peacekeeping mission’, ‘[o]nly three per cent of the military in UN missions are women, and the majority of these are employed as support staff’. This has risen from 1 per cent in 1993 (ibid, 139). For a breakdown of figures, see ibid, 270–3. 101

  ‘[A]ll multidimensional peacekeeping missions have gender units, and are also deploying women’s protection advisors—first mandated in Security Council resolution 1888 in 2009. Almost every mandate of UN peacekeeping now includes specific provisions on women, peace and security, and almost every directive for the military and police components of missions now include specific instructions to address women’s security.’ UN Women, n 97, 144. See also Report of the Secretary-General on women and peace and security, UN Doc S/2015/716 (2015), paras 77–9. 102

  See, eg, Report of the Secretary-General on women and peace and security, UN Doc S/ 2015/716 (2015). 103

  See SC Res 1820 (2008); SC Res 1888 (2009); SC Res 1889 (2009); SC Res 1960 (2010); SC Res 2106 (2013); SC Res 2122 (2013). 104

  See nn 98–101.

In PRST/2004/40, the Security Council welcomed states’ efforts to implement SC Res 1325 (2000), ‘including the development of national action plans’. As of May 2016, 60 states had developed such action plans. For the national action plans, see http:// www.peacewomen.org/member-states. The Security Council also requested the SecretaryGeneral to submit a system-wide action plan for the implementation of SC Res 1325 (2000) across the UN system. 105

  A number of Security Council resolutions were passed on the subject as part of the women, peace, and security agenda. For example, in SC Res 1820 (2008), the Security Council ‘affirm[ed] its intention, when establishing and renewing state-specific sanctions regimes, to take into consideration the appropriateness of targeted and graduated measures against parties to situations of armed conflict who commit rape and other forms of sexual violence against women and girls in situations of armed conflict’. The Security Council also requested the Secretary-General to submit a report on the implementation of the Resolution ‘in the context of situations which are on the agenda of the Council’. In SC Res 1888 (2009), the Security Council requested the Secretary-General appoint a Special Representative, and called on the Secretary-General ‘to identify and take the appropriate measures to deploy rapidly a team of experts to situations of particular concern with respect to sexual violence in armed conflict’. This led to the establishment of the Special Representative on Sexual Violence in Conflict and the Team of Experts on the Rule

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of Law and Sexual Violence in Conflict. On the Special Representative, see http:// www.un.org/sexualviolenceinconflict/. In SC Res 1960 (2010), the Security Council encouraged the Secretary-General to include in his reports ‘detailed information on parties to armed conflict that are credibly suspected of committing or being responsible for patterns of rape and other forms of sexual violence in situations of armed conflict on the Security Council agenda’, and ‘expresse[d] its intention to use this list as a basis for more focused United Nations engagement with those parties, including, as appropriate, measures in accordance with the procedures of the relevant sanctions committees’. The listing and de-listing criteria were to be the same as those used in the listing and de-listing of parties that ‘engage, in contravention of international law, in patterns of killing and maiming of children and/or rape and other sexual violence against children’. The Security Council also called upon ‘parties to armed conflict to make and implement specific and time-bound commitments to combat sexual violence, which should include, inter alia, issuance of clear orders through chains of command prohibiting sexual violence and the prohibition of sexual violence in Codes of Conduct, military field manuals, or equivalent’; and further called upon those parties ‘to make and implement specific commitments on timely investigation of alleged abuses in order to hold perpetrators accountable’. Furthermore, the Security Council requested the Secretary-General ‘to establish monitoring, analysis and reporting arrangements on conflict-related sexual violence’. 106

  See, eg, SC Res 307 (1971), SC Res 540 (1983). See Brooks, ‘Civilians and Armed Conflict’ in Genser and Stagno Ugarte (eds), n 67. 107

  See also Statement by the President of the Security Council, UN Doc S/PRST/1999/6 (12 February 1999). 108

  The mandates of a number of peacekeeping operations include the protection of civilians. See, eg, SC Res 1542 (2004), para 7.I(f), and later resolutions in respect of the UN Stabilization Mission in Haiti (MINUSTAH), which provides that MINUSTAH has the mandate, inter alia, ‘to protect civilians under imminent threat of physical violence’; SC Res 1701 (2006), para 12, in respect of the UN Interim Force in Lebanon (UNIFIL); SC Res 2155 (2014) in respect of the UN Mission in South Sudan (UNMISS), which extended the Mission’s mandate, inter alia, to the protection of civilians. See generally SC Res 1674 (2006), which ‘reaffirms’ the practice of the Security Council ‘of ensuring that the mandates of United Nations peacekeeping, political and peacebuilding missions include, where appropriate and on a case-by-case basis, provisions regarding (i) the protection of civilians, particularly those under imminent threat of physical danger within their zones of operation’. See further Holt, Taylor, and Kelly, Protecting Civilians in the Context of UN Peacekeeping Operations: Successes, Setbacks and Remaining Challenges (2009). 109

  The ‘Aide Memoire for the consideration of issues pertaining to the protection of civilians in armed conflict’ notes that ‘Enhancing the protection of civilians in armed conflict is at the core of the work of the United Nations Security Council for the maintenance of peace and security.’ UN Doc S/PRST/2014/3, Annex. See also Report of the Secretary-General on the protection of civilians in armed conflict, UN Doc S/2009/277 (2009), para 2. 110

  See, eg, SC Res 1296 (2000); SC Res 1674 (2006); SC Res 1894 (2009); UN Doc S/ PRST/2010/25; UN Doc S/PRST/2015/23. For analysis of the language of the resolutions, see Office for the Coordination of Humanitarian Affairs (OCHA), Security Council Norms and Practice on the Protection of Civilians in Armed Conflict: Analysis of Normative Developments in Security Council Resolutions 2009–2013 (OCHA Policy and Studies Series,

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May 2014). See also ‘Aide Memoire for the consideration of issues pertaining to the protection of civilians in armed conflict’, n 109. 111

  The expert group was established in 2009 following a recommendation in the 2007 report of the Secretary-General on the protection of civilians. See UN Doc S/2007/643. The group is composed of experts from members of the Security Council. It meets to discuss protection issues relating to situations on the agenda of the Security Council. The expert group is briefed by OCHA, with input from other UN entities and NGOs. The expert group meets ahead of mandate renewals or mandate adoptions for Council authorised operations with PoC [protection of civilians] concerns. In the case of mandate renewals, OCHA’s briefing outlines the progress made in addressing protection concerns, or lack thereof, in order for the Expert Group to provide up to date information to the Council. On some occasions the Expert Group has also served to discuss in more detail with Council members some of the generic thematic protection concerns pertaining to a wide range of situations on the Council’s agenda. In briefing the Expert Group, the main protection concerns in the specific situation under consideration are identified, and for each of these concerns: factual information is provided; actions taken by protection actors are outlined; trends, dynamics and threats are analyzed, and suggestions are presented on possible Security Council action along with specific language proposals for Security Council resolutions. (OCHA, n 110, vi) 112

  See, eg, Report of the Secretary-General on the protection of civilians in armed conflict, UN Doc S/2016/447 (2016). The 2009 Report of the Secretary-General noted that the reports ‘have raised a range of issues, reflecting the fact that improving the protection of civilians is not a purely humanitarian task; rather, it is a task that requires focus and action in the peacekeeping, human rights, rule of law, political, security, development and disarmament fields. The reports have also underlined the fact that improving the protection of individuals and communities is not a substitute for political processes aimed at preventing or ending conflict and building sustainable peace’: Report of the SecretaryGeneral on the protection of civilians in armed conflict, UN Doc S/2009/277 (2009), para 8. 113

  See SC Res 1738 (2006); SC Res 2222 (2015). In the resolutions, the Security Council, inter alia, requested the Secretary-General to include the issue of the ‘safety and security of journalists, media professionals and associated personnel’ as part of his report on the protection of civilians. 114

  2005 World Summit Outcome Document, GA Res 60/1 (2005), para 139.

For the history of the ‘responsibility to protect’ doctrine, see International Commission on Intervention and State Sovereignty, The Responsibility to Protect (2001); A more secure world: our shared responsibility, Report of the High-Level Panel on Threats, Challenges and Change, UN Doc A/59/565; In larger freedom: towards development, security and human rights for all, Report of the Secretary-General, UN Doc A/59/2005; 2005 World Summit Outcome, GA Res 60/1 (2005), paras 138–9. On the ‘responsibility to protect’ doctrine, see Stahn, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm’ (2007) 101 AJIL 99; Hilold, ‘The Duty to Protect and the Reform of the United Nations—A New Step in the Development of International Law?’ (2006) MPUNYB 35; Boisson de Chazournes and Condorelli, ‘De la “responsabilité de protéger” ou d’une nouvelle parure pour une notion déjà bien établie’ (2006) 110 RG 11;

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Evans, ‘The Responsibility to Protect and the Duty to Prevent’ (2004) 98 ASIL Proceedings 77; Evans and Sahnoun, ‘The Responsibility to Protect’ [Nov/Dec 2002] Foreign Affairs 99. 115

  In SC Res 1674 (2006), the Security Council ‘reaffirm[ed] the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’. See also SC Res 1894 (2009) and SC Res 2171 (2014). The Security Council has referenced responsibility to protect in several resolutions on particular situations. See, eg, SC Res 1706 (2006) on the situation in Sudan; SC Res 1653 (2006) on the Great Lakes region; SC Res 2196 (2015), 2262 (2016) and 2301 (2016) on the Central African Republic; and SC Res 2304 (2016) on the situation in South Sudan. In SC Res 1970 (2011), the Security Council noted that the ‘widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity’, recalled ‘the Libyan authorities’ responsibility to protect its population’, referred the situation in Libya to the ICC, and imposed various sanctions. In SC Res 1973 (2011), the Security Council reiterated ‘the responsibility of the Libyan authorities to protect the Libyan population’, and reaffirmed ‘that parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians’. Acting under Chapter VII of the Charter, the Security Council ‘Authorize[d] Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the SecretaryGeneral, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and request[ed] the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council’. Actions taken by states following SC Res 1973 (2011) proved controversial, with some states taking the view that states acting purportedly pursuant to SC Res 1973 (2011) had exceeded the authority given to them under that Resolution. See, eg, UN Doc S/PV.6705 (2012), in which the Russian Federation stated that ‘[i]n Libya, the arbitrary interpretation of resolution 1973 (2011) by the coalition forces led to numerous violations of international law’. In SC Res 1975 (2011), the Security Council condemned the ‘serious abuses and violations of international law in Côte d’Ivoire’ and reaffirmed ‘the primary responsibility of each State to protect civilians’. Acting under Chapter VII of the Charter, it recalled ‘its authorization and stresse[d] its full support given to the UNOCI [United Nations Operation in Côte d’Ivoire], while impartially implementing its mandate, to use all necessary means to carry out its mandate to protect civilians under imminent threat of physical violence, within its capabilities and its areas of deployment, including to prevent the use of heavy weapons against the civilian population and request[ed] the Secretary-General to keep it urgently informed of measures taken and efforts made in this regard’, and called upon ‘all parties to cooperate fully in the operation of UNOCI and French forces which support it, in particular by guaranteeing their safety, security and freedom of movement with unhindered and immediate access throughout the territory of Côte d’Ivoire, to enable them to fully carry out their mandate’. 116

  See, eg, the fourth annual informal, interactive, dialogue on the responsibility to protect in the General Assembly, GA/11270, 5 September 2012.

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117

  Letter dated 31 August 2007 from the Secretary-General addressed to the President of the Security Council, UN Doc S/2007/721. 118

  See, eg, Commission of Experts on the former Yugoslavia, established pursuant to SC Res 780 (1992); Commission of Experts for Rwanda, established pursuant to SC Res 935 (1994); International Commission of Inquiry for Burundi, established pursuant to SC Res 1012 (1995); International Commission of Inquiry on Darfur, established pursuant to SC Res 1564 (2004); and International Commission of Inquiry on the Central African Republic, established pursuant to SC Res 2127 (2013). The precise mandate of the particular commission is set out in the resolution that establishes it. For example, the Security Council resolution establishing the international commission of inquiry on the Central African Republic (CAR) requests that the SecretaryGeneral ‘rapidly establish an international commission of inquiry for an initial period of one year, including experts in both international humanitarian law and human rights law, in order immediately to investigate reports of violations of international humanitarian law, international human rights law and abuses of human rights in CAR by all parties since 1 January 2013, to compile information, to help identify the perpetrators of such violations and abuses, point to their possible criminal responsibility and to help ensure that those responsible are held accountable, and calls on all parties to cooperate fully with such a commission’: SC Res 2127 (2013). For the reports of the Commissions, see Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, UN Doc S/1994/674; Letter dated 1 October 1994 from the Secretary-General addressed to the President of the Security Council, UN Doc S/1994/1405; Report of the International Commission of Inquiry on Burundi, UN Doc S/1996/682; Report of the International Commission on Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004; Preliminary Report of the International Commission of Inquiry on the Central African Republic, UN Doc S/2014/373 (2014) and Final Report of the International Commission of Inquiry on the Central African Republic, UN Doc S/2014/928, Annex. 119

  For example, the report of the Commission of Experts on the former Yugoslavia led to the establishment of the ICTY, and the report of the Commission of Experts for Rwanda led to the establishment of the ICTR. See further ch 31, ‘Criminal Tribunals Established by, or in Relationship with, the UN’, section ‘The International Criminal Tribunal for Rwanda’ and section 31.3, ‘The International Criminal Court’, respectively. The report of the Commission of Inquiry on Darfur led to the referral of the situation in Darfur to the ICC: see SC Res 1593 (2005), the preamble to which takes ‘note of the report of the International Commission of Inquiry on violations of international humanitarian law and human rights law in Darfur’. 120

  See, eg, Report of the Security Council Mission established pursuant to Resolution 819 (1993), UN Doc S/25700 [Bosnia and Herzegovina]; Report of the Security Council Mission to Burundi on 13 and 14 August 1994, UN Doc S/1994/1039; Report of the Security Council Mission to the Great Lakes region, 15–26 May 2001, UN Doc S/2001/521; Report of the Security Council Mission to Haiti, 13 to 16 April 2005, UN Doc S/2005/32; Report of the Security Council Mission to Afghanistan, 11 to 16 November 2006, UN Doc S/2006/935; Report of the Security Council mission to Mali, 1–3 February 2014, UN Doc S/2014/173. 121

  The reference to human rights reads, ‘Take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts’ (para 3(f)). This limited reference has been criticized. See, eg, Report of the

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Independent Expert on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Robert K Goldman, UN Doc E/CN.4/2005/103, para 6. 122

  See, eg, SC Res 1456 (2003), Annex, para 6; SC Res 1624 (2005); SC Res 1787 (2007); SC Res 1805 (2008). In SC Res 1963 (2010), the Security Council reiterated the statement and observed that ‘effective counter-terrorism measures and respect for human rights are complementary and mutually reinforcing, and are an essential part of a successful counter-terrorism effort’. It also noted ‘the importance of respect for the rule of law so as to effectively combat terrorism, and thus encourages CTED [the Counter-Terrorism Committee Executive Directorate] to further develop its activities in this area, to ensure that all human rights issues relevant to the implementation of resolutions 1373 (2001) and 1624 (2005) are addressed consistently and even-handedly including, as appropriate, on country visits that are organized with the consent of the visited member State’. See also UN Doc S/PRST/ 2010/19. 123

  The role of human rights law in the work of the Committee has changed over time. Shortly after the establishment of the Committee, it observed that it was established pursuant to SC Res 1373, and as such the monitoring of human rights law was outside the scope of its mandate, but it indicated that ‘we will remain aware of the interaction with human rights concerns, and we will keep ourselves briefed as appropriate’: Statement by the Chairman of the Counter Terrorism Committee to the Security Council, UN Doc S/PV/ 4453, 5 (18 January 2002). Subsequently, in line with statements of the Security Council, the Committee confirmed that ‘States must ensure that any measures taken to combat terrorism should comply with all their obligations under international law and that they should adopt such measures in accordance with international law, in particular human rights law, refugee law and humanitarian law’: UN Doc S/2005/800, para 13; UN Doc S/ 2006/989, para 26. In 2006, the Committee formulated policy guidance regarding human rights, which provides, inter alia, that the Counter-Terrorism Committee Executive Directorate should: (a) provide advice to the Committee on international human rights, refugee, and humanitarian law matters relating to the identification and implementation of effective measures to implement SC Res 1373 (2001); (b) provide advice to the Committee on international human rights, refugee, and humanitarian law matters relating to states’ measures to implement SC Res 1373 (2001); and (c) liaise with the OHCHR and, as appropriate, other human rights organizations on counter-terrorism matters: UN Doc S/AC. 40/2006/PG.2. See also ‘Letter dated 7 February 2008 from the Chairman of the Security Council Committee established pursuant to resolution 1373 (2001) concerning counterterrorism addressed to the President of the Security Council’, UN Doc S/2008/80, Annex and Enclosure, para 4. On the changing position of the impact of human rights on the work of the Committee, see Foot, ‘The United Nations, Counter Terrorism, and Human Rights: Institutions Adaptation and Embedded Idea’ (2007) 29 HRQ 489; Flynn, ‘The Security Council’s Counter-Terrorism Committee and Human Rights’ (2007) 7 HRLR 371. 124

  The Counter-Terrorism Committee Executive Directorate has a human rights, humanitarian, and asylum law officer who reports directly to the Executive Director. In 2008, a Working Group was established on issues raised by SC Res 1624 (2005) and human rights aspects of counter-terrorism in the context of SC Res 1373 (2001). See ‘Letter dated 7 February 2008 from the Chairman of the Security Council Committee established pursuant to resolution 1373 (2001) concerning counter-terrorism addressed to the President of the Security Council’, UN Doc S/2008/80, Annex and Enclosure, para 15; SC Res 1805 (2008). The primary responsibility of the Working Group is to ‘clarify relevant issues and ensure consistency in the approach taken to these issues by CTED and the Committee’. See Counter-Terrorism Committee Executive Directorate, Background Paper:

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Thematic discussion of the Counter-Terrorism Committee on the human rights aspect of counter-terrorism in the context of resolution 1373 (2001), para 4. 125

  The Counter-Terrorism Executive Committee has noted that ‘some States’ counterterrorism laws are overbroad and could be applied against activities protected under international human rights law’; ‘some States lack mechanisms to allow affected persons to challenge freezing of assets before independent bodies or to seek humanitarian exemptions’; ‘Some States have introduced special procedures, in terrorism-related matters, that may infringe on human rights’; ‘some States lack legal provisions guaranteeing effective protection from refoulement’; ‘some States have introduced special measures that may affect the opportunity for legitimate refugees to obtain protection’: Counter-Terrorism Committee Executive Directorate, n 124, para 9. 126

  UN Doc S/PV.5601 (20 December 2006).

127

  The Assessment and Technical Assistance Office of the Counter-Terrorism Committee Executive Directorate has a mandate to ‘[l]iaise with the Office of the UN High Commissioner for Human Rights and other human rights organisations in matters related to counter-terrorism’. See ‘Proposal for the Revitalisation of the Counter-Terrorism Committee’ in ‘Letter dated 19 February 2004 from the Chairman of the Security Council Committee established pursuant to resolution 1373 (2001) concerning counter-terrorism addressed to the President of the Security Council’, UN Doc S/2004/124, Annex, para 16(c). In GA Res 64/168 (2010), the General Assembly encouraged ‘the Security Council and its Counter-Terrorism Committee to strengthen the links, cooperation and dialogue with relevant human rights bodies, in particular with the [OHCHR], the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, other relevant special procedures and mechanisms of the Human Rights Council, and relevant treaty bodies, giving due regard to the promotion and protection of human rights and the rule of law in the ongoing work pursuant to relevant Security Council resolutions relating to terrorism’. The Committee has met with, amongst others, the High Commissioner for Human Rights (‘Statement address by Sergio Vieira de Mello The High Commissioner for Human Rights to the Counter-Terrorism Committee of the Security Council’ (21 October 2002), available at http://www.un.org/en/sc/ctc/docs/rights/2002_10_21_hchr_statement.pdf; http:// www.unhchr.ch/huricane/huricane.nsf/(Symbol)/ctc.2002.En?OpenDocument; and Address by Ms Navanethem Pillay, United Nations High Commissioner for Human Rights to the Counter Terrorism Committee of the Security Council, New York, 29 October 2009, available at http://www.un.org/en/sc/ctc/docs/rights/2009_10_09_hchr_brief.pdf); the Special Rapporteur on Human Rights and Terrorism (‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin’, UN Doc E/CN.4/2006/98, paras 51–63; ‘Briefing by Mr Martin Scheinin, UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’); and members of the Human Rights Committee (‘Security Council Counter-Terrorism Committee UN Headquarters, 19 June 2003, Briefing by Sir Nigel Rodley, Vice-Chairperson Human Rights Committee’. A member of the Committee’s staff has also briefed the Human Rights Committee (UN Doc A/58/40, paras 24–6)). The OHCHR has provided information to the Committee (see, eg, ‘Note to the Chair of the Counter-Terrorism Committee: A Human Rights Perspective on Counter-Terrorist Measures’ and ‘Proposals for “Further Guidance” for the submission of reports pursuant to paragraph

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6 of Security Council Resolution 1373 (2001)’, both available at http://www.un.org/en/sc/ctc/ rights.html). The Committee maintains regular contact with the Organization for Security and Cooperation in Europe (OSCE) Office for Democratic Institutions and Human Rights, the Council of Europe’s Directorates of Legal Affairs and Human Rights, the OHCHR, the Office of the United Nations High Commissioner for Refugees, and the International Committee of the Red Cross (ICRC; see ‘Report of the Counter-Terrorism Committee to the Security Council for its consideration as part of its comprehensive review of the Counter-Terrorism Committee Executive Directorate’, UN Doc S/2006/989, Annex, paras 25–6; Appendix I, pp 25, 27; Appendix II, 51). 128

  See, eg, ‘Report of the Special Rapporteur, UN Doc E/CN.4/2006/98, n 127, paras 60–1.

129

  Pursuant to SC Res 751 (1992) and 1907 (2009), concerning Somalia and Eritrea; SC Res 1267 (1999), 1989 (2011), and 2253 (2015), concerning Islamic State of Iraq and the Levant (ISIL) (Da’esh), Al Qaeda, and associated individuals, groups, undertakings, and entities; SC Res 1518 (2003), concerning Iraq; SC Res 1533 (2004), concerning the DRC; SC Res 1591 (2005), concerning Sudan; SC Res 1636 (2005), concerning Lebanon; SC Res 1718 (2006), concerning the Democratic People’s Republic of Korea; SC Res 1737 (2006), concerning Iran; SC Res 1970 (2011), concerning Libya; SC Res 1988 (2011), concerning the Taliban; SC Res 2048 (2012), concerning Guinea Bissau; SC Res 2127 (2013), concerning the CAR; SC Res 2140 (2014), concerning Yemen. A number of other sanctions committees have been wound up. 130

  These so-called ‘smart sanctions’ or ‘targeted sanctions’ differ from the general sanctions that were imposed by the Security Council in the 1990s, notably against Iraq, which negatively affected the human rights and humanitarian situation of the civilian population. See, eg, UN Doc S/1998/147; UN Doc E/CN.4/Sub.2/2000/33; General Comment 8 of the Committee on Economic, Social and Cultural Rights, UN Doc E/C.12/1997/8. See further paras 27.66–27.67. Lists of individuals and entities subject to sanctions by the committees can be found on the website of each Committee, available through https://www.un.org/sc/suborg/en/. 131

  See, eg, the sanctions committee established pursuant to SC Res 2140 (2014), which provides that the listed sanctions ‘shall apply to individuals or entities designated by the Committee as engaging in or providing support for acts that threaten the peace, security or stability of Yemen’ and that such acts include ‘[p]lanning, directing, or committing acts that violate applicable international human rights law or international humanitarian law, or acts that constitute human rights abuses, in Yemen’. In SC Res 2206 (2015), the Security Council included as actions or policies that may lead to sanctions by the 2206 sanctions committee: ‘[p]lanning, directing, or committing acts that violate applicable international human rights law or international humanitarian law, or acts that constitute human rights abuses, in South Sudan’; ‘[t]he targeting of civilians, including women and children, through the commission of acts of violence (including killing, maiming, torture, or rape or other sexual violence), abduction, enforced disappearance, forced displacement, or attacks on schools, hospitals, religious sites, or locations where civilians are seeking refuge, or through conduct that would constitute a serious abuse or violation of human rights or a violation of international humanitarian law’; and ‘[t]he use or recruitment of children by armed groups or armed forces in the context of the armed conflict in South Sudan’.

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132

  Different sanctions committees apply slightly different listing procedures. The procedure of the 1267 Committee is as follows. Any UN member state may propose a name to be added to the sanctions list. When proposing a name, member states are to use ‘the standard form for listing and provide a statement of case that should include as detailed and specific reasons as possible describing the proposed basis for the listing’: SC Res 2253 (2015). The statement of case is to include, inter alia, findings and reasoning that demonstrate that the listing criteria are satisfied, the nature of the supporting evidence, and the supporting evidence or documents. In addition, ‘as much relevant information as possible on the proposed name’ is to be provided, ‘in particular sufficient identifying information to allow for the accurate and positive identification of individuals, groups, undertaking and entities, and to the extent possible, the information required by INTERPOL [International Police Organization] to issue a Special notice’: SC Res 2253 (2015). This includes, for individuals, information such as names, date, and place of birth, nationality, gender, aliases, employment, address, passport details, and biometric details. The Committee considers all complete requests for listing and reaches its decision by consensus. When a name is added to the list, a ‘narrative summary’ is placed on the Committee’s website, which sets out the reasons for the listing. Member states are to ‘take all possible measures, in accordance with their domestic laws and practices’ to notify the listed individual or entity of the listing, as well as the narrative summary of reasons for the listing, details concerning the effects of listing, and the procedures concerning requests for delisting: SC Res 2253 (2015). On the procedure of the 1267 Committee, see SC Res 2253 (2015); Guidelines of the Committee for the Conduct of its Work (adopted on 7 November 2002; last revised 15 April 2013). 133

  Member states, as well as listed individuals and entities, may submit a request for delisting. In so far as the 1267 Committee is concerned, a delisting request on the part of a member state should explain why the designation no longer meets the listing criteria, the designee’s occupation and activities, and supporting documents. If the request for delisting is made by the state that proposed the listing, the name will be removed from the list after 60 days, unless the Committee decides by consensus to maintain the listing, or the matter is referred to the Security Council to decide. If the request for delisting is made by a state other than the state that proposed the listing, the Committee’s usual procedure applies and any decision is taken by consensus. Requests for delisting on the part of individuals or entities are made through the Office of the Ombudsperson. Requests can be submitted ‘by, or on behalf of, an individual, group, undertaking or entity on the ISIL (Da’esh) & Al-Qaida Sanctions List or by the legal representative or estate of the individual, group, undertaking or entity’. Member states are not permitted to submit delisting requests on their behalf to the Ombudsperson. Upon receipt of a request for delisting, the Ombudsperson gathers information relating to the request from relevant states and UN bodies. A period of engagement follows, which may include dialogue with the individual or entity requesting delisting. The Ombudsperson then prepares a report, which summarizes the information that is relevant to the delisting, describes the activities he or she has undertaken with respect to the request, and sets out a recommendation to the Committee as to whether the individual or entity should remain on the list or be removed from the list. In cases in which the Ombudsperson recommends retention of the listing, listing shall continue unless a member of the Committee submits a delisting request, at which point the Committee will consider the request under its normal consensus procedures. In cases in which the Ombudsperson requests that the Committee consider delisting, the name will be removed from the list after 60 days, unless the

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Committee decides by consensus to maintain the listing, or the matter is referred to the Security Council to decide. See SC Res 2253 (2015), Annex II. In so far as other sanctions committees are concerned, member states may request that individuals or entities be delisted. Individuals and entities may also request delisting either directly to the Focal Point for Delisting, established pursuant to SC Res 1730 (2006), or through the state of residence or nationality. States may decide that any requests for delisting on the part of individuals or entities must be addressed to the Focal point. SC Res 1730 (2006), Annex, fn 1. Other sanctions committees do not have an Ombudsperson or equivalent, despite proposals from some states. 134

  More than 50 states expressed the need for due process and transparency in the listing and delisting procedures (reported in ‘Letter dated 1 December 2005 from the Chairman of the Security Council Committee established pursuant to resolution 1267 (1999) concerning Al-Qaida and the Taliban and associated individuals and entities addressed to the President of the Security Council’, UN Doc S/2005/761, para 37). See also the remarks of states to the briefing of the Chairman of the Al Qaeda and Taliban Sanctions Committee to the Security Council (UN Doc S/PV.5104 (17 December 2004)). The then Independent Expert on the protection of human rights and fundamental freedoms while countering terrorism also criticized the listing procedures for failing to establish ‘precise legal standards governing the inclusion of persons and groups on lists or the freezing of assets’ and for not mandating ‘safeguards or legal remedies to those mistakenly or wrongfully included on these lists’ (‘Protection of human rights and fundamental freedoms while countering terrorism’, UN Doc E/CN.4/2005/103, 21). An expert panel convened at a symposium on ‘Enhancing the Implementation of the United Nations Security Council Sanctions’ recommended that reform of the listing and delisting procedures was required, ‘to ensure that human rights and due process concerns are addressed’ (‘Enhancing the Implementation of United Nations Security Council Sanctions’, UN Doc S/2007/734, Annex, 5). Due process concerns continued to be expressed despite improvements in the listing, notification, and delisting procedures. See, eg, Ninth Report of the Analytical Support and Sanctions Monitoring Team submitted pursuant to Resolution 1822 (2008) concerning AlQaida and the Taliban and associated individuals and entities, UN Doc S/2009/245, 13 May 2009, para 47; Report of the Analytical Support and Sanctions Monitoring Team on outcome of comprehensive review, UN Doc S/2010/497, 29 September 2010, para 24; Thirteenth Report of the Analytical Support and Sanctions Implementation Monitoring Team submitted pursuant to resolution 1989 (2011) concerning Al-Qaida and associated individuals and entities, UN Doc S/2012/968, 31 December 2012. The establishment of the Ombudsperson, the mandate of which extends only to the 1267 listing, is the most robust procedural measure introduced by the Security Council. Nonetheless, the procedural approach in respect of the Ombudsperson remains open to criticism in certain respects. See, eg, European Commission and Council v Yassin Abdullah Kadi, Judgment of 18 July 2013, para 133; Nada v Switzerland [2012] ECHR 1691, para 211; Report of the Office of the Ombudsperson pursuant to Security Council resolution 2161 (2014), UN Doc S/2015/533; Willis, ‘Security Council Targeted Sanctions, Due Process and the 1267 Ombudsperson’ (2011) 42 Georgetown JIL 3. There is an extensive literature on the subject. See, eg, Fassbender, Targeted Sanctions and Due Process (Study Commissioned by the United Nations Office of Legal Affairs) (2006); Council of Europe, The European Convention on Human Rights, Due Process and United Nations Security Council Counter-Terrorism Sanctions: Report Prepared by Professor Iain Cameron (2006); Bianchi, ‘Assessing the Effectiveness of the UN Security Council’s AntiTerrorism Measures: The Quest for Legitimacy and Cohesion’ (2007) 17 EJIL 881; van den Herik, ‘The Security Council’s Targeted Sanctions Regimes: In Need of Better Protection of the Individual’ (2007) 20 LJIL 797; Hudson, ‘Not a Great Asset: The UN Security Council’s

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Counter-Terrorism Regime: Violating Human Rights’ (2007) 25 Berkeley JIL 203; Almqvist, ‘A Human Rights Critique of European Judicial Review: Counter-Terrorism Sanctions’ (2008) 57 ICLQ 303; Bothe, ‘Security Council’s Targeted Sanctions against Presumed Terrorists’ (2008) 6 JICJ 541; Tladi and Taylor, ‘On the Al Qaida/Taliban Sanctions Regime: Due Process and Sunsetting’ (2011) 10 Chinese JIL 771; Willis, ‘Security Council Targeted Sanctions, Due Process and the 1267 Ombudsperson’ (2011) 42 Georgetown JIL 673; Hovell, ‘Due Process in the United Nations’ (2016) 110 AJIL 1; Garvey, ‘Targeted Sanctions: Resolving the International Due Process Dilemma’ (2016) 50 Texas International Law Journal 4; Hovell, The Power of Process: The Value of Due Process in Security Council Sanctions Decision-Making (2016). 135

  See, eg, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda (Judgment) ICJ Rep 2005, p 168; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) ICJ Rep 2007, p 43; Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Judgment) ICJ Rep 2010, p 639; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) (Preliminary Objections, Judgment) ICJ Rep 2011, p 70; Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Judgment) ICJ Rep 2012, p 422; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (Judgment ) ICJ Rep 2015; Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (Advisory Opinion) ICJ Rep 1989, p 177; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) ICJ Rep 1996, p 226; Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) ICJ Rep 1999, p 62; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Rep 2004, p 136. 136

  The Resolution was adopted with 170 states in favour, 3 abstentions (Belarus, Iran, Venezuela), and 4 against (Israel, Marshall Islands, Palau, US). For explanations of votes, see UN Doc A/60/PV.72 (2006). 137

  The Commission was dissolved by ECOSOC pursuant to ECOSOC Res 2006/2. In GA Res 60/251 (2006), para 13, the General Assembly recommended that ECOSOC abolish the Commission on 16 June 2006. On the Commission, see Hoare, ‘The UN Commission on Human Rights’ in The International Protection of Human Rights (ed Luard, 1967) 59; van Boven, ‘The United Nations Commission on Human Rights and Violations of Human Rights and Fundamental Freedoms’ (1968) XV NILR 374; Schwelb and Alston, ‘The Principal Institutions and other Bodies Founded under the Charter’ in The International Dimensions of Human Rights (ed Vasak, 1982), 231, 243–51; Tolley Jr, The UN Commission on Human Rights (1987); Fareed, The United Nations Commission on Human Rights and its Work for Human Rights and Fundamental Freedoms (1977); Alston, ‘The Commission on Human Rights’ in Alston (ed), n 16, 126; Kedzia, ‘United Nations Mechanisms to Promote and Protect Human Rights’ in Human Rights: International Protection, Monitoring, Enforcement (ed Symonides, 2003), 10–19; Oberleitner, Global Human Rights Institutions (2007), 41–63; Boyle, ‘The United Nations Human Rights Council: Origins, Antecedents, and Prospects’ in New Institutions for Human Rights Protection (ed Boyle, 2009), 21–8. 138

  In his report, Secretary-General Kofi Annan noted that ‘the system for protecting human rights at the international level is today under considerable strain’ and that ‘[c]hange is needed if the United Nations is to sustain long-term, high-level engagement on human rights issues, across the range of the Organization’s work’: Report of the SecretaryGeneral, In larger freedom: towards development, security and human rights for all, UN Doc A/59/2005, 21 March 2005, para 141. The Secretary-General noted the achievements of

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the Commission, including standard setting, the attention paid to human rights issues, the special procedures, and engagement with civil society. However, the Secretary-General also noted (ibid, para 182) that ‘the Commission’s capacity to perform its tasks has been increasingly undermined by its declining credibility and professionalism. In particular, States have sought membership of the Commission not to strengthen human rights but to protect themselves against criticism or to criticize others. As a result, a credibility deficit has developed, which casts a shadow on the reputation of the United Nations system as a whole.’ This reiterated the point made in Report of the High-Level Panel on Threats, Challenges, and Change, A more secure world: our shared responsibility, UN Doc A/59/565, 2 December 2004, para 283. The Secretary-General took the view that the declining credibility of the Commission was such that ‘piecemeal reforms’ would not be enough: Secretary-General’s Address to the Commission on Human Rights, Geneva, 7 April 2005. The Commission had also lost the confidence of some states and NGOs. See, eg, the view of the Head of the US Delegation to the Human Rights Commission, Kirkpatrick, ‘UN Human Rights Panel Needs Some Entry Standards’, International Herald Tribune (14 May 2003); and the view of the Director of the NGO ‘Human Rights Watch’, Roth, ‘Despots Pretending to Spot and Shame Despots’, International Herald Tribune (17 April 2001). For a selection of views from states and NGOs, see ‘Commission on Human Rights Opens Sixty-First Session’, Press Release, HR/CN/1107 (2005); Steiner, Alston, and Goodman, International Human Rights in Context (2008), 791–9. Statements on the shortcomings of the Commission are also evident in the views of states expressed during consultations on reform proposals. See, eg, the position of the Group of African States, set out in Summary of the open-ended informal consultations held by the Commission on Human Rights pursuant to Economic and Social Council decision 2005/217, prepared by the Chairperson of the sixty-first session of the Commission, UN Doc A/59/847-E/2005/73, 21 June 2005, Part VI-A and B. However, not everyone shared the criticisms of the Commission. See generally Freedman, The United Nations Human Rights Council: A Critique and Early Assessment (2013), ch 1. Perceived politicization of the Commission thus seemingly brought about its downfall. Yet it is difficult to assess quite what is meant by politicization, particularly in a body that is, at least in part, political. See Oberleitner, n 137, 46–8; Boyle, n 137, 26; Clapham, ‘United Nations Charter-Based Protection of Human Rights’ in International Protection of Human Rights: A Textbook (eds Krause and Scheinin, 2009), 79, 94–5. It might seem curious that states that are accused of serious human rights abuses are members of a Commission that is designed to protect human rights, and there was certainly room for reform of the Commission. Nevertheless, when states concern themselves with human rights matters, there will inevitably be a degree of politicization. Given that politicization is part of the system, it is of little use to consider how to avoid it. Rather, the question ought to be how to deal with a politicized human rights system. Indeed, politicization was inevitable as early as 1947, when the decision was taken for members of the Commission to serve not as independent experts but as government representatives. The original intention was to reach agreement on the basic features of the Council prior to the 2005 World Summit and fill in certain details following the Summit. However, agreement could not be reached in time: Boyle, n 137, 30. Many of the consultations do not benefit from summary records. For the record of one consultation, see Summary of the open-ended informal consultations held by the Commission on Human Rights pursuant to Economic and Social Council decision 2005/217, prepared by the Chairperson of the sixtyfirst session of the Commission, UN Doc A/59/847-E/2005/73, 21 June 2005. See also the discussion of various state views in Halperin and Orentlicher, ‘The New UN Human Rights Council’ (2006) 13 Human Rights Brief 1. Accordingly, in the World Summit Outcome, the General Assembly approved the creation of a Human Rights Council but left all details to further negotiation: 2005 World Summit Outcome, GA Res 60/1 (2005), paras 157–61. See Scannella and Splinter, ‘The United Nations Human Rights Council: A Promise to be From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Fulfilled’ (2007) 7 HRLR 41, 47. On the reform proposals, see Ghanea, ‘From UN Commission on Human Rights to UN Human Rights Council: One Step Forwards or Two Steps Sideways?’ (2006) 55 ICLQ 695. 139

  GA Res 60/251 (2006), para 1.

The Secretary-General proposed the replacement of the Commission with a standing council, but left it up to member states of the UN to decide whether the new Council would be ‘a principal organ of the United Nations or a subsidiary body of the General Assembly’: In larger freedom: towards development, security and human rights for all, n 138, para 183. The Secretary-General indicated that ‘[t]he upgrading of the Commission on Human Rights into a full-fledged Council would raise human rights to the priority accorded to it in the Charter of the United Nations. Such a structure would offer architectural and conceptual clarity, since the United Nations already has Councils that deal with two other main purposes—security and development’: Report of the Secretary-General, In larger freedom: towards development, security and human rights all, Addendum, Human Rights Council, Explanatory Note by the Secretary-General, UN Doc A/59/2005/Add.1, 23 May 2005, para 1. In the view of the Secretary-General, ‘The creation of the Council would accord human rights a more authoritative position, corresponding to the primacy of human rights in the Charter of the United Nations.’ Report of the Secretary-General, In larger freedom: towards development, security and human rights for all, n 138, para 183. See also Report of the High-Level Panel on Threats, Challenges, and Change, A more secure world: our shared responsibility, n 138, para 291, in which the High-Level Panel on Threats, Challenges, and Change had taken the view that the Council should be a Charter body of equal importance to other Charter bodies and not a subsidiary body of the ECOSOC. Ultimately, states decided that the Council would be a subsidiary organ of the General Assembly rather than a principal organ of the UN. During consultations on point, some states took the view that the Council should have the status of a principal organ to cement the work of the UN on human rights issues; others took the view that creating the Council as a subsidiary organ of the General Assembly would strengthen and restore the General Assembly to its status as the principal deliberative organ; still others took the view that creation as a subsidiary organ of the General Assembly could prove a useful intermediary step prior to creation as a principal organ. See Summary of the open-ended informal consultations held by the Commission on Human Rights pursuant to Economic and Social Council decision 2005/217, prepared by the Chairperson of the sixty-first session of the Commission, UN Doc A/59/847-E/2005/73, 21 June 2005, paras 27–8. 140

  Creation of the Council by the General Assembly, and its position as a subsidiary organ of the General Assembly, confirms the importance of the General Assembly on human rights matters and demonstrates ECOSOC’s declining influence in this regard. It continues what the Secretary General noted in his report, In larger freedom, namely that ‘the Economic and Social Council has been too often relegated to the margins of global economic and social governance’: In larger freedom: towards development, security and human rights for all, n 138, para 165. On ECOSOC, see ch 5, ‘The Economic and Social Council’. 141

  In GA Res 60/251 (2006), para 1, the General Assembly indicated that it would ‘review the status of the Council within five years’ of its creation. Following the review, in GA Res 65/281 (2011), the General Assembly decided to ‘maintain the status’ of the Council as a subsidiary organ of the General Assembly ‘and to consider again the question of whether to maintain this status at an appropriate moment…no sooner than ten years and no later than fifteen years’.

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142

  GA Res 60/251 (2006), paras 7 and 8.

The Secretary-General had proposed a Council that would be composed of fewer members than the Commission, which, at the time of its abolition, consisted of 53 members: In larger freedom: towards development, security and human rights for all, Add.1, n 138, para 13. The High-Level Panel on Threats, Challenges and Change suggested that membership of the Council should be universal. In its view, ‘[t]his would underscore that all members are committed by the Charter to the promotion of human rights, and might help to focus attention back on to substantive issues rather than who is debating and voting on them’: A more secure world: our shared responsibility, n 139, para 285. The Panel also expressed the concern that, in relation to the Commission, ‘in recent years States have sought membership of the Commission not to strengthen human rights but to protect themselves against criticism or to criticize others’ (ibid, para 283). Thus, the Council is neither universal in membership, nor a significantly smaller body than the Commission. On the various views expressed during the consultation process, see Summary of the open-ended informal consultations held by the Commission on Human Rights pursuant to Economic and Social Council decision 2005/217, prepared by the Chairperson of the sixty-first session of the Commission, n 139, paras 29–30. Also at play in the debates surrounding the size of the Commission were such factors as: competition for places among those wishing to serve on the Commission and the associated influence of regional groups. 143

  GA Res 60/251 (2006), para 7. This prevents the possibility of de facto permanent seats.

The initial election process was staggered such that members would serve for a term of between one and three years. This was drawn by lot, bearing in mind the need for equitable geographical representation. See GA Res 60/251 (2006), para 14. There were no limits on states serving consecutive terms on the Commission. 144

  Members serving in their capacity as government representatives, as opposed to serving in an individual capacity, inevitably increases the likelihood of politicization of the body. When the Commission was created, its first members, the ‘nuclear’ commission, were appointed in their individual capacity: ‘Commission on Human Rights and Sub-Commission on the Status of Women’, UN Doc E/27 (1946). The nuclear commission was tasked with making recommendations on the future composition and work of the Commission: ECOSOC Res 5(I) (1946). Members of the ‘nuclear’ commission, aside from the individual from the USSR, considered that the permanent Commission should be composed of independent experts and not government representatives: ‘Report of the Commission on Human Rights to the Second Session of the Economic and Social Council’, UN Doc E/38 (1946) 8. When the matter came before ECOSOC, however, it was decided that individuals would be elected as government representatives: ECOSOC Res 9 (II) (1946). See Alston, ‘Reconceiving the UN Human Rights Regime: Challenges Confronting the New UN Human Rights Council’ (2006) 7 Melbourne JIL 185, 189–90; Lauren, ‘“To Preserve and Build on its Achievements and to Redress its Shortcomings”: The Journey from the Commission on Human Rights to the Human Rights Council’ (2007) 29 HRQ 307, 314. 145

  The Group of African States has 13 seats; the Group of Asian States has 13 seats; the Group of Eastern European states has 6 seats; the Group of Latin American and Caribbean states has 8 seats; the Group of Western European and Other States has 7 seats: GA Res 60/251 (2006), para 7. This stands in contrast to the composition of the Commission, with Asian and African states together forming a majority of the Council. The composition of the

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Council has reportedly had an impact on the work of the Council: Schmidt, ‘United Nations’ in International Human Rights Law (eds Moeckli, Shah, and Sivakumaran, 2010), 394. Regional groups often decide amongst themselves on the candidates to be elected, and put before the General Assembly as many names as there are seats. For example, in the elections of 2010, 14 candidates stood for 14 seats. In the elections of 2014, 17 candidates stood for 15 seats. Accordingly, election to the Council can be a formality. In this way, the ‘politicization’ of the elections to the Commission remains present in the Council. However, as candidates are elected on an individual basis, the possibility does exist that putting forward as many candidates as there are seats could nevertheless lead to a state’s failing to be elected by the General Assembly. 146

  GA Res 60/251 (2006), para 7.

In Report of the Secretary-General, In larger freedom: towards development, security and human rights for all, n 138, para 183, the Secretary-General proposed that election take place by two-thirds majority of the General Assembly. During consultations following that report, some states favoured the proposal, while others felt it would disadvantage developing states that could not undertake lobbying activities. A two-thirds majority was also considered to go against existing UN practice. See Summary of the open-ended informal consultations held by the Commission on Human Rights pursuant to Economic and Social Council decision 2005/217, prepared by the Chairperson of the sixty-first session of the Commission, n 139 para 34. 147

  GA Res 60/251 (2006), para 8. This stands in contrast to election to the Commission, which contained no such reference and the absence of which led to criticism. See ECOSOC Res 9(II) (1946). The Secretary-General had proposed that members of the Council ‘should undertake to abide by the highest human rights standards’. See Report of the Secretary-General, In larger freedom: towards development, security and human rights for all, n 138, para 183. Various other prerequisites had been suggested before a state could be elected to the Council, such as ratification of core human rights treaties, compliance with reporting obligations to the human rights treaty bodies, issuing a standing invitation to the special procedures mechanisms, and not being the subject of a negative resolution by the Commission on Human Rights. However, each of these criteria would have restricted very many states from becoming a member of the Commission and was considered unworkable. See Oberleitner, n 137, 45–6; Alston, n 144, 193–6; Alston, ‘Promoting the Accountability of Members of the New UN Human Rights Council’ (2005–6) 15 J Trans L Policy 49. It has been suggested that ‘[g]iven the track record of some of the members [of the Council] elected so far one might be forgiven for wondering whether such activities were taken into account as a disqualification’: Hampson, ‘An Overview of the Reform of the UN Human Rights Machinery’ (2007) 7 HRLR 7, at 14. However, the same author remarks that ‘some of the worst human rights offenders were not in fact elected’ (ibid). The same is true of reelection of members. Some states were not re-elected to the Council following a campaign led by NGOs, due to its human rights record. See Brett, Digging Foundations or Trenches? UN Human Rights Council: Year 2 (2008), 5. Civil society organizations frequently comment on the human rights records of states standing for election. 148

  GA Res 60/251 (2006), para 8.

This served as something of a compromise between those states that wanted a requirement that members of the Council should be ‘in compliance with their human rights obligations’ and those states that did not want candidature to be circumscribed by any human rights requirements. See Summary of the open-ended informal consultations held by the

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Commission on Human Rights pursuant to Economic and Social Council decision 2005/217, prepared by the Chairperson of the sixty-first session of the Commission, n 139, paras 32–3. These ‘voluntary pledges and commitments’ should set out how a state intends to uphold human rights both at a national and an international level. The OHCHR provided guidance on the pledges and commitments, encouraging states ‘to include specific, measurable and verifiable commitments’. See OHCHR, Suggested Elements for Voluntary Pledges and Commitments by Candidates for Election to the Human Rights Council (April 2006). In practice, candidates’ pledges and commitments have been mixed. Some pledges and commitments have been vague and opaque; others have been general; still others have been clear and specific. Yet other candidates did not make any pledges or commitments and were elected nonetheless. For the pledges, see http://www.ohchr.org/EN/HRBodies/HRC/ Pages/HRCElections.aspx. 149

  GA Res 60/251 (2006), para 9. See also HRC Res 5/1 (2007), para 8.

150

  GA Res 60/251 (2006), para 8.

151

  In February 2011, the Council recommended that the General Assembly, ‘in view of the gross and systematic violations of human rights by the Libyan authorities, consider the application of the measures foreseen in paragraph 8 of General Assembly resolution 60/251’: UN Doc A/HRC/RES/S-15/1 (2011). In March 2011, the General Assembly decided to suspend the rights of membership of Libya in the Council: GA Res 65/265 (2011). Some months later, in October 2011, the Council welcomed Libya’s commitments to ‘uphold its obligations under international human rights law, to promote and protect human rights, democracy and the rule of law, and to cooperate with relevant international human rights mechanisms, as well as the Office of the United Nations High Commissioner for Human Rights and the International Commission of Inquiry’, and recommended that the General Assembly lift the suspension: UN Doc A/HRC/RES/18/9 (2011). In November 2011, the General Assembly took note of the Council’s Resolution, welcomed Libya’s commitments, and decided to restore the rights of membership of Libya in the Council: GA Res 66/11 (2011). There have been calls for the rights of membership of other states to be suspended. However, nothing has come of them. See, eg, Amnesty International and Human Rights Watch, ‘Saudi Arabia: Joint NGO Statement: Suspend Saudi Arabia from the UN Human Rights Council’, 29 June 2016, available at https://www.amnesty.org/en/documents/ mde23/4345/2016/en/. 152

  HRC Res 5/1 (2011), Annex: VII. Rules of Procedure, Rule 9(a). Regard is to be had to equitable geographical rotation of the Presidency (ibid, Rule 9(b)). The four Vice-Presidents are elected ‘on the basis of equitable geographical distribution from the Regional Groups other than the one to which the President belongs’ (ibid, Rule 9(b)). 153

  ibid, Rule 11.

154

  ibid, Rules 9(a) and 10.

155

  GA Res 65/281 (2011), paras 54–6; HRC Res 16/21 (2011). The Office is designed to ‘support the President in the fulfilment of his or her tasks and to enhance efficiency, continuity and institutional memory in this regard’: GA Res 65/281 (2011), para 54. 156

  GA Res 60/251 (2006), para 10. The Council meets in March for a period of four weeks, in June for three weeks, and in September for three weeks. By contrast, the Commission sat for a single six-week period annually during March–April. The minimum term should be contrasted with other UN human rights mechanisms, for which a maximum term is often provided.

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157

  Clapham, n 138, 95.

158

  See para 22.74.

159

  GA Res 60/251 (2006) is supplemented by GA Res 65/281 (2011). The latter contains the ‘Outcome of the review of the work and functioning of the Human Rights Council’ and, inter alia, amends the workings of the Council. 160

  GA Res 60/251 (2006), paras 2 and 3. On responses to gross violations, see section 3.4.3, ‘Complaints procedure’. 161

  GA Res 60/251 (2006), para 4.

162

  GA Res 60/251 (2006), para 5. The functions are not exhaustive.

163

  See also in this regard, the role of the OHCHR, in section 4, ‘Office of the United Nations High Commissioner for Human Rights’. 164

  The Human Rights Council adopted, inter alia, the International Convention for the Protection of All Persons from Enforced Disappearances, the Declaration on the Rights of Indigenous Peoples, and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, and recommended them to the General Assembly. See HRC Res 1/1 (2006), Res 1/2 (2006), and Res 8/2 (2008). 165

  On which see section 3.4.1, ‘Universal Periodic Review’.

166

  On which see para 22.74.

167

  See section 4, ‘Office of the United Nations High Commissioner for Human Rights’.

168

  NGOs had considerable access to the Commission, at least as compared to other UN entities. The preamble to GA Res 60/251 (2006) acknowledges that ‘non-governmental organizations play an important role at the national, regional and international levels, in the promotion and protection of human rights’. At one point in the reform consultations, it was said that ‘The constructive participation by NGOs in the work of the Commission was considered by many to be one of its most valuable features and which should be retained.’ Summary of the open-ended informal consultations held by the Commission on Human Rights pursuant to Economic and Social Council decision 2005/217, prepared by the Chairperson of the sixty-first session of the Commission, n 139, para 23. See also Abraham, A New Chapter for Human Rights: A Handbook on Issues of Transition from the Commission on Human Rights to the Human Rights Council (2006) 10. Accordingly, GA Res 60/251 (2006), para 11, decided that involvement of, inter alia, NGOs should be based on the practices of the Commission on Human Rights, including EOSOC Res 1996/31 (1996). 169

  United Nations Human Rights Council Institution Building, UN Doc A/HRC/Res/5/1 (2007). 170

  HRC Res 16/21 (2011); GA Res 65/281 (2011).

171

  Swiss Confederation, The Human Rights Council: A Practical Guide (2015), 11.

172

  GA Res 60/251 (2006) contained little by way of information on the design and operation of the UPR mechanism. Accordingly, one of the Council’s first decisions was to ‘establish an intersessional open-ended intergovernmental working group to develop the modalities of the universal periodic review mechanism’: HRC Decision 1/103 (2006), para 1. 173

  GA Res 65/281 (2011), para 3.

One of the objections to the approach of the Commission on Human Rights was that the situation in only a few states accused of serious human rights violations was considered by the Commission. To some, this was objectionable, as it was developing countries that were brought before the Commission. Cuba described it as ‘an inquisition tribunal for the rich’.

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See ‘Commission on Human Rights Opens Sixty-First Session’, Press Release, HR/CN/1107 (2005). Various proposals for reform were put forward. After considerable discussion, a UPR mechanism was established. GA Res 60/251 (2006), para 5. Secretary-General Kofi Annan had proposed the idea of a peer review mechanism in a speech to the Commission on Human Rights: Secretary-General’s Address to the Commission on Human Rights, Geneva, 7 April 2005. In some respects, this is not an entirely novel mechanism. In 1956, ECOSOC requested UN member states ‘to transmit to the Secretary-General, every three years, a report describing developments and the progress achieved during the preceding three years in the field of human rights’. The Secretary-General would then prepare a summary for the Commission on Human Rights: ECOSOC Res 624B (XXII) (1956); Commission on Human Rights, Res I (1956). However, the procedure was abolished in 1980 as part of the abolition of all activities that were ‘obsolete, ineffective or of marginal usefulness’: GA Res 35/209 (1980); Commission on Human Rights, Decision 10 (XXXVII) (1981). On the procedure and its problems, see Alston, n 144, 207–14; Farer, ‘The United Nations and Human Rights: More than a Whimper Less than a Roar’ (1987) 9 HRQ 550, 573–4; Humphrey, ‘Human Rights: New Directions in the Human Rights Program’ (1958) 4 New York Law Forum 391, 392–3. 174

  GA Res 65/281 (2011), para 3. By contrast, the first UPR cycle was of four years’ duration, thus necessitating that 48 states underwent review each year: HRC Res 5/1 (2007), para 14. The decision as to which states would be reviewed during which session was taken by lot, bearing in mind, amongst other things, the need for an equitable geographical spread. The order of review for the first UPR cycle was maintained for the second cycle, and will continue to be maintained in future cycles: GA Res 65/281 (2011), para 4. A Voluntary Trust Fund was established in order to facilitate the participation of developing countries in the UPR process. See HRC Res 6/17 (2007); HRC, ‘Voluntary Fund for Participation in the Universal Periodic Review Mechanism’ (2008). In GA Res 65/281 (2011), para 14, the General Assembly indicated that the Trust Fund ‘should be strengthened and operationalized in order to encourage a significant participation of developing countries, particularly least developing countries and small island developing States, in their review’. 175

  HRC Res 5/1 (2007), para 4.

176

  HRC, Res 5/1 (2007), para 1. The voluntary pledges and commitments include those made by states standing for election to the Council. See Res 5/1 (1997), para 1(d). However, some concern was expressed regarding this inclusion, as going against the principles of ‘universality of coverage and equal treatment of states’: UN Doc A/HRC/4/CRP3 (2007), para 14. On the one hand, this risks reducing the likelihood of states’ making voluntary commitments. On the other hand, it prevents states from making such commitments if they have no intention of keeping them. Caution was also expressed over judging states against commitments arising from UN conferences and summits. It has been said that such commitments are difficult to identify, may lack universal support, and are inspirational rather than binding: UN Doc A/HRC/4/CRP3 (2007), para 17. See also the concern expressed by Bernaz, ‘Reforming the UN Human Rights Protection Procedures: A Legal Perspective on the Establishment of the Universal Periodic Review Mechanism’ in Boyle (ed), n 137, 75, 82–4, that certain voluntary pledges could water down a state’s obligation to take the very same action that was pledged.

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Assessment of performance in relation to human rights treaties to which the state is party risks overlap with the human rights treaty monitoring bodies. This is implicitly recognized in Res 5/1, which refers to the UPR mechanism as one that should ‘complement and not duplicate other human rights mechanisms, thus representing an added value’: HRC Res 5/1 (2007), para 3(f). Judging a state against a mix of binding and non-binding standards has also been criticized (Bernaz, ibid, at 79). The facilitator of the intersessional Working Group tasked with considering the modalities of the UPR mechanism proposed as a further standard customary international human rights law. However, no agreement could be reached on this suggestion. The facilitator also suggested the inclusion of domestic legislation as an appropriate standard against which to judge the state. See UN Doc A/HRC/4/CRP3 (2007), para 19. 177

  HRC Res 5/1 (2007).

The role of international humanitarian law in the process is not entirely clear. It is unclear whether the reference to ‘tak[ing] into account applicable international humanitarian law’ means that it may be used to interpret international human rights law obligations (which could be done without reference to international humanitarian law in the authorizing resolution), or whether states are to be judged as against their international humanitarian law obligations (in which case the wording ‘take into account’ is rather unhelpful). This wording reflects the compromise reached on point. For the views as to the role of international humanitarian law in this context, see UN Doc A/HRC/4/CRP3 (2007), para 15; ‘Non-Paper on the Universal Periodic Review Mechanism prepared under the auspices of the facilitator’ (27 April 2007); ‘Non-Paper on the Universal Periodic Review Mechanism’, UN Doc A/HRC/5/14 (2007). See also Bernaz, n 176, 78–9. 178

  Pursuant to HRC Res 5/1 (2007), ‘States are encouraged to prepare the information through a broad consultation process at the national level with all relevant stakeholders.’ Relatively few, however, have done so. See Gujadhur and Limon, ‘Towards the Third Cycle of the UPR: Stick or Twist? Lessons Learnt from the First Ten Years of the Universal Periodic Review’ (Universal Rights Group, July 2016), 22. The design of the process, with the inclusion of a state report, stands in contrast to some states’ concerns about reporting fatigue to the human rights treaty bodies. The page limits are intended to ‘guarantee equal treatment to all States and not to overburden the mechanism’: HRC Res 5/1 (2007), para 15(a). Reportedly, in the first UPR cycle, two states—Cape Verde and the Comoros—provided oral rather than written reports; South Africa presented its report on the day it underwent review, rather than the six weeks prior to review as required. See Brett, A Curate’s Egg, UN Human Rights Council: Year 3 (2009), 6; HRC Res 5/1 (2007), para 17. 179

  HRC Res 5/1 (2007), para 15. The reference to ‘other relevant stakeholders’ includes NGOs, national human rights institutions, and regional organizations. The OHCHR has issued guidance to stakeholders on the submission of information for the purposes of the report. See ‘Information and Guidelines for Relevant Stakeholders on the Universal Periodic Review Mechanism’ (July 2008); Universal Periodic Review (Third Cycle): Information and Guidelines for Relevant Stakeholders’ Written Submissions (August 2016). The summary contains a separate section for the contribution of the national human rights institution of the state undergoing review that is accredited in full compliance with the Paris Principles. GA Res 65/281 (2011), para 9.

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Reportedly, ‘[t]he OHCHR has established a complex in-house mechanism for the compilation of both this report and the compilation of UN information’: Schmidt, n 145, 396. For a personal account, see Billaud, ‘Keepers of the Truth: Producing “Transparent” Documents for the Universal Periodic Review’ in Human Rights and the Universal Periodic Review (eds Charlesworth and Larking, 2014). 180

  HRC Decision 6/102 (2007).

181

  HRC Res 5/1 (2007), para 18.

182

  A state drawn as a member of the troika can seek to be ‘excused from participation in a specific review process’. This might be for reasons of diplomacy if review by a particular state could have foreign policy implications. For example, Pakistan was drawn by lot as a member of the troika for India but declined to serve in that capacity. The state under review may ask for the substitution of one member of the troika. The state under review may also request that a member of its own regional group serve as one of the members of the troika. See HRC Res 5/1 (2007), paras 18–20. See also UN Doc A/HRC/OM/L.1 (2008). The troika is assisted in its work by the OHCHR: HRC Res 5/1 (2007), para 18(d). 183

  HRC Res 5/1 (2007), para 21. States that seek to pose questions and/or issues to the state undergoing review in advance of the review do so by relaying them to the Secretariat, which transmits them to the state undergoing review no later than 10 working days prior to the date of the review. The questions and/or issues are clustered by the troika along the lines of the content and structure of the report of the state undergoing review. Following transmittal to the state undergoing review, the questions and/or issues are circulated among member and observer states. HRC President’s Statement on Modalities and practices for the UPR Process, PRST/8/1 (2008), paras 1–4. However, relatively few questions and/or issues are posed in advance. See Brett, n 147, 12–13. Questions posed in advance to the state under review are available from the website on the UPR process: http://www.ohchr.org/EN/HRBodies/UPR/Pages/Documentation.aspx. 184

  HRC Res 5/1 (2007), para 3(g). Accordingly, the troika has been described as ‘more like a secretariat than an investigatory tribunal’: Clapham, n 138, 97. A fuller list of guiding principles for the UPR process is set out in HRC Res 5/1 (2007), para 3. On these guiding principles, see Callejon, ‘Developments at the Human Rights Council in 2007: A Reflection of its Ambivalence’ (2007) 7 HRLR 323, 335–6. 185

  HRC Decision 17/119 (2011), para 3. In GA Res 65/281 (2011), para 11, the General Assembly indicated that the duration of the meeting for the review ‘will be extended from the present three hours’, but left it to the Council to decide on the duration. 186

  HRC Decision 17/119 (2011), para 3; HRC President’s Statement on Modalities and Practices for the UPR Process, PRST/8/1 (2008), para 7. 187

  States have also drawn on their experiences from reporting to treaty bodies. See Brett, n 147, 11–12. 188

  If it proves impossible to accommodate all speakers within the three-and-a-half hours, the duration of speaking time is reduced to two minutes for all. If it still proves impossible to accommodate all speakers within the three-and-a-half hours, the ‘speaking time will be divided among all delegations inscribed so as to enable each and every speaker to take the floor’: HRC Decision 17/119 (2011), paras 5–7. Thus, eg, in the case of Switzerland’s UPR, the speaking time was 1 minute, 26 seconds: Kälin, ‘Ritual and Ritualism at the Universal Periodic Review: A Preliminary Appraisal’, in Charlesworth and Larking (eds), n 179, 26. On registration of speakers, see HRC Decision 17/119 (2011), para 8. This stands in contrast to the early years of the UPR, during which time some delegations were unable to speak due to lack of time and, due to the ‘first come, first served’ approach, states with ‘problematic

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human rights records’ sought to ‘get their “friends” to sign up early once the list of speakers was opened, leaving little time for critical voices’: Kälin, above, at 32. It has been said that ‘the vast majority of states reviewed under UPR have engaged in a constructive and open dialogue with the Council. Only a few have attempted to manipulate the dialogue by seeking to steer the discussion to marginal human rights issue’: Schmidt, n 145, 396. Another commentator notes that ‘states under review and Council members… have made serious efforts to give the process meaning and depth. The atmosphere has been constructive and the issues raised for scrutiny have addressed both strengths and weaknesses of the countries in question’: Boyle, n 137, 36. The same author notes that ‘What is most interesting and of longer term significance, has been the extent to which countries under review have been both self-critical and have accepted recommendations made by other states for positive action.…The frankness with which some countries accepted that they have human rights problems and agreed to address them is genuinely new and encouraging.’ A considerable number of states participate in the process. Kälin, above, at 30–1, notes that ‘during the first two sessions in the second cycle, most of the twenty-eight states under review received recommendations from between fifty and seventy-five states. Recommending states were not always the same: during these two sessions more than 130 countries took the floor to make recommendations.’ See also Brett, n 147, 12. However, concerns have also been expressed over the limited time available for states to make comments. It has been said that ‘what should be a dynamic space for peer-to-peer debate and exchange’ has turned into ‘a stale forum of rushed and often unconnected monologues’: Gujadhur and Limon, n 178, 26. It has also been noted that in certain instances, allies of the state undergoing review provide uniformly positive comments, giving the impression that the state is beyond reproach or that a position is broadly shared: Freedman, n 138, 269–70. The participation of states in the process is also uneven. When certain states undergo review, there is ‘standing-room only’; however, in other cases, only a couple of dozen states participate (ibid, 272). The UPRs may be viewed at http://www.un.org/webcast/unhrc/archive.asp. Readers are advised to watch the webcasts in order to make up their own mind as to the strengths and weaknesses of the process. 189

  On occasion, the state under review has negotiated with states making recommendations at the interactive dialogue to amend the language and/or content of the recommendation in the report of the Working Group. This has led to certain recommendations being watered down. Changes are noted in footnotes to the report of the Working Group. See, eg, Report of the Working Group on the Universal Periodic Review: Afghanistan, UN Doc A/HRC/12/9 (2009). See further Chauville, ‘The Universal Periodic Review’s First Cycle: Successes and Failures’ in Charlesworth and Larking (eds), n 179, 99; Collister, ‘Rituals and implementation in the Universal Periodic Review and the human rights treaty bodies’ in Charlesworth and Larking (eds), n 179, 111–12. 190

  HRC President’s Statement on Modalities and Practices for the UPR Process, PRST/8/1 (2008) paras 8–9. See also Letter from the President of the Human Rights Council to all Permanent Representatives to the United Nations Office in Geneva, 18 September 2013, noting that ‘the Working Group report is of a factual nature and should reflect what was said in the room by the State under review and participating delegations’, that the conclusions and recommendations contained in the report ‘reflect the position of the submitting State(s) and/or the State under review and they should not be construed as endorsed by the WG [Working Group] as a whole’, and that all recommendations are to be treated equally and listed only once in the Report. Pursuant to GA Res 65/281 (2011) para 15, ‘[t]he recommendations…should preferably be clustered thematically with the full

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involvement and consent of the State under review and the States that made the recommendation’. 191

  Certain recommendations have been ‘extremely vague, some to the point of not being implementable’; others have been unreasonably numerous: Schmidt, n 145, 396. For example, some recommendations state in general terms that a state should continue its efforts to protect and promote human rights, or continue to improve the rights of women, or ‘consider’ ratifying a particular treaty. The point should not be overstated, however, as many of the recommendations have been clear, appropriate, and constructive; and the precision of recommendations has improved over time. In the Letter from the President of the Human Rights Council to all Permanent Representatives to the United Nations Office in Geneva, 18 September 2013, the President reminded states that ‘all recommendations should focus on the human rights issues and comply with the basis of review as defined in Human Rights Council, Resolution. 5/1’. The number of recommendations made has also grown considerably, to the extent that ‘State delegations in Geneva regularly complain about being “overwhelmed” or “lost in a jungle” of recommendations’: Gujadhur and Limon, n 178, 4. For facts and figures of UPR recommendations, see http://www.upr-info.org/database/ statistics/. 192

  HRC Res 5/1, para 32. This takes place preferably before the plenary meeting of the Council. GA Res 65/281 (2011), para 16. Cf HRC President’s Statement on Modalities and Practices for the UPR Process, PRST/8/1 (2008), para 11. 193

  HRC Res 5/1, para 32; HRC President’s Statement on Modalities and Practices for the UPR Process, PRST/8/1 (2008), para 10. In practice, the typology of state reactions goes beyond noting and enjoying the support of the state. For example, some recommendations are identified as enjoying the support of the state ‘in part’; others are identified as not enjoying the support of the state. In one case, that of the Democratic People’s Republic of Korea in its first review, it initially appeared that the state did not accept a single recommendation. See Report of the Human Rights Council on its thirteenth session, UN Doc A/HRC/13/56 (2011) para 645. However, in an annex to its report for its second review, it indicated that a number of recommendations enjoyed the support of the state. In other instances, states have noted recommendations for spurious reasons, such as on the basis of the identity of the state that made them. See Chauville, n 189, 101. Too much should not be read into the number of recommendations that enjoy the support of the state, as a state might indicate its acceptance of a recommendation without having any intention of implementing it. Conversely, some recommendations that do not enjoy the support of the state have subsequently been implemented. 194

  It is considered ‘no sooner than 48 hours after the country review’. Thirty minutes are allocated for the adoption of each outcome report. See http://www.ohchr.org/EN/HRBodies/ UPR/Pages/BasicFacts.aspx. 195

  GA Res 65/281 (2011), para 12.

196

  See ‘Universal Periodic Review Segment in Human Rights Council Plenary Sessions: Technical Modalities’ (undated). See also http://www.ohchr.org/EN/HRBodies/UPR/Pages/ BasicFacts.aspx. Pursuant to GA Res 65/281 (2011), para 13, ‘[t]he national human rights institution of the State under review, consistent with the Paris Principles, shall be entitled to

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intervene immediately after the State under review during the adoption of the outcome of the review by the Council plenary’. 197

  HRC President’s Statement on Modalities and Practices for the UPR Process, PRST/8/1 (2008), para 14. The report includes ‘(i) Summary of the views expressed by the State under review in the plenary session of the Council before the adoption of the outcome, its replies to questions and issues not sufficiently addressed during the interactive dialogue, its views on conclusions and recommendations, its voluntary commitments and its concluding remarks; (ii) Summary of the views expressed on the outcome by Member and observer States of the Council; (iii) Summary of general comments made by other relevant stakeholders’. HRC PREST/9/2, Follow-up to President’s Statement 8/1. 198

  HRC President’s Statement on Modalities and Practices for the UPR Process, PRST/8/1 (2008), para 10. This should form part of the state’s report to the next UPR. Research carried out by the NGO ‘UPR Info’ found that, of the recommendations made during the first UPR cycle, 48 per cent had been fully or partly implemented two-and-a-half years after the review. This included 55 per cent of recommendations that enjoyed the acceptance of the state undergoing the review, as well as 19 per cent of recommendations that were noted by the state. See UPR Info, Beyond Promises: The Impact of the UPR on the Ground (2014). The latter figure reveals that even those recommendations that did not initially enjoy the acceptance of states might later be implemented. See further Gujadhur and Limon, n 178. 199

  HRC Res 5/1 (2007) Annex, para 4(a).

200

  GA Res 65/281 (2011), para 18. As of 24 June 2016, 63 states had done so. The reports are available at http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRImplementation.aspx. 201

  HRC Res 30/25 (2015). See further OHCHR, National Mechanisms for Reporting and Follow-Up (UN, 2016). Pursuant to HRC Res 16/21 (2011), para 17, in implementing recommendations, states are ‘encouraged to conduct broad consultations with all relevant stakeholders’. Some states have indeed established follow-up mechanisms at the domestic level. See Kälin, n 188, 38. 202

  HRC Decision 17/119 (2011), para 2. For example, the guidelines refer to inclusion of ‘Identification of achievements, best practices, challenges and constraints in relation to the implementation of accepted recommendations and the development of human rights situations in the State’ (emphasis added). For a practical guide, and best practices, on state reports, see UPR Info, Identifying Best Practices: An Analysis of National Reports (2015). 203

  For example, certain state reports prepared for the second UPR cycle refer to information and developments that took place prior to the first review rather than focusing on developments since the first review and the implementation of recommendations. 204

  See further para 22.180.

205

  This stands in contrast to the situation under the human rights treaty bodies, many states reports of which remain outstanding. See further para 22.182. During the second UPR cycle, one state, Israel, initially decided not to participate in the review on the scheduled date. It participated in its review on a later date. Following the initial decision of Israel not to participate, the HRC adopted a decision on the noncooperation of a state under review with the UPR mechanism, in which it set out a procedure to be followed in instances of non-cooperation. The procedure calls on the state under review to resume its cooperation with the UPR process, requests the President of the Council to ‘take all appropriate steps and measures, in accordance with his mandate, to urge the State under review to resume its cooperation’, requests the President to report to the Council on the results of his efforts, decides to consider ‘any steps that may be deemed appropriate’, and reschedules the UPR of the state concerned: HRC Decision OM/7/101 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

(2013). See also Report of the President of the Human Rights Council submitted in accordance with Council decision OM/7/1 of 29 January 2013, UN Doc A/HRC/23CRP.1, 5 June 2013. 206

  See, eg, Gujadhur and Limon, n 178, 2 (UPR ‘has assumed a central role in the international human rights promotion system, and is widely seen as a success’). See also Boyle, n 137, 36; Clapham, n 138, 98; Kälin and Künzli, The Law of International Human Rights Protection (2009) 247; Schmidt, n 145, 396–7. 207

  See http://www.ohchr.org/EN/HRBodies/SP/Pages/Welcomepage.aspx; Rudolf, ‘The Thematic Rapporteurs and Working Groups of the United Nations Commission on Human Rights’ (2000) 4 MPUNYB 283; Kedzia, n 137, 49–59; Nifosi, The UN Special Procedures in the Field of Human Rights (2005); Gutter, Thematic Procedures of the United Nations Commission on Human Rights and International Law (Intersentia, Antwerp, 2006); Ramcharan, The Protection Roles of UN Human Rights Special Procedures (2009); Special Issue (2011) 15 International Journal of Human Rights 155–337; Piccone, Catalysts for Change: How the UN’s Independent Experts Promote Human Rights (2012); Piccone, ‘The Future of the United Nations Special Procedures’ in Routledge Handbook of International Human Rights Law (eds Sheeran and Rodley, 2013). 208

  Swiss Confederation, n 171, 14. For discussion on the functions of special procedures, see paras 22.62–22.67. 209

  Originally, the differing designations served to indicate a difference in function, with special rapporteurs being considered more of a scrutiny mechanism, as opposed to independent experts who had more of an advisory function: Kedzia, n 137, 51. Furthermore, some independent experts could not receive individual communications or send out letters to states containing allegations of human rights violations: Swiss Confederation, n 171, 14. There was also a perception that the position of special rapporteur was ‘more important’ than that of independent expert (ibid). However, over time, the designation of special rapporteur as opposed to independent expert has come to be seen as having little practical significance. See Oberleitner, n 137, 54; Manual of Operations of the Special Procedures of the Human Rights Council (August 2008), fn 5 (‘[a]lthough the titles vary, there are no major differences in the general responsibilities and methods of work of Special Rapporteurs, Independent Experts, Working Groups, Representatives of the Secretary General and Special Representatives of the Secretary-General’). Working Groups consist of five experts, one from each UN regional group, one of whom is the chairperson-rapporteur. 210

  The Council was given the mandate to ‘review and, where necessary, improve and rationalize all mandates, mechanisms, functions and responsibilities of the Commission on Human Rights in order to maintain a system of special procedures, expert advice and a complaint procedure; the Council shall complete this review within one year after the holding of its first session’: GA Res 60/251 (2006), para 6. See also HRC Res 5/1 (2007), paras 54–64. As such, the special procedures mandates and the individual mandate holders were extended for a one-year period on a transitional basis until matters could be finalized. HRC Decision 1/102 (2006). 211

  As of October 2016, these included a Working Group on Arbitrary Detention; a Special Rapporteur in the field of cultural rights; a Special Rapporteur on the right to education; an Independent Expert on the promotion of a democratic and equitable international order; a Special Rapporteur on violence against women, its causes and consequences; and a Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea.

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A full list of the thematic and country mandates, and the most recent information, can be found on the website of the OHCHR at http://www.ohchr.org/EN/HRBodies/SP/Pages/ Welcomepage.aspx. 212

  An ad hoc Working Group of experts was established in 1967 to investigate allegations of torture and ill-treatment of prisoners and detainees in police custody in South Africa. See Commission on Human Rights, Res 2 (XXIII) (1967). A special rapporteur was also established in 1967 to study UN action on apartheid. See Commission on Human Rights Res 7 (XXIII). An ad hoc Working Group to inquire into the human rights situation in Chile followed in 1975. See Commission on Human Rights, Res 8 (XXXI) (1975). Although, at the time, these were viewed as ad hoc exceptions to the general non-consideration of the human rights situation in states, with hindsight they may be seen as early examples of consideration of country situations. A few years later, thematic special procedures were established. In 1980, a Working Group was established to examine questions relating to the enforced or involuntary disappearances of persons. A Special Rapporteur to consider questions relating to summary or arbitrary executions followed in 1982, and a Special Rapporteur to consider questions relating to torture in 1985. See respectively, Commission on Human Rights, Res 20 (XXXVI) (1980); Commission on Human Rights, Res 1982/29 (1982); Commission on Human Rights, Res 1985/33 (1985). On the history of the special procedures, see Bossuyt, ‘The Development of Special Procedures of the United Nations Commission on Human Rights’ (1985) 6 HRLJ 179; Rodley, ‘United Nations Action Procedures against “Disappearances”, Summary or Arbitrary Executions, and Torture’ (1986) 8 HRQ 700; Weissbrodt, ‘The Three “Theme” Special Rapporteurs of the UN Commission on Human Rights’ (1986) 80 AJIL 685; Kamminga, ‘The Thematic Procedures of the UN Commission on Human Rights’ (1987) 34 Neth IL Rev 299; Gutter, ‘Special Procedures and the Human Rights Council: Achievements and Challenges Ahead’ (2007) 7 HRLR 93; Ramcharan, n 207, 51–66; Gutter, n 207, ch III. 213

  The choice of which states are the subject of country mandates rests with the Council. Accordingly, there is much politicking and negotiation on any creation. Decisions of the former Commission on point led to accusations of double standards, and exacerbated tensions between states of the north and states of the south. On the creation of country mandates, see Oberleitner, n 137, 55–6. Accordingly, it was the existence of country mandates that proved particularly controversial during reform proposals, with a number of states proposing their abolition. See Tomuschat, Human Rights: Between Idealism and Realism (2008), 149. Some country mandates, eg those for Belarus and Cuba, were discontinued. Reportedly, ‘[t]hey were neither reviewed nor considered. They simply disappeared from the list of mandates annexed to the agreed document’. See Callejon, n 184, 325. However, in the case of Cuba, the special procedure mandate holder reportedly recommended its discontinuance. See Brett, Neither Mountain nor Molehill, UN Human Rights Council: One Year On (2007), 5. And the position of Special Rapporteur on the situation of human rights in Belarus was subsequently established by the Council. See UN Doc A/HRC/RES/20/13 (2012). The idea of country mandates was retained, and the Council has created new country mandates since its establishment. Indeed, it should be noted that, on occasion, states the subject of country rapporteurs have supported the retention of their mandates. This was reportedly the case with Burundi and Haiti. See Callejon, n 184, 339; Brett, n 147, 6. 214

  See, respectively, Secretary-General, Message to the Human Rights Council, 29 November 2006, quoted in Clapham, n 138, 92; Report on the ‘Rationalization of the Work of the Commission’, UN Doc E/CN.4/1999/104, para 17; Applicability of Article VI Section

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22 of the Convention on the Privileges and Immunities of the United Nations (Advisory Opinion) ICJ Rep 1989, p 177, para 53. For their part, the special procedure mandate holders have spoken of their ‘independence, impartiality and objectivity’, their ability to monitor the human rights situation in any country in relation to their mandates, their ability to act as an early warning system in relation to serious violations, and their ability to act quickly. See Report of the United Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights: Effective functioning of human rights mechanisms, UN Doc E/CN.4/2006/4 (2005), para 66. 215

  The special procedures were not designed with an overarching plan in mind. However, this flexibility has allowed mandate holders considerable scope for defining their own role. Holders of the special procedures mandates have said that ‘While it may never have been conceived as a “system”, the evolving collection of these procedures and mechanisms now clearly constitutes and functions as a system of human rights protection.’ Joint Declaration of the Independent Experts responsible for the Special Procedures for the Protection of Human Rights, UN Doc A/CONF.157/9 (1993), 3. The Vienna Declaration and Programme of Action refers to the ‘system of special procedures, rapporteurs, representatives, experts and working groups of the Commission’: see UN Doc A/CONF.157/23 (1993), para 95. As of 1994, special procedures mandate holders have met together on an annual basis to consider issues of cooperation, reform of working methods, and common issues affecting their work. For the report of the 2015 meeting, see UN Doc A/HRC/31/39 (2016). Since meeting together, joint visits, reports, and statements have increased. A Coordination Committee has also been created to aid coordination between the various mandate holders, and between the mandate holders and the OHCHR, the broader UN human rights system, and civil society. It was established in 2005 at the 12th Annual meeting of special procedures mandate holders: see UN Doc E/CN.4/2006/4; Manual of Operations of the Special Procedures of the Human Rights Council (2008), paras 109–14; http:// www.ohchr.org/EN/HRBodies/SP/CoordinationCommittee/Pages/ CCSpecialProceduresIndex.aspx. An Internal Advisory Procedure reviews the practices and working methods of the special procedures. The Committee can also review the conduct of an individual mandate holder. See Coordination Committee of Special Procedures, Internal Advisory Procedure to Review Practices and Working Methods (25 June 2008). 216

  Mandate holders are appointed through a competitive process. Following the publication of a list of upcoming vacancies and a call for candidates, interested persons and persons nominated by entities complete an application form and submit a letter of motivation: GA Res 65/281 (2011), para 22(b); HRC Res 16/21 (2011), Annex, para 22(b). Individuals may be nominated by governments, regional groups, international organizations or their offices, NGOs, human rights bodies, or individuals: HRC Res 5/1 (2007), Annex, para 42. To this list, HRC Res 16/21 (2011), Annex, para 22(a) added national human rights institutions in compliance with the Paris Principles. In ‘exceptional circumstances and if a particular post justifies it, the [Consultative] Group may consider additional candidates with equal or more suitable qualifications for the post’: GA Res 65/281 (2011), para 22(c); HRC Res 16/21 (2011), Annex, para 22(c). The Consultative Group is composed of five individuals, one from each of the five regional groups. Shortlisted candidates are interviewed by the Consultative Group ‘to ensure equal treatment of all candidates’: GA Res 65/281 (2011), para 22(c); HRC Res 16/21 (2011), Annex, para 22(c). The Consultative Group draws up ‘a list of candidates who possess the highest qualifications for the mandates in question and meet the general criteria and particular requirements’: HRC Res 5/1 (2007), para 47; see also paras 48–51 and n 217. The candidates are ranked, and reasons are provided for the recommendation. The recommendations are made public in a

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report of the Consultative Group. See, eg, Report of the Consultative Group to the President of the Human Rights Council relating to the vacancies of special procedures mandateholders to be appointed at the thirty-third session of the Human Rights Council (12 August 2016). ‘On the basis of the recommendations of the consultative group and following broad consultations, in particular through the regional coordinators’, the President of the Council identifies ‘an appropriate candidate for each vacancy’: HRC Res 5/1 (2007), para 52. If the President decides not to follow the order of priority proposed by the Consultative Group, the President is required to justify his or her decision: GA Res 65/281 (2011), Annex, para 22(d); HRC Res 16/21 (2011), para 22(d). This does happen on occasion. For example, in August 2016, the President of the Council indicated that, following consultations with states and other relevant stakeholders, ‘in four out of five cases, the candidate recommended and ranked first by the Consultative Group, for approval by the Council’ was proposed, while in the fifth case, the candidate ranked second was proposed. However, few details were given as to why the second-ranked candidate was proposed. See Letter of the President of the Human Rights Council to all Permanent Representatives to the United Nations Office at Geneva, 30 August 2016. The appointment of the mandate holder is complete upon the approval of the Council: HRC Res 5/1 (2007), para 53. The selection procedure should be contrasted with the position under the Commission, which was far less transparent and far less inclusive. Under the Commission, the Chair of the Commission would consult with the Bureau and appoint mandate holders. 217

  HRC Res 5/1 (2007) para 39. See also HRC Decision 6/102 (2007), setting out ‘technical and objective requirements for eligible candidates’ and guidance on, inter alia, qualifications and relevant expertise. 218

  HRC Res 5/1 (2007), para 45. In the case of thematic mandates, this will likely be an initial term of three years with renewal for a further three-year term. Renewal is presumed unless there is ‘persistent non-compliance’ with the Code of Conduct. See HRC President’s Statement, Terms of office of special procedures mandate holders, PRST/8/2 (2008). However, some states have attempted to prevent the renewal of certain mandate holders who were perceived to be particularly critical. See Brett, n 147, 4–5. The position in respect of country mandates is different. Pursuant to HRC Res 5/1 (2007), para 60, ‘[c]ountry mandate periods will be of one year’. However, they are regularly extended for periods of one year at a time. There are also exceptions to this general rule. For example, the position of Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 is scheduled to run ‘until the end of the Israeli occupation’ (Commission on Human Rights, Resolution 1993/2); the position of Independent Expert on the situation of human rights in Burundi existed until the creation of an independent national human rights commission HRC Res 9/19 (2008)); and the term of the Independent Expert on the situation of human rights in Somalia was extended for a period of two years (HRC Res 24/30 (2013)). Nonetheless, the six-year maximum also applies in respect of holders of country mandates. 219

  Accordingly, ‘[i]ndividuals holding decision-making positions in Government or in any other organization or entity which may give rise to a conflict of interest with the responsibilities inherent to the mandate’ may not be appointed: HRC Res 5/1 (2007), para 46. 220

  ibid.

221

  See ch 16, ‘United Nations Privileges and Immunities’. See, in particular, Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) ICJ Rep 1999, p 62; Applicability of Article VI, Section 22,

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of the Convention on the Privileges and Immunities of the United Nations (Advisory Opinion) ICJ Rep 1989, p 177. 222

  Code of Conduct for Special Procedures Mandate Holders of the Human Rights Council, annexed to HRC Res 5/2 (2007). See also HRC Res 11/11 (2009); GA Res 65/281 (2011). The Code of Conduct defines ‘the standards of ethical behaviour and professional conduct that…[mandate holders] shall observe whilst discharging their mandate’: Code, Art 1. Some of the provisions of the Code reflect the prior practices of mandate holders, such as acting in an independent capacity and exercising their functions in accordance with their mandate: Code, Art 3(a). Other provisions, however, could constrain the proper working of mandate holders, eg indicating that, in implementing their mandate, they are to ‘show restraint, moderation and discretion so as not to undermine the recognition of the independent nature of their mandate or the environment necessary to properly discharge the said mandate’: Code, Art 12(b). Accordingly, the Code of Conduct proved rather contentious. It was ‘[o]riginally proposed by states aiming to limit and monitor the special procedures’ and ‘entailed the risk of restricting their independence and room for manoeuvre’: Swiss Confederation, n 171, 14. The resolution endorsing the idea of a code, HRC Res 2/1 (2007), was adopted by 30 votes to 15, with two abstentions. The vast majority of states from the Asian and African Groups voted in favour of the resolution, while states from the Western European and Other States Group voted against it. In 2010, two states proposed the establishment of a legal committee ‘to evaluate state complaints of special rapporteurs’ noncompliance with the code’; however, the proposal was defeated. See Piccone, Catalysts for Change, n 207, 17 and 88–9. The Code of Conduct has been viewed unfavourably, as limiting the independence of mandate holders. See Joseph and Kyriakakis, ‘The United Nations and Human Rights’ in Research Handbook on International Human Rights Law (eds Joseph and McBeth, 2010), 16; Schmidt, n 145, 399; Oberleitner, n 137, 61; Callejon, n 184, 326. This was also the view of the mandate holders themselves. See UN Doc A/HRC/12/47 (2009), paras 18 and 20; ‘A Note by the Special Procedures Coordination Committee in Response to Discussions on a Code of Conduct and Annex: Possible Elements of a Code of Conduct’ (2007). Reportedly, however, the Code has proved ‘much less unwieldy in practice than was initially feared’: Swiss Confederation, n 171, 14. Nonetheless, some have said that ‘it has had a chilling effect on their ability—and that of the [OHCHR] staff—to speak out clearly against violations’: Piccone, ‘The Future of the United Nations Special Procedures’, n 207, 728. See generally Alston, ‘Hobbling the Monitors: Should UN Human Rights Monitors be Accountable?’ (2011) 52 Harv ILJ 563. 223

  See section 4.4.1, ‘Support to UN human rights mechanisms’. The Manual of Operations of the Special Procedures of the Human Rights Council (2008), para 21, notes that support includes ‘thematic, fact-finding, policy and legal expertise, research and analytical work, and administrative and logistical services’; see also ibid, para 22 and Appendix II. However, the support is rather limited considering the work being done by the special procedures. Indeed, one author describes the special procedures as ‘dramatically underresourced’: Piccone, Catalysts for Change, n 207, 4; see also ibid, at 15 and 47–52. Some mandate holders receive support from the institution in which they are based, such as research support from the university in which they are permanently employed. In HRC Res 16/21 (2011), para 31, the Council recognized ‘the importance of ensuring the provision of adequate and equitable funding…to support all special procedures according to their specific needs’, and requested the Secretary-General ‘to ensure the availability of adequate resources within the regular budget of the Office of the High Commissioner to support the full implementation by special procedures of their mandates’. This was endorsed by the General Assembly: GA Res 65/281 (2011), Annex, para 31. In the same resolutions, both the Council and the General Assembly also recognized the ‘continued need

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for extra-budgetary funding to support the work of the special procedures’, and welcomed further voluntary contributions of states. 224

  This means that they tend to be appointed from a relatively narrow group of individuals, such as university professors, who have another source of income. 225

  In the words of the mandate holders themselves, ‘Our task is clear: what we do is render the international norms that have been developed more operative. We do not merely deal with theoretical questions, but strive to enter into constructive dialogues with governments and to seek their cooper-ation as regards concrete situations, incidents and cases. The core of our work is to study and investigate in an objective manner with a view to understanding the situations and recommending to Governments solutions to overcome the problem of securing respect for human rights.’ (‘Joint Declaration of the Independent Experts responsible for the Special Procedures for the Protection of Human Rights’, UN Doc A/CONF.157/9 (1993), p 3). See also Manual of Operations of the Special Procedures of the Human Rights Council (2008), para 5, which notes that the ‘principal functions’ of the special procedures include: —  analyze the relevant thematic issue or country situation, including undertaking on-site missions; —  advise on the measures which should be taken by the Government(s) concerned and other relevant actors; —  alert United Nations organs and agencies, in particular, the HRC, and the international community in general to the need to address specific situations and issues. In this regard, they have a role in providing ‘early warning’ and encouraging preventive measures; —  advocate on behalf of the victims of violations through measures such as requesting urgent action by relevant States and calling upon Governments to respond to specific allegations of human rights violations and provide redress; —  activate and mobilize the international and national communities, and the HRC to address particular human rights issues and to encourage cooperation among Governments, civil society and inter-governmental organizations. —  Follow-up to recommendations. See further the Lund Statement to the United Nations Human Rights Council on the Human Rights Special Procedures, UN Doc A/HRC/5/18 (2007), Annex, paras 19–20: 19.  The functions of special procedures include the gathering and analysis of information and trends on emerging and actual human rights issues, acting upon the recommendations of human rights treaty bodies, contributing to the development of international standards, responding to urgent situations referred to them by the Human Rights Council, gathering and reacting to reliable information concerning allegations of human rights violations, reporting on State implementation of human rights obligations, identifying best practices, undertaking country visits, making recommendations for improved enforcement of human rights at the national level and communicating on behalf of victims. 20.  The special procedures are also attentive to the importance in their work of contributing to human rights education and training and to the dissemination of information on human rights. They communicate with, respond to and interact with

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civil society, national human rights institutions, non-governmental organisations, media and other actors in the implementation of their mandates. 226

  States issue invitations to mandate holders to visit the country, sometimes at the request of the mandate holder himself or herself. Pursuant to HRC Res 16/21 (2011), Annex, para 26, and GA Res 65/281 (2011), para 26, ‘States are urged to cooperate with and assist special procedures mandate holders by responding in a timely manner to requests for information and visits.’ Some states have provided standing invitations to thematic special procedures. As of September 2016, 117 UN member states and one non-member observer state had extended standing invitations. See http://spinternet.ohchr.org/_Layouts/SpecialProceduresInternet/ StandingInvitations.aspx. The percentage of states that have issued standing invitations varies considerably by UN regional group. The extension of a standing invitation is a suggested part of the voluntary commitments and pledges of a candidate for election to the HRC. See OHCHR, Suggested Elements for Voluntary Pledges and Commitments by Candidates for Election to the Human Rights Council (2006). The requirement of consent on the part of the state does mean that some visits are unable to take place due to lack of consent. Holders of country mandates are infrequently given authorization to conduct a visit. Some requests to visit by holders of thematic mandates are also refused, at times when visits are perhaps needed most. There are also cases of invitations being issued but then followed by significant delays in reaching agreement over the timing and terms of the visit. Special procedures coordinate requests to visit in order to avoid being played off against one another by states. According to the OHCHR, as at 1 August 2016, 167 out of 193 UN member states have been visited by at least one mandate holder. No requests have been made to visit 10 states. Requests have been made to 16 states, but visits have not taken place. See http:// www.ohchr.org/EN/HRBodies/SP/Pages/Statesnotyetvisited.aspx. 227

  On the selection of country visits, see Manual of Operations of the Special Procedures of the Human Rights Council (2008), para 57; Piccone, Catalysts for Change, n 207, 80–6. Certain selections of country visits have been criticized. See Freedman, n 138, 172. 228

  At an annual meeting of the special procedures, terms of reference were adopted for fact-finding missions of special procedures: UN Doc E/CN.4/1998/45, Appendix V. The Terms of Reference provide: During fact-finding missions, special rapporteurs or representatives of the Commission on Human Rights, as well as United Nations staff accompanying them, should be given the following guarantees and facilities by the Government that invited them to visit its country: (a)  Freedom of movement in the whole country, including facilitation of transport, in particular to restricted areas; (b)  Freedom of inquiry, in particular as regards: (i)  Access to all prisons, detention centres and places of interrogation; (ii)  Contacts with central and local authorities of all branches of government; (iii)  Contacts with representatives of non-governmental organizations, other private institutions and the media;

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(iv)  Confidential and unsupervised contact with witnesses and other private persons, including persons deprived of their liberty, considered necessary to fulfil the mandate of the special rapporteur; and (v)  Full access to all documentary material relevant to the mandate; (c)  Assurance by the Government that no persons, official or private individuals who have been in contact with the special rapporteur/ representative in relation to the mandate will for this reason suffer threats, harassment or punishment or be subjected to judicial proceedings; (d)  Appropriate security arrangements without, however, restricting the freedom of movement and inquiry referred to above; (e)  Extension of the same guarantees and facilities mentioned above to the appropriate United Nations staff who will assist the special rapporteur/ representative before, during and after the visit. Nonetheless, certain states on certain occasions do seek to restrict the access of the mandate holder, eg, not allowing confidential interviews with detainees. And visits have been cancelled on the basis that such limitations on the work of the special procedure would violate the terms of reference of the mission. See, eg, Situation of detainees at Guantanamo Bay, Report of the Chairperson-Rapporteur of the Working Group on Arbitrary Detention, Leila Zerrougui; the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy; the Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment, Manfred Nowak; the Special Rapporteur on freedom of religion or belief, Asma Jahangir; and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, UN Doc E/CN.4/2006/120 (2006), para 3. As Piccone, Catalysts for Change, n 207, 27 notes, ‘Granting exceptions to the standard terms of reference can provide a bad precedent for other rapporteurs, opening the door for states to insist on easier terms for the next visit.’ 229

  Art 11 of the Code of Conduct provides: Mandate-holders shall: (a)  Ensure that their visit is conducted in compliance with the terms of reference of their mandate; (b)  Ensure that their visit is conducted with the consent, or at the invitation, of the State concerned; (c)  Prepare their visit in close collaboration with the Permanent Mission of the concerned State accredited to the United Nations Office at Geneva except if another authority is designated for this purpose by the concerned State; (d)  Finalize the official programme of their visits directly with the host country officials with administrative and logistical back-up from the local United Nations Agency and/or Representative of the High Commissioner for Human Rights who may also assist in arranging private meetings; (e)  Seek to establish a dialogue with the relevant government authorities and with all other stakeholders, the promotion of dialogue and cooperation to ensure the full effectiveness of special procedures being a shared obligation of the mandate-holders, the concerned State and the said stakeholders;

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(f)  Have access upon their own request, in consultation with the Office of the High Commissioner for Human Rights and after a common understanding between the host Government and the mandate-holder, to official security protection during their visit, without prejudice to the privacy and confidentiality that mandate-holders require to fulfil their mandate. 230

  See Manual of Operations of the Special Procedures of the Human Rights Council (2008), paras 60–74. 231

  These acts include being pursued by national authorities following assistance given to special procedure mandate holders (see, eg, UN Doc A/HRC/30/29 (2015), para 20); intimidation and public stigmatization in the media for engagement with the UPR process (see, eg, UN Doc A/HRC/30/29 (2015), para 21); and detention following engagement with special procedure mandate holders (see, eg, UN Doc A/HRC/30/29 (2015), para 24). The Council has condemned all acts of intimidation and reprisals ‘against individuals and groups who seek to cooperate or have cooperated with the United Nations, its representatives and mechanisms in the field of human rights’: HRC Res 12/2 (2009). See also HRC Res 24/24 (2013), para 3. Pursuant to Res 24/24, a focal point has been designated to ‘engage with all stakeholders, in particular Member States, to promote the prevention of, protection against and accountability for, reprisals and intimidation related to cooperation with the United Nations, its representatives and mechanisms’. The Coordination Committee also maintains a record of cases of intimidation and reprisals, and the Secretary-General reports annually on cases of alleged intimidation and reprisals. See, eg, ‘Cooperation with the United Nations, its representatives and mechanisms in the field of human rights: Report of the Secretary-General’, UN Doc A/HRC/30/29 (2015). See also HRC Res 16/21 (2011), Annex, para 30; GA Res 65/281 (2011), Annex, para 30. 232

  This includes, eg, the release of prisoners and the improvement in the treatment of particular categories of persons. For concrete examples, see Piccone, Catalysts for Change, n 207, 28–30 and Appendix D. 233

  See further para 22.67. On country visits, see Piccone, Catalysts for Change, n 207, 21– 33 and 71–80. 234

  These include violations that have taken place, which are ongoing, or which have a high risk of occurring. Mandate holders sometimes also communicate with international organizations and non-state actors. Joint letters or urgent appeals are also made. On communications, see Rivera Díaz, ‘Victims, Communications and the Special Procedures of the UN Human Rights Council’ in The Special Procedures of the Human Rights Council (ed Cantú Rivera, 2015), 127. 235

  See http://www.ohchr.org/EN/HRBodies/SP/Pages/Communications.aspx.

236

  Details concerning the process are available on the website of the OHCHR at https:// spsubmission.ohchr.org/. The OHCHR sorts through communications and passes them on to the relevant mandate holder. The OHCHR plays an important role in this regard. Not only is it responsible for ensuring that the relevant communications find their way to the appropriate special procedure mandate holder, but it decides to which body the communication should be passed. It has been said that ‘attempts are made in the Secretariat to steer cases in the right direction. For example, in a case where domestic remedies have been exhausted, the Secretariat may process it under the Optional Protocol [to the International Covenant on Civil and Political Rights], while in one where they have not, it may be processed for the attention of the WGAD [Working Group on Arbitrary Detention].’ See Rodley, ‘The United Nations Human Rights Council, its Special Procedures,

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and its Relationship with the Treaty Bodies: Complementarity or Competition?’ in Boyle (ed), n 137, 64. 237

  See n 249.

238

  In so deciding, the mandate holder will have regard for the Code of Conduct. Art 9 of the Code, on letters of allegation, provides: With a view to achieving effectiveness and harmonization in the handling of letters of allegation by special procedures, mandate holders shall assess their conformity with reference to the following criteria: (a)  The communication should not be manifestly unfounded or politically motivated; (b)  The communication should contain a factual description of the alleged violations of human rights; (c)  The language in the communication should not be abusive; (d)  The communication should be submitted by a person or a group of persons claiming to be victim of violations or by any person or group of persons, including non-governmental organizations, acting in good faith in accordance with principles of human rights, and free from politically motivated stands or contrary to the provisions of the Charter of the United Nations, and claiming to have direct or reliable knowledge of those violations substantiated by clear information; (e)  The communication should not be exclusively based on reports disseminated by mass media. Art 10, on urgent appeals, provides that ‘Mandate holders may resort to urgent appeals in cases where the alleged violations are time-sensitive in terms of involving loss of life, lifethreatening situations or either imminent or ongoing damage of a very grave nature to victims that cannot be addressed in a timely manner by the procedure under article 9 of the present Code.’ See also Manual of Operations of the Special Procedures of the Human Rights Council (2008), paras 40–8. 239

  The proportion of responses varies considerably between the different mandates, as well as between UN regional groups. For some figures, see Communications report of Special Procedures, UN Doc A/HRC/33/32, 9 September 2016; Piccone, Catalysts for Change, n 207, 36–8. As noted by Piccone (ibid, at 35), ‘a government’s failure to respond in writing does not indicate that the communication has had no effect. Government officials, NGO representatives, and special procedures themselves have asserted that some communications have prompted action on a matter even though the government provided no official written response.’ Nonetheless, Piccone concludes that the communications mechanism ‘has a generally disappointing record of influence on the state concerned’. 240

  See Commission on Human Rights, Res 1997/50, para 7. Where the same communication has also been submitted to the Human Rights Committee, the Working Group has deferred to the Committee. See Arredondo Guevara v Peru, UN Doc E/CN. 4/2001/14/Add.1 (2000); Rodley, n 236, 64. 241

  For example, the Working Group on Arbitrary Detention developed ‘Basic Principles and Guidelines on the right of anyone deprived of their liberty to bring proceedings before a court’, WGAD/CRP.1/2015 (2015). The Principles and Guidelines were drawn up pursuant to HRC Res 20/16 (2012), in which the Council requested the Working Group to ‘prepare draft basic principles and guidelines on remedies and procedures on the right of anyone deprived From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

of his or her liberty…with the aim of assisting Member States in fulfilling their obligation to avoid arbitrary deprivation of liberty in compliance with international human rights law’. For his part, the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment prepared a compilation of best practices in the area. See UN Doc A/HRC/28/61 (2015). 242

  See, eg, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, Addendum: Study on targeted killings, UN Doc A/HRC/14/24/Add. 6 (2010). 243

  Other entities include the High Commissioner for Human Rights, members of the HRC, members of the human rights treaty bodies, intergovernmental organizations, and national human rights institutions. For example, the Special Rapporteur on the human rights of internally displaced persons has participated in an Arria-formula meeting of the Security Council, as has the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. See further Report of the twenty-second annual meeting of special rapporteurs/representatives, independent experts and working groups of the special procedures of the Human Rights Council (Geneva, 8–12 June 2015), including updated information on the special procedures, UN Doc A/HRC/31/39 (2016), paras 21–7. 244

  See http://www.ohchr.org/EN/HRBodies/SP/Pages/SeminarsConsultations.aspx.

245

  ‘Follow-up’ has been described as ‘measures taken to encourage, facilitate and monitor the implementation of recommendations by any of the Special Procedures’: Manual of Operations of the Special Procedures of the Human Rights Council (2008), para 88. Until recently, follow-up was relatively rare. Indeed, follow-up to recommendations and communications of the special procedures has been described as ‘the biggest challenge facing the special procedures’ system’: Ramcharan, n 207, 176. See also Piccone, Catalysts for Change, n 207, 99 and 123, referring to it as the ‘Achilles’ heel of the mechanism’ and ‘an embarrassment to the UN human rights system’. For early examples of follow-up reports, see Report of the Special Rapporteur on torture, Theo van Boven, UN Doc E/CN. 4/2005/62/Add.2 (2005); Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, UN Doc E/CN.4/2006/53/Add.2 (2006). More recently, greater systematic attention has been paid to following up on reports of special procedures. See ‘Note by the OHCHR on recent practices in follow-up to Special Procedures’ activities’ (2010); Manual of Operations of the Special Procedures of the Human Rights Council (2008), Part III; Ramcharan, n 207, 177–8. 246

  Pursuant to HRC Res 16/21 (2011), Annex, para 25, and GA Res 65/281 (2011), para 25, mandate holders shall ‘endeavour to formulate their recommendations in a concrete, comprehensive and action-oriented way and pay attention to the technical assistance and capacity-building needs of States in their thematic and country mission reports. The comments of the state concerned shall be included as an addendum to country mission reports.’ The same resolutions, at para 26, provide that states are ‘to study carefully the conclusions and recommendations addressed to them by the special procedures mandate holders’. 247

  Discussion lasts for one hour. It has been said that, at the Council, ‘the level of participation—the number of delegations in the room, the fact that in many cases the ambassador was present as well as the number asking questions or making comments—was unprecedented compared with the Commission’: Brett, Neither Mountain nor Molehill, n 213, 8. However, time is limited, and there is frequently lack of proper engagement with the report. One author notes that ‘the interactive dialogue, a redundant term in itself, is typically neither interactive nor a dialogue. Groups of mandate holders are called to take turns giving short oral summaries of their latest activities, followed by a series of prepared statements by diplomats. These sometimes devolve into one-way diatribes aimed at attacking the rapporteur’s findings or methods of work, with allegations of violations of the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Code of Conduct thrown in for good measure’: Piccone, Catalysts for Change, n 207, 52. By contrast, most special procedures consider there to be ‘a more substantive and serious interaction during official dialogues with diplomats in New York, where regional blocs tend to be less rigid and polarized than in Geneva’ (ibid, 67). Webcasts of the various inter-active dialogues are available to view at http://www.un.org/ webcast/unhrc/. Readers are recommended to view such dialogues to make up their own minds as to the advantages and disadvantages of the process. 248

  HRC Res 5/1 (2007), para 85. GA Res 60/251 (2006), para 3, decided that the Council ‘should address situations of violations of human rights, including gross and systematic violations, and make recommendations thereon’. There is no opting out of the complaints procedure; nor does it depend on the consent of the state concerned. 249

  The communication must not be ‘manifestly politically motivated’, and it must be consistent with the UN Charter, the UDHR, and other international instruments. It must provide a ‘factual description of the alleged violations, including the rights which are alleged to be violated’, and it cannot be ‘exclusively based on reports disseminated by mass media’. The communication must have been submitted by a victim of the violations, or by a person or persons, including NGOs, ‘claiming to have direct and reliable knowledge of the violations concerned’. Domestic remedies should have been exhausted, unless it appears that they would be ‘ineffective or unreasonably prolonged’. The communication must not ‘refer to a case that appears to reveal a consistent pattern of gross and reliably attested violations of human rights already being dealt with by a special procedure, a treaty body or other United Nations or similar regional complaints procedure in the field of human rights’: HRC Res 5/1 (2007), para 87. 250

  ECOSOC Res 1503 (XLVIII) (1970), as revised by ECOSOC Res 2000/3 (2000). HRC Res 5/1 (2007), para 86, notes that the 1503 procedure served as the basis for the procedure before the Council. On the 1503 procedure, see Tardu, ‘United Nations Response to Gross Violations of Human Rights: The 1503 Procedure’ (1980) 20 Santa Clara Law Review 559; Schwelb and Alston, n 137, 270–7; Tolley Jr, ‘The Concealed Crack in the Citadel: The United Nations Commission on Human Rights’ Response to Confidential Communications’ (1984) 6 HRQ 420; Nowak, ‘Country-Oriented Human Rights Protection by the UN Commission on Human Rights and its Sub-Commission’ (1991) XXII NYIL 39, 45–76; Alston, n 137, 145–55; Ize-Charrin, ‘1503: A Serious Procedure’ in International Human Rights Monitoring Mechanisms: Essays in Honour of Jakob Th Möller (eds Alfredsson et al, 2001), 293; Kedzia, n 137, 65–71. A second procedure that operated under the auspices of the Commission—the 1235 procedure—focused on a consistent pattern of human rights violations. See ECOSOC Res 1235 (XLII) (1967). On the 1235 procedure, see Schwelb and Alston, n 55, 270–7; Nowak, above, 76–80; Alston, n 137, 155–73; Boekle, ‘Western States, the UN Commission on Human Rights, and the “1235 Procedure”: The Question of Bias Revisited’ (1995) 13 NQHR 367; Kedzia, n 137, 65–71. 251

  The communications are registered and summarized in monthly listings. A list of communications that are screened out is compiled and proved to the other members of the Working Group, together with reasons for the rejection. See HRC Res 5/1 (2007), para 94. 252

  One individual from each of the UN regional groups is appointed to the Working Group. The Working Group meets twice a year, for a period of five days each time. See HRC Res 5/1 (2007), paras 91–5, 100.

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253

  HRC Res 5/1 (2007), para 95. Communications may be kept under review should further information be required. 254

  HRC Res 5/1 (2007), para 95. The Working Group on Situations comprises five members of the HRC. Each UN regional group appoints one representative to the Working Group (ibid, para 96). Members of the Working Group serve in their individual capacity (ibid, para 97). As with the Working Group on Communications, the Working Group on Situations meets twice a year for five days each time (ibid, para 100). It has been said that ‘At the fourth session of the [Working Group on Communications] in March/April 2009, the working group had before it 40 files of communications relating to 23 states.…However, only two communications were transmitted to the [Working Group on Situations] for further action. The remaining communications were either kept pending, postponed, or expressly discontinued. The Council itself has taken action on very few communications.’ Schmidt, n 145, 402. 255

  HRC Res 5/1 (2007), para 98. The Working Group on Situations may keep the matter under review if further information is required. It may also choose to dismiss a case (ibid). All decisions are to be justified and ‘indicate why the consideration of a situation has been discontinued or action recommended thereon. Decisions to discontinue should be taken by consensus; if that is not possible, by simply majority of the votes’ (ibid, para 99). 256

  ibid, para 109. If the Working Group on Situations recommends to the Council that the situation be considered at a public meeting of the Council, the Council ‘shall consider such recommendation on a priority basis at its next session’ (ibid, para 104). In a large number of instances, the Council has decided to discontinue consideration of the human rights situation in the state in question, or has kept it under review and discontinued consideration a year later. See, eg, Report of the Human Rights Council on its ninth session, UN Doc A/HRC/9/28 (2008), para 177; Report of the Human Rights Council on its tenth session, UN Doc A/HRC/10/29 (2009), para 245; Report of the Human Rights Council on its twenty-seventh session, UN Doc A/HRC/27/2 (2014), para 308. Only on a few occasions has the Council recommended that the OHCHR provide technical cooperation or capacitybuilding assistance. See Report of the Human Rights Council on its eighteenth session, UN Doc A/HRC/18/2 (2011), para 210; Report of the Human Rights Council on its twentieth session, UN Doc A/HRC/20/2 (2012), para 212. Exceptionally, with respect to the situation of human rights in Eritrea, the Council decided to discontinue review of the matter under the confidential procedure in order to take up public consideration of the same matter in the context of the appointment of a Special Rapporteur on the situation of human rights in Eritrea. The documentation considered by the Council under the complaint procedure was transmitted to the special rapporteur. The Council also invited the Special Rapporteur to investigate further the allegations: HRC Res 21/1 (2012). Given the extremely limited information made public, it is difficult to assess the decisions of the Council in this regard. The process also stands in contrast to the otherwise relatively transparent operation of the Council. It has been suggested that ‘[a]lthough most situations have been discontinued, the impact of the complaint procedure should not be underrated. Ninety-four per cent of states respond to the communications submitted to them. The confidential nature of the procedure may also encourage states to take remedial action in order to avoid public scrutiny’: Connors and Schmidt, ‘United Nations’ in Moeckli, Shah, and Sivakumaran (eds), n 51, 371. 257

  HRC Res 5/1 (2007), paras 106–8. This differs from the 1503 procedure, which did not inform the author of the complaint of either aspect.

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258

  HRC Res 5/1 (2007), para 105. One of the criticisms of the 1503 procedure was the length of time it took to reach a conclusion. 259

  GA Res 60/251 (2006), para 10. For procedural matters relating to the convening of special sessions, see HRC Res 5/1 (2007), paras 119–28. This stands in contrast to the Commission. Only in 1990 did ECOSOC grant the Commission competence to hold special sessions: ECOSOC Res 1990/48. One half of Commission members had to agree to the holding of the session. 260

  As of September 2016, there have been 24 special sessions of the Council. These have related primarily to the human rights situation in specific countries or incidents, as well as, on occasion, thematic sessions. They have included the human rights situation in the Occupied Palestinian Territory; human rights in Lebanon resulting from Israeli military operations; the human rights situation in Darfur; the negative impact on the realization of the right to food by the worsening of the world food crisis; and the human rights situation in the Syrian Arab Republic. In contrast, the Commission held five special sessions in relation to: the former Yugoslavia (August and December 1992), Rwanda (1994), East Timor (1999), and violations of the human rights of the Palestinian people by Israel (2000). See Boyle, n 137, 40. 261

  See Commissions of Inquiry and Fact-Finding Missions on International Human Rights and Humanitarian Law: Guidance and Practice (2015). 262

  For example, the mandate of the United Nations Independent Investigation on Burundi (UNIIB) includes the following: (a)  To undertake swiftly an investigation into violations and abuses of human rights with a view to preventing further deterioration of the human rights situation; (b)  To make recommendations on the improvement of the human rights situation and on technical assistance to support reconciliation and the implementation of the Arusha Agreement; (c)  To engage with the Burundian authorities and all other relevant stakeholders, including United Nations agencies, civil society, refugees, the field presence of the Office of the High Commissioner in Burundi, authorities of the African Union, and the African Commission on Human and Peoples’ Rights, in particular with a view to help the State to fulfil its human rights obligations, to ensure accountability for human rights violations and abuses, including by identifying alleged perpetrators, to adopt appropriate transitional justice measures and to maintain the spirit of the Arusha Agreement. (HRC Res S-24/1 (2015)) By contrast, the mandate of the Commission on Human Rights in South Sudan is: (a)  To monitor and report on the situation of human rights in South Sudan and make recommendations for its improvement; (b)  To assess past reports on the situation of human rights since December 2013 in order to establish a factual basis for transitional justice and reconciliation; (c)  To provide guidance on transitional justice, accountability, reconciliation and healing, as appropriate, and—once the transitional Government of national unity is fully formed, operational and commits to ending the violence against the civilian population and to cooperating with the hybrid court for South Sudan—to make recommendations on technical assistance to the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

transitional Government of national unity to support transitional justice, accountability, reconciliation and healing; (d)  To engage with other international and regional mechanisms, including the United Nations, the United Nations Mission in South Sudan, the African Union and its African Commission on Human and Peoples’ Rights, the Joint Monitoring and Evaluation Commission Chair and civil society, with a view to providing support to national, regional and international efforts to promote accountability for human rights violations and abuses. (HRC Res 31/20 (2016)) 263

  For example, in the case of the Independent International Commission of Inquiry on the Syrian Arab Republic, the Council requested the Secretary-General and the High Commissioner ‘to provide the full administrative, technical and logistical support needed to enable the commission of inquiry to carry out its mandate’: HRC Res S-17/1 (2011). 264

  For example, in the case of Sri Lanka, the Council requested the OHCHR, inter alia, to ‘undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka during the period covered by the Lessons Learnt and Reconciliation Commission, and to establish the facts and circumstances of such alleged violations and of the crimes perpetrated with a view to avoiding impunity and ensuring accountability, with assistance from relevant experts and special procedures mandate holders’: HRC Res 25/1 (2014). 265

  HRC Res 5/1 (2007), para 65.

The Sub-Commission on the Promotion and Protection of Human Rights, on which see n 266, consisted of 26 members. The Sub-Commission had suggested that, if it were to be replaced, the number of its members should not be ‘dramatically increased or decreased’: Sub-Commission on the Promotion and Protection of Human Rights, Decision 2006/112, para 27, in UN Doc A/HRC/2/2-A/HRC/Sub.1/58/36 (11 September 2006), 84. 266

  Prior to 1999, the Sub-Commission on the Promotion and Protection of Human Rights was known as the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities. On the Sub-Commission, see Hoare, ‘The UN Commission on Human Rights’ in The International Protection of Human Rights (ed Luard, 1967), 70–6; Schwelb and Alston, n 55, 251–3; Eide, ‘The Sub-Commission on Prevention of Discrimination and Protection of Minorities’ in Alston (ed), n 16, 211; Kedzia, n 137,19–22; Oberleitner, n 137, 71; International Service for Human Rights, Charter-Based Bodies: Sub-Commission on the Promotion and Protection of Human Rights (2004). 267

  States may only nominate individuals from their own geographical region. States are recommended to consult with national human rights institutions and human rights NGOs on candidates for nomination: HRC Res 5/1 (2007), para 66. By contrast, the High-Level Panel had suggested that nominations should be made by the Secretary-General and the High Commissioner for Human Rights: A more secure world: our shared responsibility, Report of the High-Level Panel on Threats, Challenges and Change, UN Doc A/59/565, 2 December 2004, para 287. 268

  HRC Res 5/1 (2007), para 67.

269

  HRC Res 5/1 (2007), para 68. See also HRC Decision 6/102 (2007).

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This represents an improvement on election to the Sub-Commission, which did not have any prerequisites. However, the extent to which it is a success depends on the extent to which these prerequisites are followed by nominating states and electing states. Rule 2 of the Rules of Procedure of the Human Rights Council Advisory Committee provides that ‘During their term of office, members of the Advisory Committee shall not perform any function that is incompatible with the requirements of independence and impartiality and which might give rise to a conflict of interest with the responsibilities inherent to the mandate.’ Rules of Procedure (2009), UN Doc A/HRC/AC/3/2, Annex III. 270

  HRC Res 5/1 (2007), para 70.

271

  HRC Res 5/1 (2007) para 73. The Group of African States has five seats; the Group of Asian States has five seats; the Group of Eastern European States has two seats; the Group of Latin American and Caribbean States has three seats; and the Group of Western European and Other States has three seats. 272

  HRC Res 5/1 (2007), para 72.

273

  HRC Res 5/1 (2007), para 74. The terms of office of the initial members were staggered for one-, two- and three-year periods, respectively. Members of the Sub-Commission served for a term of four years. 274

  HRC Res5/1 (2007), para 68.

275

  HRC Res 5/1 (2007), para 79. Pursuant to GA Res 65/281 (2011), ‘[i]n order to provide a proper setting for a better interaction between the Council and its Advisory Committee’, the first annual session of the Advisory Committee takes place immediately prior to the March session of the Council and its second session takes place in August. At the time of the dissolution of the Sub-Commission, that body met for a single session of two weeks annually; however, it had previously met for three weeks annually. See Commission on Human Rights, Res 2001/60 (2001). The Advisory Committee is not entitled to create subsidiary bodies without the permission of the Council. See HRC Res 5/1 (2007), paras 81– 2. 276

  Unless the Council designates another meeting place: Rules of Procedure (2009), UN Doc A/HRC/AC/3/2, Annex III, Rule 12(2). 277

  HRC Res 5/1 (2007), para 79.

278

  HRC Res 5/1 (2007), paras 81 and 82. In GA Res 65/281 (2011), the General Assembly indicated that ‘[t]he Advisory Committee shall endeavour to enhance intersessional work between its members’. 279

  HRC Res 5/1 (2007), para 83.

Following the procedure set out in ECOSOC Res 1996/31, NGOs may participate in the work of the Advisory Committee. Participating NGOs may submit a written statement to the Advisory Committee; NGOs accredited to the relevant session of the Advisory Committee may make an oral statement. 280

  HRC Res 5/1 (2007), para 75. For example, the Council requested the Advisory Committee to recommend measures on the realization of the right to food: HRC Res 7/14 (2008). The Council subsequently requested the Advisory Committee to undertake a study on discrimination and the right to food: HRC Res 10/12 (2009). The Advisory Committee submitted the recommendations and a preliminary study to the Council. See Advisory Committee, Recommendation 2/7 (2009) and UN Doc A/HRC/13/32 (2010).

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The Council requested the Advisory Committee to prepare principles and guidelines on the elimination of discrimination against persons with leprosy, on the basis of a report to be prepared by the OHCHR: HRC Res 8/13 (2008). The Advisory Committee prepared such principles and guidelines and transmitted them to the Council. See UN Doc A/HRC/AC/3/2. The Council circulated the principles and guidelines amongst relevant actors and ascertained their views. The Advisory Committee was then tasked with reviewing the principles and guidelines, bearing in mind the views of the relevant actors. For the revised principles and guidelines, see Advisory Committee, Recommendation 5/2 (2010). In addition to these concrete requests, the HRC has requested the Advisory Committee, inter alia, to implement a gender perspective in its work (HRC Res 6/30 (2007)) and to consider relevant aspects of the human rights of civilians in armed conflict in its work (HRC Res 9/9 (2008)). On the work of the Committee, see http://www.ohchr.org/EN/HRBodies/HRC/ AdvisoryCommittee/Pages/AboutAC.aspx. 281

  HRC Res 5/1 (2007), para 76. In GA Res 65/281 (2011), the General Assembly indicated that ‘The Council shall endeavour to clarify specific mandates given to the Advisory Committee under relevant resolutions, including indicating thematic priorities, and provide specific guidelines for the Advisory Committee with a view to triggering implementationoriented outputs.’ 282

  See para 22.70.

283

  Para 75 of HRC Res 5/1 (2007) provides that ‘The function of the Advisory Committee is to provide expertise to the Council in the manner and form requested by the Council, focusing mainly on studies and research-based advice. Further, such expertise shall be rendered only upon the latter’s request, in compliance with its resolutions and under its guidance.’ (emphasis added) Para 81 prohibits the Advisory Committee from establishing subsidiary bodies without the consent of the Council. By contrast, the former Sub-Commission had suggested that there was a need for ‘a representative independent expert body that is able to think collectively, free from specialized mandate constraints and political considerations, in order to initiate and pursue new and innovative thinking in human rights standards and implementation’: SubCommission on the Promotion and Protection of Human Rights, Decision 2005/114, Annex, para 6. 284

  HRC Res 5/1 (2007), para 77.

At one time, the Sub-Commission adopted country-specific resolutions. However, the Commission abolished this possibility in 2000. See Commission on Human Rights, Decision 2000/109, Annex, para 52, in UN Doc E/2000/23-E/CN.4/2000/167 (2000), 373. 285

  HRC Res 5/1 (2007), paras 75–8.

The former Sub-Commission not infrequently undertook studies and the like on its own initiative, eg, early drafts of the Declaration on the Rights of Indigenous Peoples and the International Convention for the Protection of All Persons from Enforced Disappearances. Hampson, ‘An Overview of the Reform of the UN Human Rights Machinery’ (2007) 7 HRLR 7, 21. However, this possibility was also limited in the latter years of the Sub-Commission’s life. See Commission on Human Rights, Res 2005/53, para 8(c). 286

  A certain tension arose between the Commission on Human Rights and the SubCommission on the Promotion and Protection of Human Rights. For example, the Commission occasionally took the view that the Sub-Commission had overstepped its mandate, eg, in directly addressing other UN entities. See Eide, n 266, 255–6; Lebakine, ‘Some Reflections on the Rules and Procedures Followed by the Sub-Commission for the Promotion and Protection of Human Rights’ in Human Rights and Criminal Justice for the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Downtrodden: Essays in Honour of Asbjorn Eide (ed Bergsmo, 2003), 655; Kedzia, n 137, 20. 287

  HRC Res 6/36 (2007). It was established following informal discussions on how best to continue the work of the Working Group on Indigenous Populations. The informal discussions included the input of indigenous groups. See HRC Res 6/16 (2007) and the various proposals at IMMWGIP/2007/CRP.1 through to IMMWGIP/2007/CRP.12. On the Expert Mechanism and its work, see http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/ Pages/EMRIPIndex.aspx; Expert workshop to review the mandate of the Expert Mechanism on the Rights of Indigenous Peoples: Report of the Office of the United Nations High Commissioner for Human Rights, UN Doc A/HRC/32/26 (10 May 2016). 288

  Created pursuant to ECOSOC Res 1982/34.

289

  The experts are chosen in the same manner as the special procedures mandate holders (see section 3.4.2, ‘Special procedures’), with due regard being given to ‘experts of indigenous origin’: HRC Res 6/36 (2007). 290

  It has included a Study on lessons learned and challenges to achieve the implementation of the right of indigenous peoples to education, UN Doc A/HRC/12/33 (2009) and advice on how the right may be realised, Expert Mechanism Advice No 1 (2009) on the Rights of Indigenous Peoples to Education, UN Doc A/HRC/12/33 (2009), Annex. See further Thematic Advice of the Expert Mechanism on the Rights of Indigenous Peoples: A Compilation (2009–2013). 291

  Other attendees of past sessions have included observers from states, national human rights institutions, UN mandates, mechanisms, bodies, specialized agencies, funds, and programmes (such as the ILO and UN Indigenous Peoples’ Partnership), intergovernmental and regional organizations (such as the EU), academics and experts on indigenous issues, NGOs, and indigenous nations, peoples, and organizations. 292

  ECOSOC Res 1995/31 (1995). See also HRC Res 6/15 (2007). On the Working Group, see Eide, ‘Minorities at the United Nations: From Standard-Setting to the Working Group on Minorities’ in Alfredsson et al (eds), n 31, 69. 293

  Alfredsson, ‘Minority Rights: Norms and Institutions’ in Boyle (ed), n 137, 175, 203.

294

  HRC Res 6/15 (2007). See also HRC Res 19/23 (2012). The Forum is open to participation by states, UN entities, intergovernmental organizations, ‘regional organizations and mechanisms in the field of human rights’, national human rights institutions and relevant national bodies, ‘academics and experts on minority issues’, and certain NGOs: HRC Res 6/15. On the Forum, see Alfredsson, n 293, 203–4. 295

  HRC Res 6/15 (2007); HRC Res 19/23 (2012). This limited period for discussion does not fit with the scope of the mandate of the Forum. One explanation that has been given for this mismatch is that the Working Group was abolished, as it ‘generated too much trouble and embarrassment to governments’: Alfredsson, n 293, 204. 296

  HRC Res 6/15 (2007). See United Nations Forum on Minority Issues: Compilation of Recommendations of the First Four Sessions 2008 to 2011 (OHCHR, undated). 297

  This stands in contrast with the Working Group, which would report directly to the SubCommission. 298

  Commission on Human Rights, Decision 2003/170; Sub-Commission on the Promotion and Protection of Human Rights, Res 2001/24. On the Forum, see Pitts III, ‘The First UN Social Forum: History and Analysis’ (2002–3) 31 Denver Journal of International Law and Policy 297.

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299

  Sub-Commission on the Promotion and Protection of Human Rights, Resolution 2001/24; HRC Res 6/13 (2007). 300

  HRC Res 6/13 (2007). For example, the focus of the 2017 meeting of the Forum will be ‘the promotion and protection of human rights in the context of the HIV epidemic and other communicable diseases and epidemics’: HRC Res 32/27 (2016). The 2016 meeting of the Forum focused on ‘the promotion and full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities’: HRC Res 29/19 (2015). 301

  HRC Res 6/13 (2007), para 5.

302

  HRC Res 17/4 (2011), para 13.

303

  ibid, para 12.

304

  ibid, para 14.

305

  HRC Res 28/14 (2015), para 3.

306

  ibid, para 1.

307

  ibid, para 1.

308

  ibid, para 4. The first Forum was held from 21–22 November 2016, with the theme ‘Widening the Democratic Space: The Role of Youth in Public Decision-Making’. See http:// www.ohchr.org/EN/HRBodies/HRC/Democracy/Pages/ForumDemocracy.aspx. 309

  This differs from entities termed Working Groups but that fall within the category of special procedures. See section 3.4.2, ‘Special procedures’. 310

  Created by Commission on Human Rights, Res 1998/72; ECOSOC Decision 1998/269. A High-Level Taskforce on the implementation of the right to development was established to provide assistance and expertise to the Working Group. See Commission on Human Rights, Res 2004/7; ECOSOC Decision 2004/249. The HRC renewed the mandate of the Working Group and the High-Level Taskforce. See HRC Res 1/4 (2006) and R 4/4 (2007). 311

  Created by Commission on Human Rights, Res 2002/68; ECOSOC Decision 2002/270. The Working Group was established as a follow-up mechanism to the Durban Declaration and Programme of Action. The mandate of the Intergovernmental Working Group was extended by the Council. See HRC Res 1/5 (2006). 312

  Created pursuant to HRC Res 15/26 (2010).The Working Group has the mandate ‘to consider the possibility of elaborating an international regulatory framework, including, inter alia, the option of elaborating a legally binding instrument on the regulation, monitoring and oversight of the activities of private military and security companies, including their accountability, taking into consideration the principles, main elements and draft text as proposed by the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to selfdetermination’. The mandate of the Working Group has been extended periodically. See HRC Res 22/33 (2013); Res 28/7 (2015). 313

  Created pursuant to HRC Res 21/19 (2012). The Working Group has the mandate to negotiate, finalize, and submit a draft declaration on the rights of peasants and other people working in rural areas. 314

  Created pursuant to HRC Res 26/9 (2014). The Working Group has the mandate to ‘elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises’.

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315

  Created pursuant to HRC Decision 3/103 (2006). The Ad hoc Committee is mandated to elaborate ‘complementary standards in the form of either a convention or additional protocol(s) to the International Convention on the Elimination of All Forms of Racial Discrimination, filling the existing gaps in the Convention, and also providing new normative standards aimed at combating all forms of contemporary racism, including incitement to racial and religious hatred’. See HRC Decision 3/103 (2006) and Res 6/21 (2007). On the background to the creation of the Committee, see the note by the OHCHR: UN Doc A/HRC/AC.1/1/2 (2008). The Ad hoc Committee is the de facto successor to the Group of Experts mandated to consider the same subject matter. The Intergovernmental Working Group on the effective implementation of the Durban Declaration and Programme of Action recommended the creation of a Group of Experts to consider gaps in ‘international instruments to combat racism, racial discrimination, xenophobia and related intolerance’. See UN Doc E/CN. 4/2006/18, para 108. The HRC requested the Group of Experts to provide recommendations to fill any gaps. See HRC Res 1/5 (2006). A study on point was submitted by the Group of Experts to the Human Rights Council: UN Doc A/HRC/4/WG.3/6 (2007). 316

  These bring together various entities working in the field of human rights, such as states, NGOs, national human rights institutions, and special procedure mandate holders. 317

  See the reports of the regular sessions of the HRC.

318

  The first High Commissioner described the post as ‘a dream almost as old as the United Nations’: UN Doc A/49/36 (1994), para 6. As early as 1947, a related idea had been put forward, that of a UN Attorney-General or a UN ombudsman. See the proposal of René Cassin, UN Doc E/CN.4/AC.4/1 (1947); the proposal of the Consultative Council of Jewish Organizations, UN Doc E/CN.4/NGO/6 (1950), in Moskowitz, Human Rights and World Order: The Struggle for Human Rights in the United Nations (1958), 137–51; and the proposal of Uruguay, UN Doc E/CN.4/549 (1951). However, these proposals related to assisting victims in submitting individual complaints rather than the broader role of the existing post of High Commissioner. As such, and though related, they are different from the present position of High Commissioner. See generally, Clark, A United Nations High Commissioner for Human Rights (1972), 39–44. In 1965, Costa Rica submitted a draft resolution on a High Commissioner to the General Assembly, having made similar proposals to the Commission on Human Rights and ECOSOC. See 1965 UNYB 494–5. The General Assembly decided to request ECOSOC to refer the matter to the Commission on Human Rights for its consideration: GA Res 2062 (XX) (1965). The Commission on Human Rights convened a Working Group to study the question. See 1966 UNYB 480. The Commission on Human Rights recommended that ECOSOC recommend to the General Assembly the creation of a ‘United Nations High Commissioner’s Office for Human Rights’, a recommendation that ECOSOC went on to make. See Commission on Human Rights, Res 14 (XXIII); ECOSOC Res 1237 (XLII); 1967 UNYB 531–2. ECOSOC also requested the Secretary-General bring the issue to the attention of states: ECOSOC Res 1238 (XLII). Between 1967 and 1973, the General Assembly failed to consider the issue. See the UN Year Books 1967–73. In 1973, the General Assembly noted that further measures were needed to ensure the realization of human rights, and decided to keep under review alternative methods by which this might be achieved; however, there was no mention of the post of High Commissioner for Human Rights: GA Res 3136 (XXVIII) (1973). The possibility of the creation of the post of High Commissioner continued to be debated in various fora, and the issue was taken up once again in 1977 in the Third Committee of the General Assembly. A draft resolution of 24 states proposed the creation of the position of High Commissioner, but after much discussion the Third Committee sent the matter back to the Commission on Human Rights for consideration. The matter continued to be considered over the years in the General From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Assembly, its Third Committee, the Commission on Human Rights, and the Sub-Commission on the Prevention of Discrimination, without any final decision being taken. On these early proposals, see Etra, ‘International Protection of Human Rights: The Proposal for a UN High Commissioner’ (1966) 5 Columbia Journal of Transnational Law 150; MacDonald, ‘The United Nations High Commissioner for Human Rights’ (1967) 5 CYIL 84; Clark, ibid; MacDonald, ‘A United Nations High Commissioner for Human Rights: The Decline and Fall of an Initiative’ (1972) 10 CYIL 40; Rycroft, ‘The United Nations High Commissioner for Human Rights: A Proposed International Government Control Agency’ (1972–3) 4 Rutgers-Camden LJ 237; Humphrey, ‘A United Nations High Commissioner for Human Rights: The Birth of an Initiative’ (1973) 11 CYIL 220; Lord, ‘The United Nations High Commissioner for Human Rights: Challenges and Opportunities’ (1994–5) 17 Loyola of Los Angeles International and Comparative LJ 329, 329–48; Hobbins, ‘Humphrey and the High Commissioner: The Genesis of the Office of the UN High Commissioner for Human Rights’ (2001) 3 Journal of the History of International Law 38; van Boven, ‘The United Nations High Commissioner for Human Rights: The History of a Contested Project’ (2007) 20 LJIL 767. 319

  On the negotiations leading up to the General Assembly resolution, see Clapham, ‘Creating the High Commissioner for Human Rights: The Outside Story’ (1994) 5 EJIL 556; Lord, n 318, 348–54. 320

  The World Conference on Human Rights had recommended to the General Assembly that, ‘when examining the report of the Conference…it begin, as a matter of priority, consideration of the question of the establishment of a High Commissioner for Human Rights’. Vienna Declaration and Programme of Action, UN Doc A/CONF.157/23 (1993), pt II, para 18. On the World Conference, see para 22.228. 321

  GA Res 48/141 (1993).

322

  The Centre for Human Rights was an upgraded version of the Division of Human Rights, which was based in New York until 1974. The Division was upgraded to a Centre in 1982 following several requests for such an upgrade (eg GA Res 34/47 (1979)). The post of Director of the Centre was lower in status than the heads of other UN entities, such as the High Commissioner for Refugees. On the Centre for Human Rights and the Division of Human Rights, see van Boven, ‘The Role of the United Nations Secretariat’ in Alston (ed), n 16, 559–77; Humphrey, Human Rights and the United Nations: A Great Adventure (1984); Humphrey, No Distant Millennium: The International Law of Human Rights (1989). 89–92; Schmidt, ‘Achieving Much with Little: The Work of the United Nations Centre for Human Rights’ (1990) 8 NQHR 371. 323

  ‘Renewing the United Nations: A Programme for Reform’, UN Doc A/51/950, para 79.

A separate Office of the High Commissioner and Human Rights Centre with an unclear division of responsibility between them led to difficulties, with tensions existing between the two entities. See Alston, ‘Neither Fish nor Fowl: The Quest to Define the Role of the UN High Commissioner for Human Rights’ (1997) 2 EJIL 321, 325. 324

  On the Secretariat, see ch 15, ‘The United Nations Secretariat and Secretary-General’.

325

  GA Res 48/141 (1993), para 4.

326

  ibid.

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327

  Secretary-General’s Bulletin, Organization of the Office of the United Nations High Commissioner for Human Rights, ST/SGB/1997/10, section 3.1. 328

  See section 4.4, ‘Mandate and work’.

329

  GA Res 48/141 (1993), para 5. The HRC replaced the Commission on Human Rights, to which the Resolution refers. Although the Resolution requires the High Commissioner to report on his/her activities, he/she reports on the activities of the Office. The OHCHR also briefs the President of the Security Council on a monthly basis on the human rights situation in countries on the agenda of the Security Council. Hannum, ‘The United Nations and Human Rights’ in Krause and Scheinin (eds), n 138, 76. 330

  GA Res 48/141 (1993), para 2(a).

331

  ibid, para 2(b).

332

  ibid, para 2(b).

333

  For example, Mary Robinson served as High Commissioner between 1997 and 2002; Navanethem Pillay served between 2008 and 2014, her term being renewed for a period of two years in 2012. The current High Commissioner, Zeid Ra’ad Al Hussein, was appointed in September 2014. As of February 2017, no High Commissioner had served for the full term of office allowed by the Resolution. 334

  GA Res 48/141 (1993), para 2(c).

335

  The Deputy High Commissioner carries out the tasks requested by the High Commissioner and is accountable to the High Commissioner. Secretary-General’s Bulletin, Organization of the Office of the United Nations High Commissioner for Human Rights, ST/ SGB/1997/10, section 4. 336

  GA Res 48/141 (1993) para 6; Secretary-General’s Bulletin, n 335, section 7. In December 2009, the General Assembly upgraded the post of the head of the New York office to one at the level of Assistant Secretary-General. On the New York Office, see n 796. 337

  OHCHR, United Nations Human Rights Appeal 2017 (February 2017) 42–3. On field presences, see section 4.4.2.1, ‘Human rights field presences’. According to two former OHCHR officials, ‘there has been an identifiable shift in emphasis away from headquarters’: Connors and Schmidt, n 256, 389. 338

  The structure of the OHCHR and the names of the divisions/sections change periodically. Up-to-date information can be found in the annual reports of the OHCHR. This section utilizes the OHCHR Report 2015 (2016), Annex IV: OHCHR organization chart. For an early (and considerably different) structure of the Office, see Secretary-General’s Bulletin, n 335, ss 8–10. 339

  The Division undertakes policy development and provides guidance on thematic issues, including human rights mainstreaming. OHCHR Report 2015 (2016), 43. 340

  The Division supports the work of the treaty bodies. See further para 22.102.

341

  The Division oversees and implements the work of the OHCHR in the field. OHCHR Report 2015 (2016), 43. 342

  The Division supports the work of the Council. See further paras 22.100 and 22.102.

343

  The Research and Right to Development Division contains two branches: the ‘Development and Economic and Social Issues Branch’; and the ‘Rule of Law, Equality and Non-Discrimination Branch’. The ‘Field Operations and Technical Cooperation Division’ is split into the ‘Africa Branch’; the ‘Americas, Europe and Central Asia Branch’; the ‘Asia, Pacific, Middle East and North Africa Branch’; the ‘Emergency Response Section’; the ‘National Institutions, Regional Mechanisms and Civil Society Section’; and the ‘Peace Missions Support Section’ (which is based in New York). The ‘Human Rights Council From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Mechanisms Division’ is separated into the ‘Human Rights Council Branch’; the ‘Special Procedures Branch’; and the ‘Universal Periodic Review Branch’. The Human Rights Treaties Division has four sections: the ‘Civil, Political, Economic, Social and Cultural Rights Section’; the ‘Groups in Focus Section’; the ‘Capacity-Building and Harmonization Section’; and the ‘Petitions and Inquiries Section’. OHCHR Report 2015 (2016), Annex IV: OHCHR organization chart. 344

  ibid, 44.

345

  ibid, 44.

346

  Footnotes 347–352 are not contained in the original resolution.

347

  The categories of rights were listed in alphabetical order so as to avoid any debate on a hierarchy of rights. 348

  See section 4.4.5.2, ‘Right to development’.

349

  On advisory services and technical assistance, see section 4.4.2.2, ‘Technical cooperation’. 350

  On human rights education, see section 4.4.5.1.

351

  On co-ordination of human rights within the UN, see para 22.97.

352

  On the Centre for Human Rights, see para 22.88.

353

  Secretary-General’s Bulletin, n 335, section 3.2. In the Secretary-General’s Bulletin, the functions of the Office are listed: (a)  Promotes universal enjoyment of all human rights by giving practical effect to the will and resolve of the world community as expressed by the United Nations; (b)  Plays the leading role on human rights issues and emphasizes the importance of human rights at the international and national levels; (c)  Promotes international cooperation for human rights; (d)  Stimulates and coordinates action for human rights throughout the United Nations system; (e)  Promotes universal ratification and implementation of international standards; (f)  Assists in the development of new norms; (g)  Supports human rights organs and treaty monitoring bodies; (h)  Responds to serious violations of human rights; (i)  Undertakes preventive human rights action; (j)  Promotes the establishment of national human rights infrastructures; (k)  Undertakes human rights field activities and operations; (l)  Provides education, information advisory services and technical assistance in the field of human rights. The OHCHR also draws guidance from the UDHR and subsequent instruments, as well as the 2005 World Summit Outcome. See OHCHR, High Commissioner’s Strategic Management Plan 2010–11, 3.

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354

  Secretary-General’s Bulletin, n 335, section 3.2.

355

  The OHCHR 2015 Report (2016), 247, describes the High Commissioner as ‘the principal advocate for human rights in the United Nations system…[and] the voice for victims of human rights violations worldwide’. See also Koh, ‘A Job Description for the UN High Commissioner for Human Rights’ (2003–4) 35 Columbia Human Rights Law Review 493, at 494–5; Robinson, ‘Remarks’ (2003–4) 35 Columbia Human Rights Law Review 505, at 506; Oberleitner, n 137, 89–90. 356

  For one way in which the High Commissioner is doing this, see the statements of the High Commissioner, available at http://www.ohchr.org/en/NewsEvents/Pages/ NewsSearch.aspx?PTID=HC&NTID=STM. GA Res 48/141 (1993), para 3(a) refers both to the principles of respect for ‘sovereignty, territorial integrity and domestic jurisdiction of States’ and to the fact that ‘the promotion and protection of all human rights is a legitimate concern of the international community’. 357

  The OHCHR Management Plan 2014-2017 (undated), 28, indicates that the thematic priorities of the OHCHR for the period 2014–17 are: strengthening international human rights mechanisms; enhancing equality and countering discrimination; combating impunity and strengthening accountability and the rule of law; integrating human rights in development and the economic sphere; widening the democratic space; and early warning and protection of human rights in situations of conflict, violence, and insecurity. 358

  Koh, n 355, 495; Ni Aoláin, ‘Looking Ahead: Strategic Priorities and Challenges for the United Nations High Commissioner for Human Rights’ (2003–4) 35 Columbia Human Rights Law Review 469, 491. Gaer and Broecker, ‘Introduction’ in The United Nations High Commissioner for Human Rights: Conscience for the World (eds Gaer and Broecker, 2014), 17, put it thus: ‘From the outset, advocates have urged the High Commissioner to be a champion who opposes all human rights abuses wherever found and a critic of states large and small and governments powerful and weak. The High Commissioner has been called on to engage with victims of abuse yet at the same time speak truth to power. The High Commissioner is asked to reach the world’s top diplomats and prime ministers and to be a consensus-builder with the power to convince even the cruellest among them to change their abusive practices. At the same time, the High Commissioner is instructed to respond to human rights crises, as well as to take preventive action to avert future emergencies. As if this were not enough, the High Commissioner is also mandated to carry out the instructions of governments acting through the Human Rights Council and to be an administrator, coordinator and manager for OHCHR. These expectations are extraordinary and perhaps unachievable and the individuals nominated and selected for the post of High Commissioner have felt the pressure of trying to satisfy them.’ 359

  For views on the approaches taken by the various Commissioners, see Mertus, The United Nations and Human Rights (2009), 31–5; Kang, ‘15 Years after Vienna: OHCHR Developments and Challenges’ in Global Standards—Local Action: 15 Years Vienna World Conference on Human Rights (eds Benedek et al, 2009) 65–6; Gaer and Broecker, ‘Introduction’, n 358, 7–17. The Secretary-General also has an important role to play. For example, it has been said that Secretary-General Boutros Boutros-Ghali was not in favour of the creation of the post of High Commissioner, and accordingly ‘appointed a cautious diplomat with no human rights credentials and a record of actively opposing any consideration of human rights matters by the Security Council’: Alston, n 323, 325. Other Secretaries-General had also been somewhat hesitant. See, eg, the views of Dag Hammarskjöld, as recounted in Humphrey, n

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322; King and Hobbins, ‘Hammarskjöld and Human Rights’ (2003) 5 Journal of the History of International Law 337, 347–72. 360

  OHCHR Report 2015 (2016), 41.

361

  See section 3.4.2 on special procedures, section 5 on the human rights treaty bodies, and section 4.4.2.1 on field presences. 362

  See section 4.4.2.2 on technical cooperation.

363

  For example, the OHCHR provides substantive and technical support during the regular and special sessions of the Council. It organizes and supports expert panels, discussions, and meetings of stakeholders; and it advises and supports NGOs that seek to engage with the Council: OHCHR Report 2015 (2016), 42 and 288. 364

  For example, the OHCHR ‘provides thematic, fact-finding, policy, legal and methodological expertise, research, analysis and documentation and assists with logistical and administrative matters’: OHCHR Report 2015 (2016), 42. It assists mandate holders with their country visits, transmission of communications, the preparation of reports, and the issuance of press releases and media statements. 365

  For example, the OHCHR provides training sessions to states on the UPR process and on the preparation of states’ UPR report: OHCHR, 2009 Report: Activities and Results (2010), 9. It provides technical assistance to states on strengthening the national consultative process and on the implementation of UPR recommendations: OHCHR Report 2015 (2016), 42. It also draws up two of the reports on which the review is based. On the role of the OHCHR in this regard, see further para 22.53. 366

  For example, the OHCHR provides training sessions to states on treaty body reporting and carries out other capacity-building activities for states. It provides secretariat support to the treaty bodies, and supports their work, eg, on the drafting of general comments/ recommendations and in the coordination between treaty bodies. See OHCHR Report 2015 (2016), 272–8; Boerefijn, ‘Human Rights, United Nations High Commissioner for (UNHCHR)’ in MPEPIL (online), para 10. See further, section 5, ‘Human rights treaties and treaty bodies’. 367

  See Henkin (ed), Honoring Human Rights: From Peace to Justice (1998); Henkin (ed), Honoring Human Rights and Keeping the Peace: Lessons from El Salvador, Cambodia and Haiti (1995); White and Klaasen (eds), The UN, Human Rights and Post-Conflict Situations (2005); Hannum, ‘Human Rights in Conflict Resolution: The Role of the High Commissioner for Human Rights in UN Peacemaking and Peacebuilding’ (2006) 28 HRQ 1; Mahoney and Nash, Influence on the Ground: Understanding and Strengthening the Protection Impact of United Nations Human Rights Field Presences (2012); O’Flaherty (ed), The Human Rights Field Operation: Law, Theory and Practice (2007); O’Flaherty and Ulrich, ‘The Professional Identity and Development of Human Rights Field Workers’ in The Professional Identity of the Human Rights Field Officer (eds O’Flaherty and Ulrich, 2010) 11; Broecker, ‘Protection through Presence: The Office of the High Commissioner for Human Rights in the Field’ in Gaer and Broecker (eds), n 358, 157. 368

  The early human rights field presences were those of El Salvador, Cambodia, Haiti, the former Yugoslavia, and Guatemala. On which, see Brody, ‘The United Nations and Human Rights in El Salvador’s “Negotiated Revolution”’ (1995) 8 Harv HRJ 153; Acuna, The United Nations Mission in El Salvador: A Humanitarian Law Perspective (1995); O’Neill, ‘Human Rights Monitoring versus Political Expediency: The Experience of the OAS/UN Mission in Haiti’ (1995) 8 Harv HRJ 101; Henkin (ed), Honoring Human Rights: From Peace to Justice, n 367; Henkin (ed), Honoring Human Rights and Keeping the Peace, n 367.

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369

  They were often criticized for utilizing individuals with little human rights expertise and for having little, if any, relationship with other UN human rights mechanisms. For example, the Commission on Human Rights had established country rapporteurs to consider the human rights situation in El Salvador, Guatemala, and Haiti, but there was no formal relationship between the country rapporteurs and the human rights field presence. See Martin, ‘The High Commissioner’s Field Operations’ in Alfredsson et al (eds), n 250, 404; Mertus, n 359, 11; O’Flaherty and Ulrich, n 367, 11. 370

  The deaths of the Presidents of Burundi and Rwanda in a plane crash that triggered the Rwandan genocide occurred one day after the first High Commissioner for Human Rights took office. The early days of the Rwandan human rights presence suffered from numerous logistical difficulties, not least due to the OHCHR’s then lack of expertise in the creation of human rights field operations. See Martin, n 369, 407–8. On the UN human rights presence in Rwanda, see Martin, ‘After Genocide: The UN Human Rights Field Operation in Rwanda’ in Henkin (ed), Honoring Human Rights: From Peace to Justice, n 367, 97; Howland, ‘Mirage, Magic or Mixed Bag? The United Nations High Commissioner for Human Rights’ Field Operation in Rwanda’ (1999) 21 HRQ 1. High Commissioner Ayala Lasso also established an office in Burundi, Cambodia, and Colombia. He also established technical assistance projects, on which see section 4.4.2.2, ‘Technical cooperation’. See Broecker, n 367, 160–1. 371

  OHCHR Report 2015 (2016), 43.

The first High Commissioner for Human Rights described human rights field presences as a major innovation of the Office of the High Commissioner: UN Doc E/CN.4/1997/98, para 29. On the expansion of field presences and the role of individual High Commissioners, see Broecker, n 367; Ramcharan (ed), Human Rights Protection in the Field (2006). 372

  The decision as to whether a country office is to be established is affected by a number of factors, including the human rights situation in the state in question, whether OHCHR might be able to influence the situation, the breadth of the OHCHR mandate, and the likelihood of cooperation with the government of the state in question and civil society. See United Nations High Commissioner for Human Rights, The OHCHR Plan of Action: Protection and Empowerment (May 2005), para 55. See also Connors and Schmidt, n 256, 390, referring also to ‘security and political considerations, human and financial resources, [and] administrative arrangements’. Consent of the state is required in order for a country office to be established, with a Memorandum of Understanding usually being concluded between the OHCHR and the state in question. This has a number of implications, including that some offices are not able to be established due to lack of consent on the part of the state; limitations might be set on the activities that may be undertaken by the country office; and the presence will be terminated if a state withdraws its consent. For example, the OHCHR Office in Nepal closed in 2012 following the unwillingness of the Government to renew its mandate. Broecker, n 367, 168. Country offices usually engage in human rights monitoring, protection activities, technical cooperation, and public reporting, although the precise activities depend on the situation in the state in question. OHCHR Report 2015 (2016), 138. Regional offices are established with the consent of the state in which they are to be located and following consultation with states of the region. Regional offices provide support to the OHCHR country offices and other OHCHR initiatives within the region in question. They analyse cross-cutting human rights issues at the regional level, and work with regional and sub-regional actors such as intergovernmental organizations and civil society. They also

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provide support to states in their engagement with human rights bodies. See OHCHR Report 2015 (2016), 138. As at January 2017, the OHCHR had 14 country offices—Burundi, Chad, Guinea, Uganda, Mauritania, ‘the State of Palestine’, Tunisia, Yemen, Cambodia, Bolivia, Colombia, Guatemala, Honduras, and Mexico—and one ‘field-based structure’ in Seoul covering the Democratic People’s Republic of Korea. It also had 10 regional offices—East Africa (Addis Ababa, Ethiopia), West Africa (Dakar, Senegal), Southern Africa (Pretoria, South Africa), Europe (Brussels, Belgium), the Middle East and North Africa (Beirut, Lebanon), the Pacific (Suva, Fiji), Central Asia (Bishkek, Kyrgyzstan), South-East Asia (Bangkok, Thailand), Central America (Panama City, Panama), South America (Santiago de Chile, Chile)—a Training and Documentation Centre for South-West Asia and the Arab Region (Doha, Qatar), and a subregional centre for human rights and democracy for Central Africa (Yaoundé, Cameroon). See OHCHR, United Nations Human Rights Appeal 2017 (February 2017), 42– 3. 373

  Following a review of UN peacekeeping operations (UN Doc A/55/305-S/2000/809 (2000), paras 244–5; UN Doc A/55/502 (2000)), peacekeeping operations have tended to contain a human rights component. The mandate is set out in the relevant Security Council resolution that establishes the operation. The OHCHR works with the Department of Peacekeeping Operations and the Department of Political Affairs in this regard. It provides input into ‘mission mandates, structures and concepts of operations, policy development and implementation and strategic engagement with Member States and UN departments that are dealing with peace and security issues’, and provides ‘technical expertise and quality control in support of the Department of Field Support for the clearance, identification, recruitment and deployment of human rights staff in UN peace operations, especially with regard to start-up teams’: OHCHR 2015 Report (2016), 138. The work is undertaken primarily by the Peace Missions Support Section of the OHCHR, which is located in New York. The head of the human rights component of the peacekeeping operation reports both to the High Commissioner for Human Rights and to the head of the mission. As at January 2017, there were human rights components in the following peace missions: Afghanistan, the Central African Republic, Côte d’Ivoire, the Democratic Republic of the Congo, Guinea-Bissau, Haiti, Iraq, Kosovo, Liberia, Libya, Mali, Somalia, South Sudan, and the Sudan (Darfur). See OHCHR, United Nations Human Rights Appeal 2017 (February 2017), 42–3. 374

  Human rights advisers may be stationed within UN country teams following a request of the Resident Coordinator and consultations between the Resident Coordinator and the OHCHR. On the Resident Coordinator, see ch 21, ‘Disaster Relief’. Advisers assist the Resident Coordinator and members of the UN country team to integrate human rights into their work and to strengthen national capacities. ‘Other functions include: advising and providing training to independent national human rights institutions (NHRIs) and other stakeholders; advising State actors on the promotion and protection of human rights and other UN norms and standards; building networks with and providing practical support to civil society actors; providing operational support to human rights training and/or national capacity-building activities; promoting engagement with the international human rights mechanisms; and when applicable, advising on integrating human rights in humanitarian response and post-crisis recovery processes.’ OHCHR Report 2015 (2016), 139. Advisers report both to the High Commissioner and to the Resident Coordinator. See further United Nations Development Group (UNDG), Guidance Note on Human Rights for Resident Coordinators and UN Country Teams (2015); UNDG Strategy

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for the Deployment of Human Rights Advisers to Resident Coordinators and UN Country Teams (January 2012). As at January 2017, human rights advisers could be found in the following UN country teams—in Chad, Kenya, Madagascar, Malawi, Mozambique, Niger, Nigeria, Rwanda, Sierra Leone, Papua New Guinea, the Philippines, Sri Lanka, Timor-Leste, Thailand, Moldova, the Russian Federation, Serbia, the Southern Caucasus, the Dominican Republic, Jamaica, and Paraguay. See OHCHR, United Nations Human Rights Appeal 2017 (February 2017), 42–3. 375

  OHCHR Report 2015 (2016), 279. For example, the OHCHR provided support to the Commission of Inquiry on Lebanon (UN Doc A/HRC/3/2 (2006)), the Independent Special Commission of Inquiry for Timor-Leste (2 October 2006), the High-Level Fact-Finding Mission to Beit-Hanoun (UN Doc A/HRC/9/26 (2008)), and the Fact-Finding Mission on the Gaza Conflict (UN Doc A/HRC/12/48 (2009)). A special contingency fund of the OHCHR serves to finance the activities of the rapid response unit. See OHCHR, 2009 Report: Activities and Results (2010), 168. In a number of cases, the HRC has also mandated the High Commissioner to investigate human rights situations in particular countries, eg Sri Lanka, Iraq, and South Sudan. See, respectively, HRC Res 25/1 (2014); HRC Res S-22/1 (2014); HRC Res 29/13 (2015). 376

  The first High Commissioner for Human Rights considered the ‘flexibility’ of human rights field presences ‘one of its strongest assets’. UN Doc E/CN.4/1997/98, para 29. On the variety of tasks undertaken, see OHCHR Report 2015 (2016), 141–246; O’Flaherty (ed), n 367. It can prove difficult, in practice, to determine how best to strike a balance between the different tasks. 377

  The term ‘technical cooperation’ is used alongside terms such as ‘technical assistance’ and ‘advisory services’. The former term better reflects the range of activities that are undertaken. It also emphasizes the ‘cooperative’ aspect of the work. See Mokhiber, ‘The United Nations Programme of Technical Cooperation in the Field of Human Rights’ in Alfredsson et al (eds), n 31, 219, fn 2. 378

  ibid, 220–1.

379

  On technical cooperation, see generally Higgins, ‘Technical Assistance for Human Rights’ (1963) 19 The World Today 174–80 and 219–24; Schwelb and Alston, n 137, 285–7; UN Centre for Human Rights, Advisory Services and Technical Cooperation in the Field of Human Rights, Fact Sheet No 3 (Rev1) (1996); Mokhiber, n 377; Flinterman and Zwamborn, From Development of Human Rights to Managing Human Rights Development: Global Review of the OHCHR Technical Cooperation Programme (2003). 380

  As of 1955, the United Nations Programme of Advisory Services in the Field of Human Rights afforded technical assistance to states that requested it, in the form of the provision of advisory services and experts, the creation of fellowships and scholarships, and the holding of seminars. Provision of training courses was later added as another function of the Programme. The Programme was created pursuant to GA Res 926 (X) (1955). The term ‘advisory services’ was used in order not to deter states: Schwelb and Alston, n 137, 285. Prior to 1955, technical assistance had been provided on an ad hoc basis. See, eg, GA Res 729 (VIII) (1953), authorizing the provision of technical assistance to states in the protection and promotion of women’s rights; GA Res 730 (VIII) (1953), authorizing the provision of technical assistance to states in the combating of discrimination and the protection of minorities; GA Res 839 (IX) (1954), authorizing the provision of technical assistance to states in the promotion of freedom of information. 381

  Clapham, n 319, 566.

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382

  For example, the technical cooperation programme grew from providing assistance on two projects in 1984 to 402 projects by 1996. See UN Doc E/CN.4/1997/86, table, at para 16. In the early years of the programme, states reportedly took the view that requests for assistance were an admission that all was not well. See Humphrey, ‘The United Nations and Human Rights’ (1965) 11 Howard LJ 373, 377. The increase in requests is due to the waning of such a view, the increased knowledge of the technical cooperation programme, and the increased democratization in states. UN Doc E/CN.4/1997/86, para 49. The provision of technical assistance was welcomed in the Vienna Declaration and Programme of Action of the World Conference on Human Rights, and calls were made for its strengthening. See UN Doc A/CONF.157/23 (1993), Part I, paras 27, 34; Part II, paras 7, 10, 16, 25, 30, 68–9, 76, 82. 383

  Schmidt, n 145, 420. Concerns had also been expressed in the late 1990s by the Secretary-General. See, eg, UN Doc E/CN.4/1997/86, para 49. 384

  Mokhiber, n 377, 220.

385

  On this process, see UN Centre for Human Rights, Advisory Services and Technical Cooperation in the Field of Human Rights, Fact Sheet No 3 (Rev 1) (1996); UN Doc E/CN. 4/1992/49, paras 86–93. On programme evaluation, see Flinterman and Zwamborn, n 379. 386

  Schmidt, n 145, 420.

387

  For specific examples of assistance, see the reports of the Secretary-General on advisory services and technical cooperation in the field of human rights (to the Human Rights Council, formerly to the Commission on Human Rights) e.g. UN Doc A/HRC/13/61 (2010) and the annual reports of the High Commissioner. 388

  See UN Centre for Human Rights, n 385. For specific aspects of technical cooperation, see ‘Technical assistance and capacity-building options for integrating human rights into national policies: Report of the Office of the United Nations High Commissioner for Human Rights’, UN Doc A/HRC/27/41 (24 July 2014); ‘Technical cooperation and capacity-building to promote and protect the rights of all migrants, including women, children, older persons and persons with disabilities: Report of the Office of the High Commissioner for Human Rights’, UN Doc A/HRC/31/80 (25 January 2016). 389

  The OHCHR works closely with the United Nations Development Programme (UNDP) in certain areas. See, eg, the ACT project, at para 22.119. It has also worked with UNDP on the human rights strengthening project (HURIST), which assisted UNDP’s policy on human rights. The OHCHR further works with UNICEF, the United Nations Population Fund (UNFPA), and others on specific projects. And it also works with non-UN entities such as the OSCE, the African Union (AU), and the Organization of American States (OAS). 390

  See, eg, UN Doc E/CN.4/1992/49, para 9; Commission on Human Rights, Res 1993/87, preamble. 391

  The criticism was particularly cogent in the 1980s, during which time, on occasion, the Commission on Human Rights ‘remove[d] particular countries from the monitoring procedures of the Commission’ and ‘place[d] them instead under the programme of advisory services’: Mokhiber, n 377, 224. 392

  From 1988, the work of the Programme has been supported by the establishment of a voluntary fund, at that time known as the Voluntary Fund for Advisory Services and Technical Assistance in the Field of Human Rights. The Voluntary Fund was created pursuant to ECOSOC Decision 1987/147; Commission on Human Rights, Res 1987/38. Its name was changed pursuant to Commission on Human Rights, Res 1991/49. A Board of Trustees provides policy and strategic assistance to the OHCHR, reviews projects, and

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assists in fundraising for the Fund. See Commission on Human Rights, Res 1993/87; UN Doc A/HRC/13/61 (2010). Specific projects may be financed by other UN entities, for example, the UNDP, with whom the OHCHR has a Memorandum of Understanding. The OHCHR and the UNDP jointly run the Human Rights Strengthening Programme, which supports the implementation of the UNDP’s policy on human rights. It involves testing guidelines and methodologies, and identifying best practices in developing national capacities for the promotion and protection of human rights. See OHCHR, Partnership with UN agencies and programmes, which can be found at http://www.ohchr.org/EN/Countries/Pages/PartnershipsIndex.aspx. 393

  National human rights institutions are generally of two types—commissions and ombudsmen. See generally on national human rights institutions: Principles Relating to the Status of National Institutions for the Promotion and Protection of Human Rights, GA Res 48/134, Annex (1993) (Paris Principles); de Beco and Murray, A Commentary on the Paris Principles on National Human Rights Institutions (2015); Centre for Human Rights, Fact Sheet No 19, National Institutions for the Promotion and Protection of Human Rights (1993); Centre for Human Rights, National Human Rights Institutions: A Handbook on the Establishment and Strengthening of National Institutions for the Promotion and Protection of Human Rights (1995); Hossain, Besselink, Selassie, and Völker (eds), Human Rights Commissions and Ombudsman Offices: National Experiences throughout the World (2000); Pohjolainen, The Evolution of National Human Rights Institutions: The Role of the United Nations (2006); OHCHR, Survey on National Human Rights Institutions (2009); Goodman and Pegram (eds), Human Rights, State Compliance and Social Change: Assessing National Human Rights Institutions (2012); Thipanyane, ‘The High Commissioner and National Human Rights Institutions’ in Gaer and Broecker (eds), n 358, 197; Magazzeni, ‘The Role of OHCHR in Promoting National Human Rights Institutions’ in Benedek et al (eds), n 359, 169. 394

  For example, the government may have established the institution; it may fund it, or appoint its members. The national human rights institution may be reliant on the government in order to function. However, it will also have to maintain a certain distance from the government in order to carry out its mandate. See OHCHR and International Council on Human Rights Policy, Assessing the Effectiveness of National Human Rights Institutions (2005). 395

  This was a relatively late decision. The Vienna Declaration and Programme of Action called for a considerable increase in the ‘the resources allocated to programmes aiming at the establishment and strengthening of national legislation, national institutions and related infrastructures’: UN Doc A/CONF.157/23 (1993) Part I, para 34. Almost a decade later, Secretary-General Annan, in his report, Strengthening of the United Nations: An Agenda for Further Change, opined that ‘[t]he emplacement or enhancement of a national protection system in each country, reflecting international human rights norms, should…be a principal objective of the Organisation’: UN Doc A/57/387 (2002), para 50. This is not to say that the UN had no interaction with national human rights institutions until that time. However, national human rights institutions themselves have flourished only since the 1990s. See OHCHR, n 393, 8. For the early work of the UN on national human rights institutions, see Centre for Human Rights, National Human Rights Institutions, n 393, 4–5; Pohjolainen, n 393, 30–77. The OHCHR has regard for the Paris Principles when interacting with national human rights institutions in its work. See, eg, UN Doc A/HRC/13/44 (2010), para 2.

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The work with national human rights institutions has been extended to include regional human rights mechanisms. See, eg, HRC Res 12/15 (2009). 396

  In 2015, the OHCHR ‘supported the establishment or strengthening of 71’ national human rights institutions, including the establishment of the Ombudsman Office in Cape Verde, the review of draft laws on national human rights institutions in Burkina Faso and Benin, and developing a draft law on Chad’s National Human Rights Commission. See OHCHR Report 2015 (2016), 27. 397

  Between April 2013 and August 2014 alone, the OHCHR provided advice and assistance in respect of national human rights institutions to 57 states: Report of the Secretary-General, National institutions for the promotion and protection of human rights, UN Doc A/HRC/27/39, para 6. The OHCHR has provided assistance for the establishment of a national human rights institution in the self-declared autonomous Puntland region of Somalia (ibid, para 7). The OHCHR also provided support to the Sub-Committee on Accreditation in the review of national human rights institutions (ibid, para 80). For further details on the states in question and the nature of the assistance provided, see Report of the Secretary-General, National institutions for the promotion and protection of human rights, UN Doc A/HRC/27/396. See also OHCHR Report 2015 (2016), 279–85. 398

  In HRC Res 20/14 (2012), the Council recognized the important role played by national human rights institutions in the HRC, including in the UPR process and with the special procedures, as well as in respect of the human rights treaty bodies. However, a 2009 OHCHR survey of national human rights institutions found that ‘While NHRI participation in the Council’s UPR process was high, interaction with the treaty bodies remained moderate. Participation in the Human Rights Council and interaction with its special procedures mandate holders was low and interaction with other international mechanisms, conferences, workshops was minimal.’ OHCHR, Survey on National Human Rights Institutions: Report on the Findings and Recommendations of a Questionnaire (2009), 42. 399

  Prior to 2016, the Global Alliance was known as the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights. The International Coordinating Committee was created in 1993 in order to coordinate better the work of national human rights institutions. The International Coordinating Committee has, inter alia, organized conferences focusing on particular aspects of the work of national human rights institutions, assisted by the OHCHR. The OHCHR also organizes the meetings of the Global Alliance. Further information on the Global Alliance is available at http:// nhri.ohchr.org/EN/Pages/default.aspx. 400

  Commission on Human Rights, Res 2005/74; HRC Res 5/1 (2007). The position is thus one of accreditation by peers. In order to be granted accreditation, the national human rights institution in question must be compliant with the Paris Principles. Those that are in compliance are granted ‘A’ status, such status enabling participation in UN work on human rights. Those that are partly in compliance are granted ‘B’ status. Those that are not in compliance are granted ‘C’ status. As of August 2016, 75 national human rights institutions held ‘A’ status. The OHCHR, as secretariat, assists the Coordinating Committee with accreditation decisions. See Global Alliance of National Human Rights Institutions, Chart of the Status of National Institutions (2016), 1; ‘Process currently utilized by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights to accredit national institutions in compliance with the Paris Principles: Report of the Secretary-General’, UN Doc A/HRC/13/45 (2010); International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights, Report and

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Recommendations of the Session of the Sub-Committee on Accreditation (March–April 2010). See further de Beco and Murray, n 393. 401

  See, eg, Vienna Declaration and Programme of Action, UN Doc A/CONF.157/23 (1993) Part I, para 36; Commission on Human Rights, Res 2005/74; GA Res 63/172 (2009); UN Doc A/HRC/13/44 (2010) para 4. The OHCHR considers the creation and strengthening of national human rights institutions to be one of its priorities. The OHCHR also seeks to increase their participation in the human rights work of the UN. See UN Doc A/HRC/13/44 (2010), para 2. On the different ways in which national human rights institutions interact with UN entities for the promotion and protection of human rights, see ibid, at paras 74–85. 402

  See, eg, ‘Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body: Report by the Secretariat’, HRI/MC/2006/2 (2006). 403

  For example, the G-7, the AU, the Association of Southeast Asian Nations (ASEAN), the EU. See Mukherjee, ‘United Nations High Commissioner for Human Rights: Challenges and Opportunities’ in Alfredsson et al (eds), n 250, 394. 404

  Koh, n 355, 496.

405

  ibid; Mukherjee, n 403, 394.

406

  The Secretary-General has called for the full integration of human rights ‘into the broad range of the Organization’s activities’: Renewing the United Nations: A Programme for Reform, Report of the Secretary-General, UN Doc A/51/950 (1997), para 79. See also Report of the Secretary-General, Strengthening the United Nations: An Agenda for Further Change, UN Doc A/57/387 (2002), para 48 and para 51 Action 2; Report of the SecretaryGeneral, In larger freedom: towards development, security and human rights for all, n 138, para 144. 407

  OHCHR Report 2015 (2016), 43. In 2009, the UNDG’s Human Rights Working Group (HRWG) was established. It is chaired by the OHCHR. According to its Terms of Reference, ‘The overall objective of the HRWG is to institutionalize human rights as a central part of the UN’s development work. It aims to achieve this objective through strengthening systemwide coherence and collaboration on human rights mainstreaming and providing policy and operational support to Resident Coordinators, Regional UNDG Teams and UN Country Teams in integrating human rights principles and international standards into the work of the UN and in supporting national partners implement human rights obligations.’ UNDG HRWG, Terms of Reference, 5 December 2014. On the Working Group, see https://undg.org/ home/undg-mechanisms/undg-hrm/. 408

  On which, see section 4.4.2.1, ‘Human rights field presences’. See further Boerefijn, n 366, paras 25–9. 409

  On which, see para 22.232.

410

  OHCHR Report 2015 (2016), 263.

411

  Kedzia, ‘Mainstreaming Human Rights in the United Nations’ in Alfredsson et al (eds), n 31, 231. The same author notes (at 237) that ‘[h]uman rights find their way more easily into policy documents than into institutional culture and programmes’. 412

  For example, Art 42 of the Convention on the Rights of the Child provides that ‘States Parties undertake to make the principles and provisions of the Convention widely known… to adults and children alike’. Similarly, Art 33 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families provides that migrant workers and members of their families ‘shall have the right to be informed’ of their ‘rights arising out of the present Convention’. Along similar lines, GA Res 217D (III) (1948) recommended that member states and the Secretary-General disseminate the UDHR. See also Human Rights Committee, General Comment No 3, which provides that ‘the Covenant should be publicized in all official languages of the State and steps should be taken to From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

familiarize the authorities concerned with its contents as part of their training’: HRI/GEN/1/ Rev.9 (vol I), para 2. See OHCHR, The Right to Human Rights Education: A Compilation of Provisions of International and Regional Instruments Dealing with Human Rights Education (1999). See generally Andreopoulos and Claude (eds), Human Rights Education for the Twenty-First Century (1997); Jacobsen, ‘Human Rights Education’ in Alfredsson et al (eds), n 31, 347; Alfredsson, ‘The Right to Human Rights Education’ in Economic, Social and Cultural Rights: A Textbook (eds Eide, Krause, and Rosas, 2001), 213; Gerber, ‘Human Rights Education: A Slogan in Search of a Definition’ in Joseph and McBeth (eds), n 222, 541. 413

  For example, Art 10 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment provides an obligation on states parties to ensure that law enforcement and other personnel involved in the detention of individuals receive education and information on the prohibition against torture. Similarly, the Committee on the Elimination of Racial Discrimination, in its General Recommendation XIII, has noted that law enforcement officials should receive training to ensure that they uphold human rights without distinction as to race. HRI/GEN/1/Rev.9 (vol II). See OHCHR, n 412. 414

  For example, the Vienna Declaration and Programme of Action contains numerous references to the importance of human rights education. See UN Doc A/CONF.157/23 (1993) Part I, para 33, and Part II, paras 78–82. Quite what the phrase ‘human rights education’ means is open to different interpretations, and states, the UN, NGOs, and teachers have all adopted different interpretations. See Gerber, n 412, 541. 415

  The OHCHR has produced fact sheets, guides, training materials, reference studies, and the like for different audiences. It has sought to translate materials beyond the six official languages of the UN to reach as broad an audience as possible. UN human rights field presences also design materials targeted for the particular audience and on subjects of particular relevance to them. The website of the OHCHR—http://www.ohchr.org—itself contains a host of useful information. The OHCHR has also created a Database on Human Rights Education and Training, and a Resource Collection on the same subject. 416

  UNESCO, in particular, works on the subject of human rights education. See, eg, UNESCO, World Plan of Action on Education for Human Rights and Democracy (1993). 417

  The ‘Assisting Communities Together’ project. Activities undertaken through the project included: engagement with local media and conducting awareness campaigns, holding cultural events, creating information centres and producing materials for education, translating, and disseminating human rights information, organizing seminars and trainings, and working in schools. See OHCHR, ACT Project: Assisting Communities Together (Geneva, March 2002). 418

  GA Res 49/184 (1994). See Report of the United Nations High Commissioner for Human Rights on the implementation of the Plan of Action for the United Nations Decade on Human Rights Education, UN Doc A/51/506/Add.1 (1996), Appendix. The Plan of Action contained five objectives: ‘the assessment of needs and formulation of strategies; building and strengthening human rights education programmes; developing educational material; strengthening the mass media; and the global dissemination of the Universal Declaration of Human Rights’ (para 5). The Action Plan envisaged engagement with all levels of society. The General Assembly urged states to formulate action plans on human rights education: GA Res 49/184 (1994). The OHCHR drew up guidelines to assist states in the formulation of these action plans. See UN Doc A/52/469/Add.1 (1997).

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For the work undertaken during the UN Decade for Human Rights Education and an evaluation thereof, see UN Doc A//55/360 (2000); UN Doc E/CN.4/2003/101; UN Doc E/CN. 4/2004/93. 419

  GA Res 59/113B (2005). The first phase of the Programme (2005–9) focused on human rights education at the primary and secondary levels. The second phase (2010–14) focused on higher education and on training programmes for teachers, educators, civil servants, law-enforcement officials, and military personnel. See HRC Res 12/4 (2009); UNESCO and OHCHR, Plan of Action, World Programme for Human Rights Education: First Phase (2006). The third phase (2015–19) focuses on strengthening the first two phases of the Programme, as well as on human rights training for journalists and the media. On the Programme, see http://www.ohchr.org/EN/Issues/Education/Training/Pages/Programme.aspx. 420

  GA Res 66/137 (2011). See also HRC Res 16/1 (2011). Work on the Declaration was undertaken by the HRC Advisory Committee and by the Open-Ended Working Group on the Declaration. See http://www.ohchr.org/EN/Issues/Education/Training/Pages/ UNDHREducationTraining.aspx. 421

  GA Res 48/141 (1993), para 4. GA Res 64/172 (2010) also requested the High Commissioner, inter alia, to mainstream the right to development and to strengthen the partnership between member states, development agencies, and the international financial and trade institutions. 422

  See OHCHR, Claiming the Millennium Development Goals: A Human Rights Approach (2008). See also Alston, ‘Ships Passing in the Night: The Current State of the Human Rights and Development Debate seen through the Lens of the Millennium Development Goals’ (2005) 27 HRQ 755. As part of this goal, the position of Special Adviser to the High Commissioner for Human Rights on the Millennium Development Goals was created. See the report of the Special Adviser, Philip Alston, A human rights perspective on the Millennium Development Goals: paper prepared as a contribution to the work of the Millennium Project Task Force on Poverty and Economic Development (undated). The linkage between human rights and the Millennium Development Goals has since seemingly been accepted. See Keeping the promise: a forward-looking review to promote an agreed action agenda to achieve the Millennium Development Goals by 2015, Report of the Secretary-General, UN Doc A/64/665 (2010), paras 2, 99. 423

  The General Assembly has indicated that the 2030 Agenda for Sustainable Development ‘is grounded in the Universal Declaration of Human Rights, international human rights treaties, the Millennium Declaration and the 2005 World Summit Outcome’, and that it is ‘informed by other instruments such as the Declaration on the Right to Development’. GA Res 70/1 (2015), Transforming our world: the 2030 Agenda for Sustainable Development, Declaration, para 10. See also the ‘Summary Table on the Linkages between the SDGs and relevant international human rights instruments’, available at http://www.ohchr.org/EN/Issues/MDG/Pages/The2030Agenda.aspx. 424

  See n 310.

425

  See UN Doc A/HRC/15/24 (2010), paras 19–20.

426

  Connors and Schmidt, n 256, 389.

427

  For example, the OHCHR supported the work of the Durban Review Conference in 2009. It has also been involved in the UN Climate Change Conference in 2009.

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428

  United Nations Trust Fund for the Support of the Activities of the High Commissioner for Human Rights; United Nations Voluntary Fund for Technical Cooperation in the Field of Human Rights; Human Rights Trust Fund for a Human Rights Education Programme in Cambodia; United Nations Voluntary Fund for Participation in the Universal Periodic Review Mechanism; United Nations Voluntary Fund for Financial and Technical Assistance for the Implementation of the Universal Periodic Review; Voluntary Technical Assistance Trust Fund to Support the Participation of Least Developed Countries and Small Island Developing States in the Work of the Human Rights Council; United Nations Voluntary Fund for Indigenous Peoples; Contingency Fund; Special Fund for the Participation of Civil Society in the Social Forum, the Forum on Minority Issues and the Forum on Business and Human Rights. See OHCHR, United Nations Human Rights Appeal 2017 (February 2017), 45–7. 429

  The budget allocated to the Office of the High Commissioner for the first two years of its work was $1,471,400. This translated into a staff of three and limited visits. See Alston, n 323, 325. On the early years, of the Office, see Cerna, ‘A Small Step Forward for Human Rights: The Creation of the Post of United Nations High Commissioner for Human Rights’ (1994–5) 10 American University JILP 1265; Cook, ‘The Role of the High Commissioner for Human Rights: One Step Forward or Two Steps Back?’ (1995) 89 ASIL Proceedings 235; Alston, n 323. On the first 10 years of the Office, see the symposium at (2003–4) 35 Columbia Human Rights Law Review 465. 430

  $173.5 million was initially allocated to the OHCHR. By the end of the biennium, however, the figure had risen to $207 million, owing to funding for the treaty body strengthening process and costs relating to commissions of inquiry. OHCHR 2015 Report (2016), 60. 431

  OHCHR 2015 Report (2016), 60. This should be compared to the situation in 2004–5, when the budget of the OHCHR was $67.6 million and represented 1.87 per cent of the regular UN budget: OHCHR, Annual Report 2005 (2006), 11. That level of funding was recognized to be insufficient, and the General Assembly recommended that the budget be doubled over a five-year period. World Summit Outcome, GA Res 60/1 (2005), para 124. 432

  OHCHR 2015 Report (2016), 60.

433

  For a list of donors, see OHCHR 2015 Report (2016), 61–3. Of the donors, states provide the vast majority of voluntary contributions. The European Commission and other UN entities also tend to provide sizeable donations. Private donors include charitable foundations, companies, universities, and individuals. 434

  The strength of the US dollar affects the amount of funding in dollars the OHCHR receives once exchanged from the local currency of the donations. The economic crisis also impacted the level of voluntary contributions provided. See OHCHR, 2009 Report: Activities and Results (2010), 192. This was recognized as a concern by the Office of Internal Oversight Services: Management Review of the Office of the United Nations High Commissioner for Human Rights, UN Doc A/57/488 (2002), para 4. 435

  The OHCHR attempts to discourage earmarking of voluntary contributions: OHCHR 2015 Report (2016), 64. The danger of earmarked funds is that particular projects get funded while others do not, and this affords less flexibility to the OHCHR in the use of funds. It has been said that ‘major donor countries may be tempted to peg sizeable voluntary contributions to achieve some political leverage over the content of programmes,

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or influence staffing policy. This is a preoccupation voiced frequently by states, in particular non-donors’: Connors and Schmidt, n 256, 391. 436

  On these provisions, see Wolfrum, ‘Article 1’ in Simma et al (eds), n 1, vol I, 108; Wolfrum and Riedel, ‘Article 55(c)’ (ibid, vol II, 1565); Stoll, ‘Article 56’ (ibid, vol II, 1603). 437

  On the one hand, Hudson, ‘Integrity of International Instruments’ (1948) 42 AJIL 107, has expressed the view that the Charter ‘sets out a program of action’. On the other hand, Lauterpacht, International Law and Human Rights (1950), 397, has expressed the position that the provisions lay down a ‘legal obligation’. 438

  Jennings and Watts, Oppenheim’s International Law, vol I: Peace (1992), 989. See further Schwelb, ‘The International Court of Justice and the Human Rights Clauses of the Charter’ (1972) 66 AJIL 337. In United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) ICJ Rep 1980, para 91, the ICJ held that ‘Wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights.’ 439

  GA Res 217A (III) (1948).

440

  On the UDHR, see Robinson, The Universal Declaration of Human Rights: Its Origin, Significance, Application, and Interpretation (1950); Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent (1999); Eide, The Universal Declaration of Human Rights: A Commentary (1992); Hannum, ‘The Status of the Universal Declaration of Human Rights in National and International Law’ (1995–96) 25 Georgia Journal of International and Comparative Law 287; Charlesworth, ‘Universal Declaration of Human Rights (1948)’ in MPEPIL (online); Schabas, The Universal Declaration of Human Rights: The ‘Travaux Préparatoires’ (2013). 441

  Lauterpacht, n 437, 397, expressed the view that the UDHR does not impose a legal obligation on states. See also Lauterpacht, ‘The Universal Declaration of Human Rights’ (1948) 25 BYIL 354, 369; Kunz, ‘The Universal Declaration of Human Rights’ (1949) 43 AJIL 316, 321. Cf Sohn, ‘The Human Rights Clauses of the Charter’ (1977) 12 Texas International Law Journal 129, 133, who expressed the position that ‘the Declaration not only constitutes an authoritative interpretation of the Charter obligations but also a binding instrument in its own right’. See also Henkin, The Age of Rights (1990), 19; United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), n 438. In South West Africa (Ethiopia v South Africa; Liberia v South Africa), Second Phase ICJ Rep 1966, p 6, at 293, Judge Tanaka stated that ‘although not binding in itself’, the UDHR ‘constitutes evidence of the interpretation and application of the relevant Charter provisions’. In Legal Consequences for States of the Continued Presence in South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) ICJ Rep 1971, p 16, at 76, Judge Ammoun stated that ‘[a]lthough the affirmations of the Declaration are not binding qua international convention…they can bind States on the basis of custom…whether because they constituted a codification of customary law…or because they have acquired the force of custom through a general practice accepted as law’. For a selection of different views, see Jennings and Watts, n 438,1001–1005; Hannum, n 440. 442

  The UDHR has been used as a model for numerous national laws and constitutions. Courts not infrequently refer to the Declaration. The preambles to many international instruments also refer to the UDHR. See generally Schwelb, ‘The Influence of the Universal

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Declaration of Human Rights on International and National Law’ (1959) 53 ASIL Proceedings 217; Hannum, n 440. The Proclamation of Teheran, adopted at the International Conference on Human Rights in 1968, notes that ‘The Universal Declaration of Human Rights states a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for the members of the international community.’ Proclamation of Teheran, para 2, Final Act of the International Conference on Human Rights, Teheran, 22 April to 13 May 1968, UN Doc A/CONF.32/41. In the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights, in 1993, the World Conference ‘reaffirm[ed] their commitment to the purposes and principles contained in the Charter of the United Nations and the Universal Declaration of Human Rights’ and ‘emphasiz[ed] that the Universal Declaration of Human Rights, which constitutes a common standard of achievement for all peoples and all nations, is the source of inspiration and has been the basis for the United Nations in making advances in standard setting as contained in the existing international human rights instruments, in particular the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights’: Vienna Declaration and Programme of Action, preamble, World Conference on Human Rights, UN Doc A/CONF. 157/24 (Part I). The basis of the UPR process, on which see section 3.4.1, ‘Universal Periodic Review’, includes the UDHR. See HRC Res 5/1 (2007). 443

  GA Res 217 E (III) (1948).

A bill of human rights was envisaged by the Nuclear Commission on Human Rights, which drafted the UDHR. See, eg, Report of the Commission on Human Rights to the Second Session of the Economic and Social Council, UN Doc E/38, 17 May 1946, 3–4 and 7. See also Draft Resolution of the Economic and Social Council, 5 June 1946, UN Doc E/56, 3. 444

  ECOSOC Res 191 (VIII) (1949).

445

  Historically, economic, social, and cultural rights were supported by socialist states, while civil and political rights were supported by western states. Over the years, there has been something of a convergence between the two positions. 446

  ECOSOC Res 303 I (XI) (1950).

447

  GA Res 421(E)(V) (1950).

448

  ECOSOC Res 384 (XIII) (1951).

449

  GA Res 543 (VI) (1952).

450

  GA Res 2200 A (XXI) (1966).

451

  On the ICCPR, see Henkin (ed), The International Bill of Rights: The Covenant on Civil and Political Rights (1981); Bossuyt, Guide to the ‘Travaux Préparatoires’ of the International Covenant on Civil and Political Rights (1987); McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (1991); Joseph and Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2013); Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2005); Y Tyagi, The UN Human Rights Committee: Practice and Procedure (CUP, 2011). 452

  Art 1 ICCPR.

453

  Arts 2–5 ICCPR.

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454

  Arts 6–27 ICCPR.

455

  Arts 28–45 ICCPR. On which, see section 5.2, ‘Human rights treaty bodies’.

456

  Arts 46–7 and 48–53 ICCPR, respectively.

457

  See section 5.2, ‘Human rights treaty bodies’.

458

  GA Res 44/128 (1989).

459

  Art 2(1) ICCPR.

460

  On the ICESCR, see Craven, The International Covenant on Economic, Social and Cultural Rights (1995); Eide, Krause, and Rosas, Economic, Social and Cultural Rights: A Textbook (2001); Sepulveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (2003); Ssenyonjo, Economic, Social and Cultural Rights in International Law (2009); Saul, Kinley, and Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials (2014). 461

  Art 1 ICESCR.

462

  Arts 2–5 ICESCR.

463

  Arts 6–15 ICESCR.

464

  Arts 16–25 ICESCR. On which, see section 5.2, ‘Human rights treaty bodies’.

465

  Arts 26–31 ICESCR.

466

  HRC Res 8/2 (2008).

On the Optional Protocol, see Mahon, ‘Progress at the Front: The Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’ (2008) 8 HRLR 617; de Albuquerque, ‘Chronicle of an Announced Birth: The Coming into Life of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: The Missing Piece of the International Bill of Human Rights’ (2010) 32 HRQ 144; Vandenbogaerde and Vandenhole, ‘The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: An Ex Ante Assessment of its Effectiveness in Light of the Drafting Process’ (2010) 10 HRLR 207. 467

  GA Res 2106 (XX) (1965).

468

  Declaration on the Elimination of All Forms of Racial Discrimination, GA Res 1904 (XVIII) (1963). 469

  GA Res 1906 (XVIII) (1963). The Commission was requested to bear ‘in mind the views of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, the debates at the seventeenth and eighteenth sessions of the General Assembly, any proposals on this matter that may be submitted by the Governments of Member States and any international instruments already adopted in this field’. See ibid, para 1. 470

  See Schwelb, ‘The International Convention on the Elimination of All Forms of Racial Discrimination’ (1966) 15 ICLQ 996, 999. On the work of the Sub-Commission in this regard, see Thornberry, The International Convention on the Elimination of All Forms of Racial Discrimination: A Commentary (2016), 30–2. 471

  ECOSOC Res 1015B (XXXVII) (1964).

472

  On the Convention, see Schwelb, n 470; Lerner, The UN Convention on the Elimination of All Forms of Racial Discrimination (1980); Meron, ‘The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination’ (1985) 79 AJIL 283; Banton, International Action against Racial Discrimination (1996); van Boven, ‘Monitoring the Convention against Racial Discrimination in the Post-Cold War Context’ in

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International Law in the Post-Cold War World: Essays in Memory of Li Haopei (eds Yee and Tieya, 2001); Thornberry, n 470. 473

  Arts 1–7 ICERD.

474

  Arts 8–16 ICERD. On which, see section 5.2, ‘Human rights treaty bodies’.

475

  Arts 17–25 ICERD.

476

  Art 22 ICERD. See Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Request for the Indication of Provisional Measures ICJ Rep 2008. 477

  GA Res 34/180 (1979).

478

  Convention on the Political Rights of Women (1952); Convention on the Nationality of Married Women (1957); Convention on the Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1962); Declaration on the Elimination of Discrimination against Women (1976). See Galey, ‘Promoting Non-Discrimination against Women—the United Nations Commission on the Status of Women’ (1979) 23 International Studies Quarterly 273. 479

  GA Res 2263 (XXII) (1967).

480

  Chinkin and Freeman, ‘Introduction’ in The UN Convention on the Elimination of All Forms of Discrimination Against Women: A Commentary (eds Freeman, Chinkin, and Rudolf, 2012), 6–7. 481

  World Plan of Action for the Implementation of the Objectives of the International Women’s Year, para 198, Report of the World Conference of the International Women’s Year, Mexico City, 19 June–2 July 1975, UN Doc E/CONF.66/34 (1976). 482

  GA Res 3521 (XXX) (1975).

483

  Belgium also presented a text. Jacobson, ‘The Committee on the Elimination of Discrimination against Women’ in Alston (ed), The United Nations and Human Rights (1992), 445. 484

  ibid.

485

  On the Convention, see Rehof, Guide to the Travaux Préparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (1993); Japanese Association of International Women’s Rights (ed), Convention on the Elimination of All Forms of Discrimination against Women: A Commentary (1992); Freeman, Chinkin, and Rudolf (eds), n 480. 486

  Arts 1–16 CEDAW.

487

  Arts 17–22 CEDAW. On which, see section 5.2, ‘Human rights treaty bodies’.

488

  Arts 23–30 CEDAW.

489

  GA Res 54/4 (1999).

490

  See section 5.2.3.2, ‘Individual communications’. A communications procedure akin to that of the ICERD had been suggested by several states during the drafting of CEDAW. However, it was rejected. See Connors, ‘Optional Protocol’ in Freeman, Chinkin and Rudolf (eds), n 480, 608–9. The failure to conclude a communications procedure was subsequently criticized, and the disparity between CEDAW and other human rights treaties was noted. See, eg, Meron, ‘Enhancing the Effectiveness of the Prohibition of Discrimination against Women’ (1990) 84 AJIL 213; Byrnes and Connors, ‘Enforcing the Human Rights of Women: A Complaints Procedure for the Convention on the Elimination of All Forms of Discrimination against Women?’ (1996) 21 Brooklyn JIL 679. In 1993, the Vienna Declaration and Programme for Action called on the Commission on the Status of Women and the Committee on the Elimination of Discrimination against Women to ‘quickly examine From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

the possibility of introducing the right of petition through the preparation of an optional protocol to the Convention’: Vienna Declaration and Programme of Action, UN Doc A/CONF. 157/23 (1993), para 40. An open-ended Working Group of the Commission on the Status of Women was established, which prepared a draft optional protocol. The draft was transmitted to the Commission, ECOSOC, and General Assembly, all of which adopted the Optional Protocol. See UN Doc E/1997/27 (1997); ECOSOC Res 1999/13 (1999); GA Res 54/4 (1999). On the Optional Protocol, see Connors, ibid. 491

  GA Res 39/46 (1984).

492

  GA Res 3059 (XXVIII) (1973). That year also saw the publication of the influential Amnesty International, Report of Torture (1973), which proved instrumental in drawing international attention to the practice of torture on the part of certain states. 493

  GA Res 3219 (XXIX) (1974). See Rodley and Pollard, The Treatment of Prisoners under International Law (2009), ch 1. 494

  GA Res 3452 (XXX) (1975).

495

  GA Res 32/62 (1977). It is curious that the General Assembly did not request ECOSOC to invite the Commission to prepare a draft Convention, as was its practice in other instances. 496

  Commission on Human Rights Res 18 (XXXIV) (1978). A Working Group was established and had before it drafts prepared by the International Association of Penal Law and Sweden. On the drafts, see Nowak and McArthur, The United Nations Convention against Torture: A Commentary (2008), 4. 497

  Commission on Human Rights Res 1984/21.

498

  On the Convention, see Burgers and Danelius, The United Nations Convention against Torture (1988); Boulesbaa, The UN Convention on Torture and the Prospects for Enforcement (1999); Nowak and McArthur, n 497. 499

  GA Res 57/199 (2002).

On the Optional Protocol, see Evans and Haenni-Dale, ‘Preventing Torture? The Development of the Optional Protocol to the UN Convention against Torture’ (2004) 4 HRLR 19; Buchinger, The Optional Protocol to the United Nations Convention against Torture (2009); Nowak and McArthur, n 496; Murray et al, The Optional Protocol to the UN Convention against Torture (2011). 500

  Art 1 OP-CAT.

501

  Art 2 OP-CAT.

502

  Art 3 OP-CAT.

503

  See, eg, 1921 International Convention for the Suppression of the Traffic in Women and Children; 1924 Declaration of the Rights of the Child. 504

  Declaration of the Rights of the Child, GA Res 1386 (XIV) (1959).

505

  GA Res 31/169 (1976).

506

  UN Doc E/CN.4/L.1366/Rev.1 (1978), reproduced in OHCHR, Legislative History of the Convention on the Rights of the Child (2007), 32. 507

  Commission on Human Rights Res 20 (XXXIV) (1978).

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508

  ibid. ECOSOC and the General Assembly took note ‘with satisfaction’ of the initiative of the Commission. ECOSOC Res 1978/18 (1978); GA Res 33/166 (1978). 509

  The comments of states, specialized agencies, and NGOs are contained in UN Doc E/ CN.4/1324 (1978), reproduced in OHCHR, n 506, 53–68. 510

  The Working Group comprised states members of the Commission; other interested states, inter-governmental organizations, and NGOs with consultative status with ECOSOC were observers. 511

  Convention on the Rights of the Child: text of the draft convention as adopted by the Working Group at second reading, UN Doc E/CN.4/1989/29 (1989). 512

  Commission on Human Rights Res 1989/57 (1989); ECOSOC Res 1989/79 (1989).

513

  The discussions in the Third Committee are reproduced in OHCHR, n 506, 241–70.

514

  GA Res 44/25 (1989).

515

  On the Convention, see symposium in (1990) 12 HRQ 97–178; Detrick, The United Nations Convention on the Rights of the Child: A Guide to the Travaux Préparatoires (1992); LeBlanc, The Convention on the Rights of the Child (1995); Detrick, A Commentary on the United Nations Convention on the Rights of the Child (1999); OHCHR, n 506; various, A Commentary on the United Nations Convention on the Rights of the Child (ongoing). 516

  Arts 1–41 CRC.

517

  Arts 42–45 CRC. On which, see generally section 5.2, ‘Human rights treaty bodies’.

518

  Arts 46–54 CRC.

519

  Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, GA Res 54/263 (2000). On the Optional Protocol, see Happold, ‘The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict’ (2000) 3 YIHL 226; Breen, ‘The Role of NGOs in the Formulation of and Compliance with the Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflict’ (2003) 25 HRQ 435; Helle, ‘Optional Protocol on the Involvement of Children in Armed Conflict to the Convention on the Rights of the Child’ (2000) 82 IRRC 797. 520

  Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, GA Res 54/263 (2000). 521

  Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure, GA Res 66/138 (2011). On the Optional Protocol, see Lee, ‘Communications Procedure under the Convention on the Rights of the Child: 3rd Optional Protocol’ (2010) 18 International Journal of Children’s Rights 567; Türkelli, Vandenhole, and Vandenbogaerde, ‘NGO Impact on Law-Making: The Case of a Complaints Procedure under the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child’ (2013) 5 Journal of Human Rights Practice 1; de Beco, ‘The Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure: Good News?’ (2013) 13 HRLR 367; Egan, ‘The New Complaints Mechanism for the Convention on the Rights of the Child: A Mini Step Forward for Children?’ (2014) 22 International Journal of Children’s Rights 205. 522

  GA Res 45/158 (1990).

523

  See, eg, GA Res 2920 (XXVII) (1972).

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524

  ECOSOC Res 1789 (LIV) (1973).

525

  On the process, see Cholewinski, Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment (1997), 140. 526

  GA Res 33/163 (1978).

527

  Report of the World Conference to Combat Racism and Racial Discrimination, UN Doc A/CONF.92/40, para 13(x). 528

  Measures to improve the situation and ensure the human rights and dignity of all migrant workers: Report of the Secretary-General, UN Doc A/34/535 and Add.1 (1979). 529

  GA Res 34/172 (1979). The Working Group was open to all UN member states. International organizations concerned were also able to participate in the work of the group. 530

  On the Convention, see Cholewinski, n 525; de Guchteneire, Pecoud, and Cholewinski (eds), Migration and Human Rights: The United Nations Convention on Migrant Workers’ Rights (2009). 531

  Arts 1–6 and 7 ICMW, respectively.

532

  Arts 8–35 and 36–56 ICMW, respectively.

533

  Arts 57–63 ICMW.

534

  Arts 72–78 ICMW. On which, see generally section 5.2, ‘Human rights treaty bodies’.

535

  Arts 79–84 and 85–93 ICMW, respectively.

536

  GA Res 61/106 (2006).

537

  Prior instruments in the area include the Declaration on the Rights of Mentally Retarded Persons, GA Res 2856/26 (1971); the Declaration on the Rights of Disabled Persons, GA Res 3447/30 (1975); and the Standard Rules on the Equalization of Opportunities for Persons with Disabilities, GA Res 48/96 (1993). 538

  GA Res 56/168 (2001). Earlier attempts to draft a convention on the subject failed. Quinn and Degener, Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability (2002), 32. Participation in the ad hoc Committee was open to member states and observers of the UN. Other actors, such as UN entities and human rights treaty bodies, were invited to make contributions to the work of the ad hoc Committee. 539

  Kayess and French, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’ (2008) 8 HRLR 1, 18. GA Res 56/168 (2001) had requested the Secretary-General to ‘provide the Ad Hoc Committee with the facilities necessary for the performance of its work’. 540

  On the drafting process, see Kayess and French, n 539, 17–19.

541

  GA Res 61/106 (2006).

542

  Art 1 CRPD.

On the Convention, see Arnardóttir and Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (2009); (2007) 34 Syracuse JIL and Commerce 287–671 (symposium); Stein and Lord, ‘Monitoring the Convention on the Rights of Persons with Disabilities: Innovations, Lost Opportunities, and Future Potential’ (2010) 32 HRQ 689; Broderick, The Long and Winding Road to Equality

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and Inclusion for Persons with Disabilities: the United Nations Convention on the Rights of Persons with Disabilities (2015). 543

  Arts 10–30 CRPD.

544

  Arts 8 and 28 CRPD, respectively. See Kayess and French, n 539, 20 and 32–3.

545

  Arts 34–9 and 40–50 CRPD, respectively.

546

  Art 40 CRPD.

547

  GA Res 61/106 (2006).

548

  The procedures were separated out into a different instrument as a result of a compromise between states that were in favour of and against the establishment of a new treaty body. See Kayess and French, n 539, 19. 549

  GA Res 61/177 (2007).

550

  GA Res 33/173 (1978). ECOSOC also requested the Commission to consider the matter with a view to making recommendations, and requested the Sub-Commission on Prevention of Discrimination and Protection of Minorities to consider the matter and provide recommendations to the Commission. ECOSOC Res 1979/38. The Sub-Commission recommended the creation of a Working Group: Sub-Commission on Human Rights, Res 5B (XXXII) (1979). 551

  Commission on Human Rights Res 20 (XXXVI) (1980).

552

  GA Res 47/133 (1992). The Sub-Commission had prepared a draft declaration, which was considered at an expert meeting. The amended draft was adopted by the SubCommission and transmitted to the Commission on Human Rights. The Commission established an intersessional open-ended Working Group to consider the draft, and the draft, as amended, was transmitted to the General Assembly for adoption. On the drafting process, see Scovazzi and Citroni, The Struggle against Enforced Disappearance and the 2007 United Nations Convention (2007), 248. 553

  Commission on Human Rights Res 2001/46 (2001).

554

  Commission on Human Rights Res 2001/46 (2001). The Working Group was to take into account, amongst other materials, the draft international convention that had been prepared by the Sub-Commission. For the Sub-Commission’s draft, see Report of the sessional working group on the administration of justice, UN Doc E/CN.4/Sub.2/1998/19, 19 August 1998, Annex. 555

  Report submitted by Mr Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances, pursuant to paragraph 11 of Commission resolution 2001/46, UN Doc E/CN.4/2002/71, 8 January 2002, paras 96–7. 556

  See Report of the Intersessional Open-Ended Working Group to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearances, UN Doc E/CN.4/2006/57, 2 February 2006. 557

  HRC Res 1/1 (2006).

558

  On the Convention, see McCrory, ‘The International Convention for the Protection of all Persons from Enforced Disappearance’ (2007) 7 HRLR 545; Scovazzi and Citroni, n 552; Ott, Enforced Disappearance in International Law (2011). 559

  Arts 1–25 CPED.

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560

  Arts 26–36 CPED. Some of the functions are different to those of the other treaty bodies. See para 22.213. 561

  Arts 37–45 CPED.

562

  Decision 1, in Report of the Conference of the States Parties to the International Convention for the Protection of All Persons from Enforced Disappearance on its first session, held on 19 December 2016, CED/CSP/2016/4 (18 January 2017), para 11. 563

  On the Genocide Convention, see Robinson, The Genocide Convention: A Commentary (1960); Schabas, Genocide in International Law (2008); Abtahi and Webb, The Genocide Convention (2008); Gaeta (ed), The UN Genocide Convention: A Commentary (2009); Tams, Berster, and Schiffbauer (eds), Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary (2014). 564

  See Robinson, Convention Relating to the Status of Refugees: A Commentary (1952); Takkenberg, The Collected Travaux Préparatoires of the 1951 Geneva Convention relating to the Status of Refugees (1990); Goodwin-Gill and MacAdam, The Refugee in International Law (2007); Zimmermann (ed), The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2011). 565

  One book of human rights documents lists some 35 standard-setting instruments and 20 conventions concluded under UN auspices: see Brownlie and Goodwin-Gill, Basic Documents on Human Rights (2006). Another list can be found at http://www2.ohchr.org/ english/law/index.htm#instruments. 566

  See Rodley and Pollard, n 493.

567

  See the Preliminary Report submitted by the Special Rapporteur on violence against women, its causes and consequences, Ms Radhika Coomaraswamy, in accordance with Commission on Human Rights resolution 1994/45, UN Doc E/CN.4/1995/42 (22 November 1994). 568

  See Errico, ‘The UN Declaration on the Rights of Indigenous Peoples is Adopted: An Overview’ (2007) 7 HRLR 756. 569

  The ICESCR refers to ECOSOC with respect to monitoring of the Covenant. A Working Group was initially established by ECOSOC to monitor compliance. This proved largely ineffectual, even when modified, with the UN Centre for Human Rights describing it as ‘less than ideal’ and states criticizing it. See, respectively, United Nations Centre for Human Rights, The Committee on Economic, Social and Cultural Rights: Fact Sheet No 16 (1996), 23; 981 UNYB 916. The working groups were subsequently reconstituted into the CESCR, which first met in 1987. The Committee is mandated to assist ECOSOC. See ECOSOC Res 1985/17. On the working groups and their transformation into the Committee, see Alston, ‘Out of the Abyss: The Challenges Confronting the New UN Committee on Economic, Social and Cultural Rights’ (1987) 9 HRQ 332; Craven, n 460, 35–42; 1978 UNYB 714–5; 1979 UNYB 856; 1980 UNYB 859; 1981 UNYB 915–21; 1982 UNYB 1088–91; 1983 UNYB 852; 1984 UNYB 832–4; 1985 UNYB 876–9. On the first two sessions of the Committee, see Alston and Simma, ‘First Session of the UN Committee on Economic, Social and Cultural Rights’ (1987) 81 AJIL 747; Alston and Simma, ‘Second Session of the UN Committee on Economic, Social and Cultural Rights’ (1988) 82 AJIL 603. 570

  Art 28(1) ICCPR; ECOSOC Res 1985/17; Art 8(1) ICERD.

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571

  Art 26(1) CPED; Art 17(1) CAT. A Committee of 10 persons was considered to suffice given the narrower subject matter of the CAT as compared with the ICCPR. See Burgers and Danelius, n 498, 152. 572

  Art 17(1) CEDAW provided that, upon entry into force of the Convention, the Committee was to consist of 18 members. Following ratification of, or accession to, the Convention by the 35th state party, the Committee would increase to 23 members. As 35 states had ratified the Convention prior to the first meeting of states parties at which the first members of the Committee were elected, the Committee was composed of 23 members from the start. See Boerefijn, ‘Article 17’ in Freeman, Chinkin, and Rudolf (eds), n 480, 476. Since the entry into force of the ICMW for the 41st state party, the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families is comprised of 14 members. At the time of entry into force of the Convention, the Committee consisted of 10 members. Art 72(1)(b) ICMW. The Committee on the Rights of Persons with Disabilities was made up of 12 members at the time of entry into force of the Convention; the number increased to 18 after an additional 60 ratifications or accessions took place. Art 34(2) CRPD. Following the 50th ratification of, or accession to, OP-CAT, the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is made up of 25 members. Prior to that time, the Subcommittee was made up of 10 members. Art 5(1) OP-CAT. 573

  Pursuant to Art 43(2) of the original CRC, the Committee consisted of 10 members. However, an amendment was proposed to increase the number of members to 18. See GA Res 50/155 (1995). The amendment entered into force in 2002 following acceptance by twothirds of states parties. 574

  Art 30(4) ICCPR; Art 8(4) ICERD; Art 17(4) CEDAW; Arti 17(1) CAT; Art 43(2) CRC; Art 72(2)(a) ICMW; Art 26(2) CPED; Art 34(5) CRPD; Art 7(1)(c) OP-CAT. 575

  ECOSOC Res 1985/17, operative para (c).

In 2014, in GA Res 68/268 (2014), the General Assembly recommended that ECOSOC ‘consider replacing the existing procedure for the election of experts to the Committee on Economic, Social and Cultural Rights with a meeting of States parties to the International Covenant on Economic, Social and Cultural Rights, while preserving the current structure, organization and administrative arrangement of the Committee as set forth in Council resolution 1985/17’. On the composition of, and elections to, the Committee, see Background Information on Enhancing and Strengthening the Expertise and Independence of Treaty Body Members: Note by the Secretariat, HRI/MC/2012/2, 18 April 2012. See also Nowak, n 451, 668–81; Craven, n 460, 42–9; Thornberry, n 470, 44; Boerefijn, n 572, 480; Nowak and McArthur, n 496, 590–604. 576

  Art 29(3) ICCPR; Art 8(1) ICERD; Art 17(1) CEDAW; Art 17(1) CAT; Art 43(2) CRC; Art 72(2)(b) ICMW; Art 26(1) CPED; Art 34(3) CRPD. On independence of members, see Background Information on Enhancing and Strengthening the Expertise and Independence of Treaty Body Members: Note by the Secretariat, HRI/MC/2012/2, 18 April 2012; Tomuschat, Human Rights: Between Idealism and Realism (2014), 219–22; Boerefijn, n 572, 480–1. 577

  Art 8(1) ICERD; Art 28(2) ICCPR; Art 17(1) CEDAW; Art 17(1) CAT; Art 43(2) CRC; Art 72(1)(b) ICMW; Art 26(1) CPED; Art 34(3) CRPD; Art 5(2) OP-CAT.

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578

  ECOSOC Res 1985/17, operative para (b). See also Art 26(1) CPED.

579

  Art 28(2) ICCPR. In practice, some members of the Committee have served previously on other treaty bodies or regional human rights courts. There has been a predominance of members with a legal background. On the composition of the Human Rights Committee and election of its members, see Opsahl, ‘The Human Rights Committee’ in Alston (ed), n 483, 372–8; Nowak, n 451, 506–28; Boerefijn, The Reporting Procedure under the Covenant on Civil and Political Rights (1999), 40–54. See also Art 17(1) CAT. Some have stressed the importance of having individuals with a legal background on the Committee against Torture: Ingelse, The UN Committee against Torture: An Assessment (2001), 94; others that individuals with expertise in ‘medicine, health administration, and, law enforcement’ are just as important: Byrnes, ‘The Committee against Torture’ in Alston (ed), n 483, 512. One former member of the Human Rights Committee has observed that ‘Given that it falls to the treaty bodies to interpret their respective conventions, that is, solemn legal instruments, and apply them to sometimes complex factual situations, it appears incongruous that more weight is not given to the value of people trained in the discipline that lays down the canons of interpretation of international treaties.’ Rodley, ‘The Role and Impact of Treaty Bodies’ in The Oxford Handbook of International Human Rights Law (ed Shelton, 2013), 624–5. 580

  Art 17(2) CAT. This is linked to a proposal during the drafting of the Convention for the Human Rights Committee to act as the monitoring body of the Convention. In practice, states have rarely heeded this exhortation. Members of the Committee against Torture who served as members of the Human Rights Committee include Christine Chanet (France), Andreas Mavrommatis (Cyprus), and Julio Prado Vallejo (Ecuador). Nowak and McArthur, n 496, 597–8. 581

  Art 43(2) CRC. See also Art 34(3) CRPD, referring to ‘recognized competence and experience in the field covered by the present Convention’. 582

  Art 5(2) OP-CAT.

583

  GA Res 68/268 (2014).

584

  Art 5(4) OP-CAT; Art 34(4) CRPD; Art 26(1) CPED.

585

  The gender composition of treaty bodies varies considerably. As at 1 January 2017, 96 per cent of members of the Committee on the Elimination of Discrimination against Women were women; 52 per cent of members of the Subcommittee on Prevention of Torture; 50 per cent of members of the Committee on the Rights of the Child; 20 per cent of the Committee on Enforced Disappearances; 6 per cent of the Committee on the Rights of Persons with Disabilities. See http://www.ohchr.org/EN/HRBodies/Pages/ ElectionsofTreatyBodiesMembers.aspx. See also Report of the chairpersons of the human rights treaty bodies on their twenty-first meeting, UN Doc A/64/280, 6 August 2009, para 18(d), noting that, when nominating and electing members, ‘States parties should give due consideration to equitable geographical distribution, independence of experts, representation of different forms of civilization and legal systems, balanced gender representation and expertise from various professional fields.’ The reference to ‘balanced gender representation’ has had little effect, with the Committee on the Rights of Persons with Disabilities being composed of one female member and 17 male members. 586

  Arts 34(3) and 4(3) CRPD.

587

  Art 34(4) CRPD.

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588

  Art 31(2) ICCPR. The precise phrasing varies: Art 8(1) ICERD, Art 17(1) CEDAW, and Art 34(4) CRPD also use this language; Art 5(3) OP-CAT refers to ‘equitable geographic distribution and to the representation of different forms of civilization and legal systems of the States Parties’; ECOSOC Res 1985/17, operative para (b), refers to ‘the representation of different forms of social and legal systems’. Some treaties do not refer to different forms of civilization. See, eg, Art 17(1) CAT; Art 26(1) CPED. Despite the treaty provisions, there is sometimes an inequitable geographical distribution of members of certain committees. See, eg, Report of the chairpersons of the human rights treaty bodies on their twenty-first meeting, UN Doc A/64/280, 6 August 2009, para 15, noting the ‘absence of African and Asian members on the [Subcommittee on Prevention of Torture] and the limited number of members from Eastern Europe in various treaty bodies’. 589

  Art 72(2)(a) ICMW.

590

  Art 32(1) ICCPR; ECOSOC Res 1985/17, operative para (c)(i); Art 8(5)(a) ICERD; Art 17(5) CAT; Art 17(5) CEDAW; Art 43(6) CRC; Art 72(5)(a) ICMW; Art 26(4) CPED; Art 34(7) CRPD; Art 9 OP-CAT. In the case of the CRPD, CPED, and OP-CAT, members are eligible for re-election ‘once’. The limits on re-election are designed to ensure the dynamism of the Committee. Stein and Lord, n 542, 695. In the case of the OP-CAT, the reference to ‘once’ has been interpreted to allow for re-election once, a break, and then a further election. 591

  Art 35 ICCPR; Art 17(8) CEDAW; Art 43(12) CRC; Art 72(8) ICMW; Art 34(12) CRPD.

592

  GA Res 56/272 (2001). Members do, however, receive a generous per diem.

For some time, the emolument consisted of $3,000 to members of the treaty body and $5,000 to its Chairperson. See, for the Human Rights Committee, GA Res 35/218 (1980). This level of emolument had itself been criticized as inadequate. See ‘Effective Implementation of International Instruments on Human Rights, including Reporting Obligations under International Instruments on Human Rights’, UN Doc A/44/668, Annex, para 106. The Secretary-General had proposed an increase of 25 per cent: see UN Doc A/ 53/643, UN Doc A/56/311. 593

  UN Doc A/62/40 (vol I), para 41; UN Doc A/57/40 (vol I), paras 21–3.

594

  Art 34(12) CRPD. Members of that treaty body also receive $1.

595

  For example, ECOSOC Res 1985/17, operative para (d), provides that the CESCR ‘shall meet annually for a period of up to three weeks, taking into account the number of reports to be examined by the Committee’. The Committee, in 1995, requested two annual meetings (‘Draft Resolution’, UN Doc E/1996/22-E/C.12/1995/18), a request granted by ECOSOC (Res 1995/39). Extraordinary sessions have been held to clear the backlog of the Committee’s work (UN Doc E/2003/22-E/C.12/2002/13, para 3; Draft Decision I, UN Doc E/1998/22-E/C. 12/1997/10; ‘Letter from the Chairperson of the Committee on Economic, Social and Cultural Rights to the President of the Economic and Social Council’, UN Doc E/2000/22-UN Doc E/C.12/1999/11; ECOSOC Decision 1999/287). Art 18(4) CAT provides that the Committee will meet at the times provided by its Rules of Procedure. Rule 1 of the Rules provides that the Committee shall meet as often as is necessary for the fulfilment of its mandate. The Committee has, on occasion, requested the convening of a third session, but the requests have not generally found favour. See UN Doc A/50/44, paras 207–9. The Committee subsequently requested that its first annual session be extended by a week, the annual session at the time lasting two weeks: UN Doc A/52/44, para 290; UN Doc A/53/44, paras 20–1. The Committee accordingly met for three weeks in May 1998. This became standard practice as of May 1999. The Committee has since requested further meeting time (UN Doc A/60/44, para 158) and a third exceptional session

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for two years so as to clear its backlog (UN Doc A/61/44, paras 80–5). Budgetary constraints prevented the Committee from meeting for its second session in 1988. 596

  Art 37(2) ICCPR provides that ‘After its initial meeting, the Committee shall meet at such times as shall be provided in its rules of procedure.’ The Rules of Procedure, Rule 1, provides that the Committee ‘shall hold sessions as may be required for the satisfactory performance of its functions’. Rule 2 goes on to state that ‘[t]he Committee shall normally hold three regular sessions each year’, while Rule 3 authorizes the convening of special sessions ‘by decision of the Committee’. The Committee, at its second session, decided to meet three times per year. However, budgetary constraints have occasionally forced the Committee to cancel a session. 597

  Art 20(1) CEDAW provides, in relevant part, that ‘[t]he Committee shall normally meet for a period of not more than two weeks annually’. Rule 1 of the Rules of Procedure, on the other hand, provides that the Committee ‘shall hold such session as may be required for the effective performance of its functions’. The two-week period specified in the Convention was frequently criticized as being too short for the Committee to complete its work. The Committee subsequently asked the General Assembly for, and was granted, additional meetings in 1988 (Decision 1 of CEDAW, UN Doc A/42/38, para 580). A similar request the following year did not meet with the approval of the General Assembly (GA Res 43/100 (1988)). From 1993, the Committee was authorized to meet for three weeks annually. Two three-week sessions were subsequently requested by the Committee (Decision 15/I, UN Doc A/51/38). A formal amendment to Art 20(1) has been proposed and accepted (GA Res 50/202 (1996)) but is awaiting ratification by two-thirds of states parties. From 1997 to 2005, the Committee met twice annually, on a temporary basis pending entry into force of the amendment to Art 20(1) (see GA Res 47/94 (1992)). Subsequently, the Committee requested three annual three-week sessions, particularly in light of the entry into force of the Optional Protocol: see Decision 31/I, in UN Doc A/59/38 (Part II); Decision 33/I, in UN Doc A/60/38 (Part II; Decision 37/I, in UN Doc A/62/38). In 2006, the General Assembly approved the request for an increase in sessions and authorized three annual three-week sessions as a temporary measure (GA Res 60/230 (2006)). Pursuant to GA Res 62/218 (2008), this was extended from January 2010 until the entry into force of the amendment. Extraordinary (UN Doc A/51/38, para 34) or informal (UN Doc A/59/38 (Part I), para 421; UN Doc A/61/38 (Part I), para 366) meetings of the Committee have been financed by individual states parties. An extraordinary session was held in 2002, with the support of the General Assembly, to assist the clearing of the backlog of states parties’ reports (Decision 25/I, in UN Doc A/56/38 (Part II) and UN Doc A/57/38 (Part I), para 10). The Committee also met in parallel chambers for this, as authorized by the General Assembly, over a number of sessions. 598

  Art 43(1) CRC provides that ‘[t]he Committee shall normally meet annually’ and that ‘[t]he duration of the meetings…shall be determined, and reviewed, if necessary, by a meeting of States Parties…subject to the approval of the General Assembly’. The Committee recommended meeting for two regular sessions on an annual basis, and this was authorized by the General Assembly (GA Res 47/112 (1992)). This was increased in 1994 to two regular sessions and one special session given the Committee’s workload (CRC/C/20, 4). The Committee subsequently requested to meet for three regular sessions on an annual basis (CRC/C/24, 4), a request that met with the approval of the General Assembly (GA Res 49/211 (1994)). As authorized by the General Assembly, the Committee also met in parallel chambers to consider reports in an attempt to clear its backlog. GA Res 59/261 (2004); GA Res 67/161 (2012).

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599

  GA Res 68/268 (2014), paras 26–8, decided on a new method of allocating meeting time to nine of the 10 treaty bodies, to be amended biennially. The Subcommittee on the Prevention of Torture was not included as it does not consider state party reports. See further, section 5.2.4, ‘Treaty body reform’. 600

  According to the Status of the human rights treaty body system: Report of the Secretary-General, UN Doc A/71/118, 18 July 2016, para 26, ‘The meeting time adjustments resulting from resolution 68/268 took effect on 1 January 2015 and brought the total meeting time entitlement of the treaty body system to 96.6 weeks per year until the end of 2017.…As a result, the treaty bodies in 2015 had 20.6 weeks more of meeting time in total than before the adoption of resolution 68/268. On average, treaty bodies met for approximately two and half months in 2015 in Geneva, some for sessions of up to four weeks.’ Notwithstanding the additional meeting time that commenced for the treaty bodies in 2015, the overall backlog of communications increased due to a sharp increase in the number of individual communications: UN Doc A/71/118 (2016), paras 31, 37. For 2018–19, the annual meeting time of the treaty bodies, with the exception of the Subcommittee on Prevention of Torture, ‘should increase from the current 92.6 weeks to 93.2 weeks’: UN Doc A/71/118 (2016), para 39. 601

  As such, in accordance with GA Res 68/268 (2014), for the 2018–19 period, the meeting time of the Human Rights Committee will increase from 14.7 to 19.8 weeks per year and the meeting time for the Committee on the Rights of Persons with Disabilities will increase from 8.5 to 10 weeks per year. However, the meeting time for the Committee on the Rights of the Child will decrease from 15 to 12 weeks, and the meeting time of the Committee on Economic, Social and Cultural Rights will be reduced from 10 to 8 weeks. UN Doc A/71/118, para 40. 602

  Historically, certain treaty bodies held some of their sessions in New York, and also met informally outside UN premises. The Committee on the Elimination of Racial Discrimination used to meet at UN Headquarters in New York and in Geneva. Occasional sessions were held in Paris and Vienna. There have been regular suggestions by members of the Committee that it should hold one of its annual meetings in New York due to the lack of diplomatic representatives present in Geneva. See, eg, UN Doc A/58/18, Letter of Transmittal; UN Doc A/57/18, Letter of Transmittal. See also Decision 8 of the Committee (19 August 1998), reproduced at UN Doc A/53/18, para 14; Decision 2 (XL) of the Committee (13 August 1991), reproduced in A/ 46/18, Chapter VII. Art 37(3) ICCPR provides that ‘The Committee shall normally meet at the Headquarters of the United Nations or at the United Nations Office at Geneva.’ Traditionally, the spring session of the Human Rights Committee was held in New York and the two other sessions in Geneva. However, budgetary constraints sometimes forced the Committee to meet in Geneva rather than New York. See, eg, UN Doc A/57/40 (vol I), para 39; UN Doc A/42/40, para 4. The Committee has stressed the importance of holding one of its annual sessions in New York (UN Doc A/44/40, para 27) in order to be closer to, and be in touch with, other UN bodies. It has also voiced concern at a proposal of the Advisory Committee on Administrative and Budgetary Questions (ACABQ) that it sit entirely in Geneva (UN Doc A/ 45/40, paras 15–18), as this would constitute a de facto amendment of the Covenant (A/ 45/40, Annex VII). Equally, members of the Committee have stressed the importance of meeting outside of New York and Geneva, particularly in developing states, a request noted by the General Assembly: GA Res 34/45 (1979). Rule 5 of the Rules of Procedure provides

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that ‘[a]nother place for a session may be designated by the Committee in consultation with the Secretary-General’. ECOSOC Res 1985/17, operative para (d), provides that the CESCR would alternate its sessions between Geneva and New York. This does not happen in practice, with meetings taking place in Geneva. On occasion, the Committee has requested meeting in New York so as to improve the profile of the work of the Committee. See Draft Decision II, UN Doc E/ 1998/22-E/C.12/1997/10; ‘Letter from the Chairperson of the Committee on Economic, Social and Cultural Rights to the President of the Economic and Social Council’, UN Doc E/ 2000/22-E/C.12/1999/11. The Committee against Torture is authorized to meet at locations other than Geneva: Rules of Procedure, Rule 4. However, it has taken the view that it is not necessary for it to hold sessions at the UN Headquarters in New York. See UN Doc A/54/44, para 17. Art 20(2) CEDAW provides that ‘The meetings of the Committee shall normally be held at United Nations Headquarters or at any other convenient place as determined by the Committee.’ A similar rule is found in Rule 5 of the Committee’s Rules of Procedure. At its outset, the Committee met in New York and in Vienna. For a time, this was CEDAW’s preferred approach (General Recommendation 7), despite the view of the Director-General of the UN Office at Vienna that meeting in New York was more expensive than meeting in Vienna (UN Doc A/44/38, para 6), and that by meeting in New York the Committee suffered from inferior servicing by the Secretariat and fewer reference materials (UN Doc A/45/38, para 7). On the other hand, meeting in New York had benefits for those states parties without a permanent diplomatic presence in Vienna. For a time, the Committee met solely in New York, a decision that was made without consulting the Committee itself. See Cartwright, ‘The Committee on the Elimination of Discrimination against Women’ in Women and International Human Rights Law (vol 2, eds Askin and Koenig, 2000), 169. The CEDAW Committee subsequently requested location in Geneva (Decision 14/II in UN Doc A/50/38; UN Doc A/54/38/Rev.1 (Part II), para 325), but the UN Secretary-General decided that the Committee should continue to meet in New York (UN Doc A/56/38 (Part II), para 19). Following the servicing of the Committee by OHCHR, a decision was taken for the Committee to meet in Geneva and New York. It has also held informal meetings, funded by states, in Lund, Utrecht, Berlin (twice), Madrid, and Paris. See Boerefijn, ‘Article 18’ in Freeman, Chinkin, and Rudolf (eds), n 480, 490. Art 75 ICMW provides that the Committee shall meet at UN Headquarters. However, Rule 3 of the Rules of Procedure provides that meetings of the Committee shall normally take place in Geneva, with the possibility for meetings to take place elsewhere. In practice, meetings take place in Geneva. 603

  Art 36 ICCPR; Art 18(3) CAT; Art 17(9) CEDAW; Art 43(11) CRC; Art 72(7) ICMW; Art 34(11) CRPD; Art 25(2) OP-CAT. See also Art 26(7) CPED. Unusually, Art 17(7) CAT provides that states parties are ‘responsible for the expenses of the members of the Committee while they are in performance of Committee duties’, and Art 18(5) provides that ‘States Parties shall be responsible for expenses incurred in connection with the holding of meetings of the States Parties and of the Committee, including reimbursement to the United Nations for any expenses, such as the cost of staff and facilities, incurred by the United Nations.’ An amendment, awaiting acceptance by twothirds of states parties before it enters into force, provides that the Committee will be financed out of the regular UN budget. The Committee is being so financed on a provisional basis (GA Res 47/111 (1992)). Nowak and McArthur, n 496, 623, note that ‘[t]his provisional

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solution of simply overruling non-functioning provisions of the Convention seems to have become a permanent solution’ (emphasis and footnote omitted). 604

  Prior to 1 January 2008, the Committee on the Elimination of Discrimination against Women was serviced by the UN Division for the Advancement of Women, which was part of the Centre for Social Development and Humanitarian Affairs based in Vienna. The servicing of the Committee thus differed from that of the other treaty bodies, which were serviced by the OHCHR out of Geneva. Criticism had been made of the Geneva/Vienna separation. See, eg, Byrnes, ‘The “Other” Human Rights Treaty Body: The Work of the Committee on the Elimination of Discrimination against Women’ (1989) 14 Yale JIL 1, 60; Cartwright, n 602, 169. It has also been said that, initially, ‘the Secretariat…had little experience in dealing with an independent body of experts’: Evatt, ‘Finding a Voice for Women’s Rights: The Early Days of CEDAW’ (2003) 14 George Washington International Law Review 515, 521. Indeed, there were strong complaints of inadequate servicing (see, eg, UN Doc A/49/38, paras 801–4), with some contending that this was related to the low priority afforded to the human rights of women (Jacobson, n 483, 451). The particularly precarious position of the CEDAW Committee, even as compared with the other treaty bodies, had been observed by the General Assembly. See GA Res 43/100 (1988). This would seem to have changed over time, with one member of the Committee subsequently describing the level of servicing provided as ‘excellent’: Schöpp-Schilling, ‘Treaty Body Reform: The Case of the Committee on the Elimination of Discrimination against Women’ (2007) 7 HRLR 201, 219. The Committee had, on several occasions, requested to be serviced by the then Centre for Human Rights in Geneva (Decision 14/II in UN Doc A/50/38; UN Doc A/54/38/Rev.1 (Part II), para 325) requests that were turned down by the Secretary-General (UN Doc A/56/38 (Part II), para 19). The OHCHR subsequently took over the servicing of the Committee. On the move from the Division for the Advancement of Women to OHCHR, see Schöpp-Schilling, ibid, 218–23. 605

  The Human Rights Committee has consistently requested additional resources (eg UN Doc A/62/40 (vol I), para 40), or has expressed its concerns on the inadequate state of existing resources (e.g. UN Doc A/50/40 (vol I), paras 19, 25; UN Doc A/70/40, para 46). Such was the financial situation that the then Chair of the Committee stated that she was ‘seriously considering resigning from the Committee since she was ashamed of the way it was treating States parties and authors of communications’ (CCPR/C/SR.1770, para 30). The need for further staffing and facilities has been recognized, on occasion, by the General Assembly (GA Res 44/135 (1989)). The Human Rights Committee has not been the only body to request additional resources. The treaty bodies regularly request additional support. See, eg, the Committee on the Rights of the Child: CRC/C/20, 5; CRC/C/15/Add.65, para 225; the Committee against Torture: UN Doc A/50/44, para 20; UN Doc A/59/44, para 14; the Committee on the Elimination of Discrimination against Women: UN Doc A/69/38, 87; and the chairpersons of the treaty bodies: Report of the chairpersons of the human rights treaty bodies on their twenty-first meeting, UN Doc A/64/280, Annex I, paras 24 and 49(d). Extra-budgetary resources are provided by some states to support the treaty bodies. 606

  Art 17(1) CEDAW provides that the Committee on the Elimination of Discrimination against Women was established ‘[f]or the purpose of considering the progress made in the implementation’ of the Convention. Along similar lines, Art 43(1) CRC provides that the Committee on the Rights of the Child was established ‘for the purpose of examining the progress made by States Parties in achieving the realization of the obligations undertaken in the present Convention’. Art 72(1)(a) ICMW provides that the Committee was established for the purpose of ‘reviewing the application’ of the Convention. Other conventions do not

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set out a general purpose, instead noting that the committee is to carry out particular listed functions. See, eg, Art 28 ICCPR; Art 34(1) CRPD; Art 26(1) CPED. 607

  Additional functions have been given to certain treaty bodies through optional protocols to the relevant convention. For example, states parties to the Optional Protocol to the Convention on the Rights of Persons with Disabilities recognize the competence of the Committee on the Rights of Persons with Disabilities ‘to receive and consider communications from or on behalf of individuals or groups of individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of the provisions of the Convention’: Art 1(1) OP-CRPD. 608

  With some exceptions, the functions of the treaty bodies have been modelled on the functions of those that were then in existence. The functions of the Committee on the Elimination of Racial Discrimination were modelled, inter alia, on the bodies established by the ICCPR, ICESCR, and the European Convention on Human Rights (ECHR). Schwelb, n 470, 1082. Along similar lines, with some exceptions, the Committee against Torture was modelled on the treaty bodies that were then in existence. Burgers and Danelius, n 498, 151; Byrnes, n 579, 510. 609

  Art 40(1) ICCPR; Arts 16(1) and 17(2) ICESCR; Art 9(1) ICERD; Art 18 CEDAW; Art 19(1) CAT; Art 44(1) CRC; Art 73(1) ICMW; Art 29(1) CPED; Art 35(5) CRPD. The different treaties provide more or less detail on the subject. For example, Art 40(1) and (2) ICCPR provides that this includes ‘the progress made in the enjoyment of those rights’ and ‘the factors and difficulties, if any, affecting the implementation’ of the Covenant. See also Arts 16(1) and 17(2) ICESCR; Art 18(2) CEDAW. Art 9(1) ICERD specifies that states parties are to report on ‘the legislative, judicial, administrative or other measures which they have adopted and which give effect to the provisions of [the] Convention’. See also Art 18(1) CEDAW. Pursuant to Art 44(2) CRC, reports shall also contain ‘sufficient information to provide the Committee with a comprehensive understanding of the implementation of the Convention in the country concerned’. For its part, Art 73(2) ICMW provides that reports of states parties are required to contain ‘information on the characteristics of migration flows in which the State Party concerned is involved’. 610

  On consideration of state party reports, see Ando, ‘The Development of the Human Rights Committee’s Procedure to Consider States Parties’ Reports under Article 40 of the International Covenant on Civil and Political Rights’ in Promoting Justice, Human Rights and Conflict Resolution through International Law (ed Kohen, 2007); Nowak, n 451, 712–52; Kälin, ‘Examination of State Reports’ in UN Human Rights Treaty Bodies: Law and Legitimacy (eds Keller and Ulfstein, 2012); Thornberry, n 470, 45–50; Boerefijn, n 602; Nowak and McArthur, n 496, 624–58; Edelenbos, ‘Committee on Migrant Workers and Implementation of the ICRMW’ in de Guchteneire, Pecoud, and Cholewinski (eds), n 530, 104–11. The reporting process has its critics. It has been described as ‘unwieldy, routine, repetitious and overlapping’: de Zayas, ‘The Examination of Individual Complaints by the United Nations Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights’ in Alfredsson et al (eds), n 250, 73. There has also been criticism of the oral dialogue process. See Bayefsky, The UN Human Rights Treaty System: Universality at the Crossroads (2001), 60–1. There have also been concerns regarding reporting fatigue. However, the importance of state party reporting has also been recognized. See, eg, GA Res 43/115 (1988). The simplified reporting procedure could prove beneficial in this regard, on which see para 22.177.

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611

  Harmonized guidelines on reporting under the international human rights treaties, including guidelines on a core document and treaty-specific documents, HRI/GEN/2/Rev.6, 3 June 2009, para 8. See also CESCR, General Comment 1: Reporting by States Parties, UN Doc E/1989/22; Committee on the Rights of the Child, CRC/C/73, para 147. 612

  Harmonized guidelines on reporting under the international human rights treaties, n 612, para 9. The document continues: The report preparation process thus offers an occasion for each State party to: (a)  Conduct a comprehensive review of the measures it has taken to harmonize national law and policy with the provisions of the relevant international human rights treaties to which it is a party; (b)  Monitor progress made in promoting the enjoyment of the rights set forth in the treaties in the context of the promotion of human rights in general; (c)  Identify problems and shortcomings in its approach to the implementation of the treaties; and (d)  Plan and develop appropriate policies to achieve these goals. …The reporting process should encourage and facilitate, at the national level, public scrutiny of government policies and constructive engagement with relevant actors of civil society conducted in a spirit of cooperation and mutual respect, with the aim of advancing the enjoyment by all of the rights protected by the relevant convention. See further Kälin, n 610, 35–41. 613

  See, eg, Harmonized guidelines on reporting under the international human rights treaties, n 611; Human Rights Committee, Guidelines for the treaty-specific document to be submitted by States parties under article 40 of the International Covenant on Civil and Political Rights, CCPR/C/2009/1, 22 November 2010; CESCR, Guidelines on treaty-specific documents to be submitted by states parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, UN Doc E/C.12/2008/2, 24 March 2009; Guidelines for the CERD-specific document to be submitted by States Parties under Article 9, paragraph 1, of the Convention, CERD/C/2007/1, 13 June 2008. See also the simplified reporting procedure, at para 22.177; Simplified reporting procedure: Note by the Secretariat, HRI/MC/2014/4, 14 April 2014. 614

  Art 40(1) ICCPR; Art 17(1) ICESCR; Art 9(1) ICERD; Art 18(1) CEDAW; Art 19(1) CAT; Art 44(1) CRC; Art 73(1) ICMW; Art 35(1) and (2) CRPD. In so far as the Human Rights Committee is concerned, the date on which a periodic report is due to be submitted is set by the Human Rights Committee: Rules of Procedure, Rules 66 and 71(3). On occasion, the Human Rights Committee has requested states to submit supplementary reports. This procedure has been used in two types of situations—to request further information after the submission of an incomplete report and to request the submission of early reports. The latter occurred primarily in the early 1990s in ‘emergency situations’ (Iraq (1991) (UN Doc A/46/40, para 40 and Annex VI); the Federal Republic of Yugoslavia (1991) (UN Doc A/47/40, para 37 and Annex VII); Peru (1992) (UN Doc A/47/40, para 41 and Annex VII); Bosnia and Herzegovina, Croatia, and the Federal Republic of Yugoslavia (1992) (UN Doc A/48/40 (Part I), para 30 and Annex VII); Angola and Burundi (1993) (UN Doc A/49/40 (vol I), para 61); Haiti and Rwanda (1994) (UN Doc A/50/40 (vol I), para 36)). Where the report revealed a ‘grave human rights situation’, the Committee may request the state to accept a mission made up of members of the Committee (UN Doc A/ 50/40 (vol I), para 39). One former member of the Human Rights Committee has noted that From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

‘the Human Rights Committee has rarely followed the practice in recent times, because of the difficulty in agreeing from which states to request submissions’: Rodley, n 579, 629. On the submission of reports in emergency situations, see Boerefijn, n 579, 255–83. Pursuant to Art 19(1) CAT, states parties are required to submit any other report that is requested by the Committee. This has included additional reports in situations in which the earlier reports were incomplete (Rules of Procedure, Rule 67) and reports to address particular events that were taking place within the state (UN Doc A/52/44, para 25). In 2015, the Committee against Torture requested that Burundi submit a special report on certain listed issues. See UN Doc A/71/44, para 36. ECOSOC Res 1988/4 and Rule 58(2) of the Rules of Procedure of the CESCR provide for the submission of the initial report of states parties to the ICESCR within two years. Art 17(1) ICESCR had provided for submission within one year. Reports were submitted pursuant to a programme established by ECOSOC following consultation with states parties and relevant UN specialized agencies. See ECOSOC Res 1988 (LX). ECOSOC Res 1988/4 and Rule 58(2) of the Rules of Procedure provide for periodic reports to be submitted every five years. Given the backlog in the reports of states parties yet to be considered by the Committee, the Committee has taken the view that periodic reports should be submitted five years after the previous report had been considered, although this may be reduced in certain circumstances (UN Doc E/2001/22-E/C.12/2000/21, para 637). The Committee on the Elimination of Discrimination against Women has noted the possibility of requesting ad hoc reports where there is ‘reliable and adequate information indicating grave or systematic violations of women’s human rights, in whatever situation’, and the violations in question are ‘those that are gender-based or directed at women because of their sex’: UN Doc A/59/38 (2004), para 438. This has been done on a few occasions. See, eg, Bosnia and Herzegovina (CEDAW/C/SR.253), the then Federal Republic of Yugoslavia (CEDAW/C/YUG/SP; CEDAW/C/SR.254); Croatia (CEDAW/C/CRO/SP.1); Rwanda (CEDAW/C/SR.306); and the Democratic Republic of the Congo (CEDAW/C/SR. 317). See also India, Report on an exceptional basis, CEDAW/C/IND/SP.1, 1 December 2009; Boerefijn, n 602, 500–1. Exceptionally, Art 29(1) CPED provides only for the submission of an initial report, and Art 29(4) provides that ‘The Committee may also request States Parties to provide additional information on the implementation of this Convention.’ 615

  In addition to reports submitted by states parties, the Human Rights Committee has considered a report submitted by the UN Interim Administration Mission in Kosovo with respect to Kosovo (UN Doc A/61/40 (vol I), para 85). Certain treaties provide for the submission of reports on the part of UN organs and specialized agencies. Pursuant to Art 18 ICESCR, UN specialized agencies may be asked to report to ECOSOC on the progress made in achieving observance of the Covenant rights within the scope of their activities. Along similar lines, Art 22 CEDAW provides that ‘The Committee may invite the specialized agencies to submit reports on the implementation of the Convention in areas falling within the scope of their activities.’ Art 38 CRPD refers to ‘specialized agencies and other United Nations organs’ in this regard. 616

  See, eg, Art 40(2) and (4) ICCPR; Art 9(1) ICERD; Art 19(3) CAT; Art 73(1) ICMW; Art 29(3) CPED; Art 36(1) CRPD. On the process of the Human Rights Committee, see Ando, n 610; Nowak, n 451, 712–52; Kälin, ‘Examination of State Reports’ in Keller and Ulfstein (eds), n 610, 20–9.

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617

  CESCR, Report on the forty-fourth and forty-fifth sessions (3–21 May 2010, 1–10 November 2010), UN Doc E/2011/22-E/C.12/2010/3, para 22. The pre-sessional Working Group, established pursuant to ECOSOC Res 1988/4, is comprised of five Committee members, reflecting geographic diversity. It meets for five days at a time. 618

  CESCR, Report on the forty-fourth and forty-fifth sessions, n 617, para 25. The Working Group also has before it a country analysis prepared by the secretariat, and other pertinent information provided to the secretariat by individuals, bodies, and NGOs (ibid, para 26). The ‘Guidance note for States parties on the constructive dialogue with the human rights treaty bodies’ notes that ‘Treaty bodies may appoint members to serve as country rapporteurs, who may then act as focal points for introducing and coordinating the constructive oral dialogue with the State party delegation. Treaty bodies may also decide to mandate a broader group of members to act in this capacity.’ Report of the Chairs of the human rights treaty bodies on their twenty-sixth meeting, UN Doc A/69/285, 11 August 2014, Annex I: Guidance note for States parties on the constructive dialogue with the human rights treaty bodies. 619

  CESCR, Report on the forty-fourth and forty-fifth sessions, n 617, para 27. The Committee also makes clear to the state party that the ‘list is not intended to be exhaustive and it should not be interpreted as limiting or in any other way prejudging the type and range of questions which members of the Committee might wish to ask’. The list of issues aids discussion of the report and facilitates more focused consideration of particular issues. 620

  See Report of the Committee against Torture, Thirty-seventh session (6–24 November 2006) and Thirty-eighth session (30 April–18 May 2007), UN Doc A/62/44, paras 23 and 24. The procedure does not apply to states parties’ initial reports. 621

  The LOIPR is transmitted at least one year before the report is due. Committee against Torture, Status of the optional reporting procedure of the Committee against Torture and proposals for its revision, CAT/C/47/2, 27 September 2011, para 4. 622

  ibid, para 5.

623

  Out of 75 states parties that were due to report to the Committee between 2009 and 2012, 55 accepted the optional reporting procedure (73 per cent); three did not accept it (4 per cent); and 17 did not respond (23 per cent) (ibid, paras 17–18). For the figures for the other treaty bodies, see Status of the human rights treaty body system: Report of the Secretary General, Supplementary Information, UN Doc A/71/118, 18 July 2016, Annex XIV. 624

  See Human Rights Committee, Focused reports based on replies to lists of issues prior to reporting (LOIPR): Implementation of the new optional reporting procedure (LOIPR procedure), CCPR/C/99/4, 29 September 2010; Report of the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, Thirteenth session (22 November–3 December 2010) and Fourteenth session (4–8 April 2011), UN Doc A/66/48, para 26; Guidelines on periodic reporting to the Committee on the Rights of Persons with Disabilities, including under the simplified reporting procedures, CRPD/C/3, 2 September 2016. See generally Simplified reporting procedure: Note by the Secretariat, HRI/MC/ 2014/4, 14 April 2014. 625

  See Status of the human rights treaty body system: Report of the Secretary General, Supplementary Information, UN Doc A/71/118, 18 July 2016, Annex XIV. In GA Res 68/268 (2014), the General Assembly encouraged the treaty bodies ‘to offer to States parties for their consideration the simplified reporting procedure and to set a limit on the number of the questions included’, and encouraged states parties ‘to consider the possibility of using the simplified reporting procedure, when offered, to facilitate the

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preparation of their reports and the interactive dialogue on the implementation of their treaty obligations’. 626

  The state will have 15–30 minutes for its opening statement: Report of the Chairs of the human rights treaty bodies on their twenty-sixth meeting, n 618. It is recommended that the delegation from the state party for the constructive dialogue is led ‘by a senior State figure with a responsibility for the implementation of the respective treaty’, and that the delegation also includes ‘representatives with relevant expertise from key executive and other authorities responsible for the implementation of the treaty concerned, with due regard for expertise and gender balance’ (ibid). 627

  In GA Res 68/268 (2014), the General Assembly encouraged the treaty bodies ‘to collaborate towards the elaboration of an aligned methodology for their constructive dialogue with the States parties, bearing in mind the views of States parties as well as the specificity of the respective committees and of their mandates, with the aim of making the dialogue more effective, maximizing the use of the time available and allowing for a more interactive and productive dialogue with States parties’. The chairs of the treaty bodies expressed support for these objectives, while expressing the need for flexibility on the part of the Committee ‘to shape the dialogue in accordance with its specificity’, and invited the treaty bodies to consider the Guidance note for States parties on the constructive dialogue with the human rights treaty bodies: Report of the Chairs of the human rights treaty bodies on their twenty-sixth meeting, n 618, paras 42 and 46. The Guidance note provides, inter alia, that ‘During the dialogue concerning an initial report, the treaty bodies seek to cover most or all of the treaty provisions, as well as any thematic priorities or challenges that the Committee has identified. The dialogue concerning periodic reports is focused on the issues or thematic priorities identified by the treaty bodies. Such priority issues may include previous concluding observations, challenges identified in the list of issues, and possible new developments in the State party which have come to the Committee’s attention.’ And ‘Questions posed by treaty body members may be clustered by articles, themes or subthemes, reflecting the substantive provisions of the respective treaty. Following the responses of the State party, further rounds of the dialogue are held until all clusters have been covered, bearing in mind the need to give the State party reasonable time to answer the questions posed by the treaty body members. Treaty body members may pose follow-up questions to the responses of the State party.’ Most of the treaty bodies have adopted or endorsed the guidance. See Status of the human rights treaty body system: Report of the Secretary General, Supplementary Information, UN Doc A/71/118, 18 July 2016, Annex XV. Some states have used the constructive dialogue to actively engage with the Committee; others send unqualified representatives; still others ‘filibuster’. See Higgins, ‘Ten Years on the Human Rights Committee: Some Thoughts upon Parting’ (1996) EHRLR 570. Lack of knowledge on the part of state representatives has frequently been charged: see, eg, Jacobson, n 483, 458. On the early years of the examination of state party reports, see Tomuschat, n 576, 175–8. 628

  Report of the Chairs of the human rights treaty bodies on their twenty-sixth meeting, n 618. 629

  An additional session of up to three hours may also be convened (ibid). On the constructive dialogue, see Constructive dialogue between treaty bodies and States parties: Note by the secretariat, HRI/MC/2014/3, 14 April 2014.

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630

  See, eg, CESCR, Report on the forty-fourth and forty-fifth sessions, n 617, para 30.

Certain treaty bodies used the designation of ‘concluding comments’ rather than ‘concluding observations’. However, over time, as a result of harmonization, these bodies have adopted the language of ‘concluding observations’. See, eg, the Committee on the Elimination of Discrimination against Women, Decision 40/III, in UN Doc A/63/38, 2. 631

  In the early years of the first treaty bodies, the possibility of adopting concluding observations was controversial. Initially, there had been some scepticism as to whether the Human Rights Committee could make any comments on state party reports, with Art 40(4) ICCPR simply providing that ‘The Committee shall study the reports submitted by the States Parties to the present Covenant. It shall transmit its reports, and such general comments as it may consider appropriate, to the States Parties.’ A compromise was later worked out by which general comments would be prepared, which were not addressed to an individual state. On general comments, see section 5.2.3.4, ‘General comments’. In 1984, at the end of the consideration of the state party report of the German Democratic Republic, ‘a number of members asked for the floor and stated under their personal responsibility what had been, in their view, the main results of the dialogue’. This was included in the summary records as ‘General observations’ and then ‘Concluding observations of individual members’. In 1992, following the state party report of Algeria, comments were adopted that reflected the view of the Committee as a whole. Concluding observations were thus introduced. Around the same time, the Committee on the Elimination of Racial Discrimination and the CESCR also introduced concluding observations. Tomuschat, n 576, 180–1. See also Nowak, n 451, 568–73; Thornberry, n 470, 47–8. Over time, concluding observations on the part of the treaty bodies have become accepted, including by states parties to the treaties, and it can no longer be disputed that treaty bodies have the competence to issue concluding observations. 632

  See, eg, CESCR, Report on the forty-fourth and forty-fifth sessions, n 617, para 31.

The structure of concluding observations has changed over time. At first, concluding observations of, eg, the Committee against Torture did not have a particular structure. These subsequently took the form of conclusions and recommendations (UN Doc A/48/44), before being further subdivided into sections indicating positive factors, factors and difficulties impeding application of the convention, subjects of concern, and recommendations (UN Doc A/49/44). Subsequently introduced into the concluding observations were specific issues on which the state party was to report within one year (see the observations reproduced in UN Doc A/58/44). Over time, the concluding observations of treaty bodies have adopted a largely standard form, ‘introduction, positive aspects, factors and difficulties impeding the implementation of the Covenant, principal subjects of concern and suggestions and recommendations’: UN Doc E/2007/22-E/C. 12/2006/1, para 32. In GA Res 68/268 (2014), the General Assembly encouraged the treaty bodies ‘to adopt short, focused and concrete concluding observations, including the recommendations therein, that reflect the dialogue with the relevant State party, and to this end further encourages them to develop common guidelines for the elaboration of such concluding observations, bearing in mind the specificity of the respective committees and of their mandates, as well as the views of States parties’. The chairs of the treaty bodies invited the committees to consider the framework for concluding observations set out in ‘Framework for the concluding observations’, but noted the need for treaty bodies to retain discretion to

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adapt the framework to the specificities of the relevant treaties: Report of the Chairs of the human rights treaty bodies on their twenty-sixth meeting, n 618, para 54. The Framework provides for four sections. An introduction ‘should describe the stages of the Committee’s consideration of the report of the State party’. A section on positive aspects ‘provides an opportunity to recognize relevant positive measures…that the State party has taken during the reporting period’, including progress in the implementation of previous recommendations. A section on the principal matters of concern and recommendations could include ‘structural obstacles or other factors that impact upon the implementation of the convention’, and could be clustered. Concerns are to be succinct and followed by recommendations. Recommendations ‘should be formulated so as to provide specific actionable guidance and might indicate time frames for the implementation of measures’. A final section would be on the implementation of recommendations, dissemination, and follow-up: Report of the Chairs of the human rights treaty bodies on their twenty-sixth meeting, n 618, Annex II: Framework for the concluding observations. Most treaty bodies have adopted or endorsed the Framework. See Status of the human rights treaty body system: Report of the Secretary General, Supplementary Information, UN Doc A/71/118, 18 July 2016, Annex XVI. On concluding observations, see O’Flaherty, ‘The Concluding Observations of United Nations Human Rights Treaty Bodies’ (2006) 6 HRLR 27; Concluding observations: Note by the secretariat, HRI/MC/2014/2, 14 April 2014; Report of the Chairs of the human rights treaty bodies on their twenty-sixth meeting, n 618, Annex II: Framework for the concluding observations. 633

  See, eg, the comments of Japan on the concluding observations of the CESCR on its third periodic report, UN Doc E/C.12/JPN/CO/3. 634

  For example, the CESCR requests in its concluding observations that the state party inform it, in its next periodic report or at an earlier specified date, about the steps it has taken to implement the recommendations. Where the information requested is not provided and not ascertainable using the ordinary means of the Committee, the state party may be requested to facilitate an on-site visit on the part of members of the Committee. CESCR, Report on the forty-fourth and forty-fifth sessions, n 617, paras 36–7. The Committee has considered the possibility of convening regional follow-up workshops (UN Doc E/2004/22-E/ C.12/2003/14, paras 613–14) and has invited NGOs to monitor implementation of the Committee’s concluding observations (UN Doc E/2001/22, Annex V, para 27). For its part, the Special Rapporteur for follow-up to concluding observations of the Human Rights Committee reports to the Committee with information received by the state party on measures it has taken to implement the recommendations of the Committee. The follow-up report affects the due date for the state party’s next periodic report (Rules of Procedure, Rules 71(5) and 72). Two to four recommendations are selected for follow-up. In identifying follow-up recommendations, the Special Rapporteur must consider whether the recommendation is implementable within a year after its adoption, and whether the recommendation requires immediate attention because of the level of gravity of the referred situation and the emergency of the situation: UN Doc CCPR/C/108/2, para 6. States parties have one year to reply to the selected follow-up recommendations. Following the adoption of the Committee’s concluding observations, national human rights institutions, NGOs, and other organizations can also provide comments to the Committee. The Special Rapporteur then conducts a preliminary analysis of the state party’s report and information submitted by stakeholders, and a follow-up progress report is submitted to the Committee for consideration: UN Doc CCPR/C/108/2, paras 13–15. Once the follow-up progress report is adopted by the Committee, the state party is advised, and additional action and/or information is often requested from the state party: UN Doc CCPR/C/108/2, para 20. The Special Rapporteur sets a deadline for the state party’s reply to the follow-up letter. The

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follow-up process can be discontinued in three circumstances: (i) the state party’s follow-up report is or replies are satisfactory; (ii) the list of issues prior to reporting for the state party is due to be adopted within six months after the adoption of the follow-up progress report; or (iii) the deadline for the next periodic report is within six months after the adoption of the follow-up progress report. The follow-up questions will be automatically included in the list of issues: UN Doc CCPR/C/108/2, para 25. On the follow-up procedure of treaty bodies generally and suggestions for reform, see Bayefsky, n 610, 74–95; Schmidt, ‘Follow-up Procedures to Individual Complaints and Periodic State Reporting Mechanisms’ in Alfredsson et al (eds), n 250, 201; Thornberry, n 470, 48–9; Boerefijn, n 602, 504–5. 635

  Some states leave it to domestic courts; others pass findings on to local bodies; still others implement recommendations as a matter of course. Much depends on the legal and social culture of the state in question. 636

  Certain treaty bodies specify in their rules of procedure that the member of the Committee concerned cannot take part in the consideration of the state party report. See Committee against Torture, Rules of Procedure, Rule 73(1) (‘national of the State party concerned, is employed by that State, or if any other conflict of interest is present’); Committee on Migrant Workers, Rules of Procedure, Rule 32 (‘state party in respect of which she or he was elected to the Committee’); Committee on the Rights of Persons with Disabilities, Rules of Procedure, Rule 43(1) (‘national of the State party concerned’); Committee on Enforced Disappearance, Rules of Procedure, Rule 47(1) (‘national of the State party concerned’; ‘employed by the State party concerned’). Furthermore, para 8 of the ‘Addis Ababa Guidelines on the independence and impartiality of members of the human rights treaty bodies’ provide that ‘A member shall not participate or influence in any way the consideration of a State party report by the treaty body, or by any of its subsidiary bodies, if he or she may be seen by a reasonable observer to have a conflict of interest with respect to that State party.’ Members of the Human Rights Committee used to be allowed to take part in the drawing up of the concluding observations on the report of the state of their nationality in order to check for any obvious errors. This enabled the Committee to make use of the knowledge of the member of the practices of the state party concerned. However, subsequently, the Human Rights Committee indicated that its practice is that ‘a member does not participate in the examination of the reports presented by his or her country by asking questions, making observations or in any other manner.…Other practices which should be observed by members are the following: (a) A member should not participate in any way in discussing or drafting the concluding observations for his or her own country’: UN Doc A/53/40 (vol I), Annex III, paras 4–5. One former member of the Committee on the Elimination of Racial Discrimination has written that ‘There is no formal rule of procedure requiring members [of that body] to resile from proceedings when their own State is in dialogue with the Committee, although for Article 14 communications, a member should not take part in the examination of a communication if they have “any personal interest in the case” or “participated in any capacity in the making of any decision in that case”.…In practice, members are discouraged from participating in discussions regarding their home State; the extent to which the policy of abstention is maintained correlates with the approach of the Chairman and the attitude of individual members’: Thornberry, n 470, 44–5. 637

  A report by OHCHR notes that, as of January 2016, only ‘25 of 197 States parties (13 per cent) were fully compliant with their reporting obligations under the relevant international human rights treaties and protocols…98 States parties had one to three reports overdue, 64 States parties had four to seven reports overdue, and 10 States parties had eight or more reports overdue’: Status of the human rights treaty body system: Report From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

if the Secretary General, Supplementary Information, UN Doc A/71/118, 18 July 2016, Annex II. Some reports were more than 10 years overdue. See further ‘Timely, late and nonreporting by States parties to the human rights treaty bodies: Note by the Secretariat’, HRI/ MC/2016/2, 22 March 2016. Treaty bodies have enacted a number of measures to seek to induce timely submission of reports. The measures include: issuing multiple letters of reminder (HRC, Rules of Procedure, Rule 69(1); UN Doc E/2007/22-E/C.12/2006/1, para 42(b)); issuing ‘strongly worded’ note verbales (UN Doc A/50/40 (vol I), para 38); meeting with representatives of states parties that have outstanding reports (UN Doc A/52/40 (vol I), para 51); publicizing those states parties not complying with their reporting requirements at its press conference (UN Doc A/51/44, para 23); encouraging the state party to request technical assistance from the OHCHR (UN Doc A/42/40, para 42; UN Doc E/2001/22-E/C.12/2000/21, Annex IX); providing technical assistance (UN Doc A/49/44, para 37); authorizing the joint submission of more than one periodic report (UN Doc A/62/40 (vol I), para 73); authorizing in exceptional circumstances the submission of a provisional report covering certain provisions of the Covenant alone (UN Doc A/51/40 (vol I), para 32); and considering the status of relevant human rights in a state party, in the absence of a report, on the basis of information available (UN Doc E/2007/22-E/C.12/2006/1, para 42(b)(iii)). Scheduling of consideration in the absence of a report sometimes results in the submission of a report (eg San Marino (UN Doc E/2007/22-E/C.12/2006/1, para 63)). In light of the experience with overdue reports, Art 36(2) of the Convention on the Rights of Persons with Disabilities provides that ‘If a State Party is significantly overdue in the submission of a report, the Committee may notify the State Party concerned of the need to examine the implementation of the present Convention in that State Party, on the basis of reliable information available to the Committee, if the relevant report is not submitted within three months following the notification. The Committee shall invite the State Party concerned to participate in such examination.’ 638

  The treaty bodies have enacted a number of measures to seek to reduce the backlog in state party reports that have not been considered. For example, the Committee on the Rights of the Child has met in parallel chambers to consider reports in an attempt to clear its backlog. The Committee recommended meeting in Chambers as of January 2005, ‘for an initial period of two years’ (Recommendation of the Committee on the Rights of the Child on its Working Methods, CRC/C/133, 4–5). The General Assembly authorized the request as a temporary measure (GA Res 59/261 (2004)) and the Committee commenced meeting in Chambers to consider reports in January 2006. In 2011, the Committee requested the General Assembly to approve the Committee’s holding one of its three annual sessions in parallel chambers. The General Assembly approved the request (GA Res 67/161 (2004)). 639

  A former member of the Human Rights Committee notes that, ‘Overall, there is little evidence that the UPR is providing an opportunity to undermine the authority of treaty body recommendations. Indeed, perhaps the more salient conclusion is that it allows the concerns of the treaty bodies to be taken up at the inter-governmental level. Moreover, the outcome will doubtless prove helpful to the treaty bodies in subsequent reviews of periodic reports.’ Rodley, ‘UN treaty bodies and the Human Rights Council’ in Keller and Ulfstein (eds), n 610, 330. Along similar lines, it has been observed that ‘Experience of the UPR mechanism shows that it is complementary to, and not in competition with, the procedures of the UN treaty bodies (…). During UPR sessions, Council members frequently quiz states about their follow-up to treaty body recommendations, and the final outcome documents often contain concrete recommendations to this effect. The treaty bodies often raise the commitments made by states parties under the UPR process in their proceedings. Cooperation with treaty bodies, including submission of reports, as well as ratifications of human rights treaties and withdrawal of reservations to treaties often increases before a

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review or as a result of recommendations.’ Connors and Schmidt, n 256, 264. On UPR, see section 3.4.1. 640

  Art 1 OP1-ICCPR; Art 14(1) ICERD; Art 2 OP-ICESCR; Art 2 OP-CEDAW; Art 22 CAT; Art 5 OP3-CRC; Art 77 ICMW; Art 1(1) OP-CRPD; Art 31 CPED. As of February 2017, the individual communications procedure of the ICMW had not entered into force, Art 77 ICMW providing that the procedure will become operative when 10 states parties have declared that they recognize the competence of the Committee to receive and consider communications. Only three states have made such a declaration. Certain treaties require a declaration from a state party accepting the competence of the treaty body in this regard. See Art 14(1) ICERD; Art 22 CAT; Art 77(1) ICMW; Art 31(1) CPED. The competence of other treaty bodies to accept communications derives from a state’s ratification of or accession to an optional protocol to the treaty. This is true of OP1ICCPR; OP-ICESCR; OP-CEDAW; OP-CRPD; OP3-CRC. 641

  See Art 14(1) ICERD; Art 2 OP-ICESCR; Art 2 OP-CEDAW; Art 5 OP3-CRC; Art 1(1) OPCRPD. 642

  It also receives reports from UN bodies concerning measures ‘directly related to the principles and objectives of this Convention applied by the administering Powers’ of those territories, and makes opinions and recommendations to those bodies: Art 15 ICERD. In recent years, however, the Committee has not received copies of any petitions, and information provided to it has not related directly to the purposes and objectives of the Convention. The Committee has consistently remarked on the difficulty in carrying out its mandate without such information. See, eg, UN Doc A/61/18, para 494; UN Doc A/69/18, para 63. 643

  Numerous communications are sent to the Human Rights Committee and the Committee against Torture. By contrast, relatively few are sent to the Committee on the Elimination of Racial Discrimination. On the latter, see van Boven, ‘The Petition System under the International Convention on the Elimination of All Forms of Racial Discrimination: A Sobering Balance-Sheet’ (2000) 4 MPUNYB 271; Thornberry, n 470, 69. 644

  Art 1 OP1-ICCPR. For states parties to both the First and Second Optional Protocols, the individual communication procedure also covers the scope of the Second Optional Protocol. 645

  The Secretariat in this regard is the Petitions and Inquiries Section of the Office of the UN High Commissioner for Human Rights. On the petitions team, see UN Doc A/55/40 (vol II), Annex XII. 646

  Human Rights Committee, The mandate of the Special Rapporteur on New Communications and Interim Measures, CCPR/C/110/3, 6 May 2014, para 4. 647

  ibid, para 5. Thousands of communications have not been taken further on one of these bases. 648

  Further information or clarification may be requested of the author of the communication: Rules of Procedure, Rules 84(2) and 86. 649

  The Working Group, established pursuant to Rules of Procedure, Rule 95(1), is made up of at least five members of the Committee, taking into account geographical distribution. The Working Group may declare a communication admissible when composed of five members and all members are in agreement. Where agreement cannot be reached, the Working Group refers the matter to the full Committee. Referral also takes place in situations in which the Working Group is of the view that the Committee should decide on admissibility. The Working Group may declare a communication inadmissible when composed of at least five members and all members are in agreement. This latter decision is transmitted to the full Committee, ‘which may confirm it without formal discussion’. The full From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Committee may examine the communication upon the request of an individual Committee member. See Rules of Procedure, Rule 93(2) and (3). On the admissibility of communications, see Rules of Procedure, Rule 96; Möse and Opsahl, ‘The Optional Protocol to the International Covenant on Civil and Political Rights’ (1981) 21 Santa Clara Law Review 271; Zwart, The Admissibility of Human Rights Petitions (1994); Gandhi, The Human Rights Committee and the Right of Individual Communication (1998); Joseph, Schultz, and Castan, The International Covenant on Civil and Political Rights (2004), 53–138; Conte, Davidson, and Burchill, Defining Civil and Political Rights (2004), 17–32; Nowak, n 451, 843–65. 650

  Members of the Committee do not take part in the consideration of a communication if they are a national of the state party against which a communication is made, if they have a personal interest in the case, or if they have participated in the events on which the communication is made: Rules of Procedure, Rule 90. See also Rule 91. Recusals are sometimes noted in the decisions or views of the Committee. In the early days of the Committee, a decision as to participation was left to the individual. Some felt uncomfortable and insisted upon recording in the first footnote to any decision that they did not participate in consideration of the communication; others insisted on their right to participate in the consideration of the communication. Decisions are made by consensus. However, members can add their individual or dissenting opinions (Rules of Procedure, Rule 104). The decision to use a consensus rule was prolonged. According to a former member of the Committee, the summary records ‘do not reflect [the discussion’s] intensity, since most of the discussion took place in informal consultations which extended over a number of days’ (Opsahl, ‘The Human Rights Committee’ in Alston (ed), n 483, 383, fn 68). On the consensus rule, see Young, The Law and Process of the UN Human Rights Committee (2002), 48–55; Dimitrijevic, ‘À la recherche du consensus’ (1991–2) Canadian Human Rights Year Book 31. See also Scheinin, ‘How to Untie a Tie in the Human Rights Committee’ in Alfredsson et al (eds), n 250, 129. 651

  The term is used in Art 5(4) OP1-ICCPR to describe the decisions of the Committee. As the Committee itself has noted, ‘These decisions state the Committee’s findings on the violations alleged by the author of a communication and, where a violation has been found, state a remedy for that violation.’ Human Rights Committee, General Comment No 33, CCPR/C/GC/33, 5 November 2008, para 11. Other instruments use other designations. Art 14(7)(b) ICERD refers to ‘suggestions and recommendations’, which the Committee characterizes as ‘Opinons’. Art 7(3) OP-CEDAW indicates that ‘the Committee shall transmit its views on the communication, together with its recommendations, if any’. 652

  All information except that furnished in the context of the follow-up procedure. See Rules of Procedure, Rules 102, 103. The complainant is at liberty to make the communication public (ibid, Rule 102(3)). 653

  ibid, Rule 101. On the mandate of the Special Rapporteur, see UN Doc A/45/40 (vol II), Appendix XI. In numerous cases, the response to the request for follow-up information has been incomplete or not forthcoming. See, eg, the table in UN Doc A/62/40 (vol I), 101–23. The Special Rapporteur has visited a state party to investigate compliance with the Committee’s views (UN Doc A/50/40 (vol I), paras 557–62); and has met with state representatives to engage in dialogue over the measures taken to give effect to the Committee’s Views (UN Doc A/70/40 (vol I), para 41).

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On the follow-up procedure, see Schmidt, n 634, 201–10; and the follow-up reports, eg Human Rights Committee, Follow-up progress report on individual communications, adopted by the Committee at its 112th session (7–31 October 2014), CCPR/C/112/3, 16 November 2014. Some treaties themselves reference follow-up to Views in provisions that reflect the practice of other treaty bodies. For example, Art 7(4) OP-CEDAW provides that ‘The State Party shall give due consideration to the views of the Committee, together with its recommendations, if any, and shall submit to the Committee, within six months, a written response, including information on any action taken in light of the views and recommendations of the Committee’; and Art 7(5) provides that ‘The Committee may invite the State Party to submit further information about any measures the State party has taken in response to its views or recommendations, if any, including as deemed appropriate by the Committee, in the State Party’s subsequent reports under article 18 of the Convention.’ See also Art 9 OP-ICESCR. 654

  Human Rights Committee, General Comment No 33, CCPR/C/GC/33, 5 November 2008, para 13. The Committee reached this conclusion on the basis of ‘the integral role of the Committee under both the Covenant and the Optional Protocol’ (ibid). The Committee noted, at para 14: Under article 2, paragraph 3 of the Covenant, each State party undertakes ‘to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by a person acting in an official capacity.’ This is the basis of the wording consistently used by the Committee in issuing its views in cases where a violation has been found: ‘In accordance with article 2, paragraph 3(a) of the Covenant, the State party is required to provide the author with an effective remedy. By becoming a party to the Optional Protocol the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established. In this respect, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s views.’ The Committee, at para 15, also stated that, ‘The character of the views of the Committee is further determined by the obligation of States parties to act in good faith, both in their participation in the procedures under the Optional Protocol and in relation to the Covenant itself. A duty to cooperate with the Committee arises from an application of the principle of good faith to the observance of all treaty obligations.’ It observed further, at para 11, that, ‘While the function of the Human Rights Committee in considering individual communications is not, as such, that of a judicial body, the views issued by the Committee under the Optional Protocol exhibit some important characteristics of a judicial decision. They are arrived at in a judicial spirit, including the impartiality and independence of Committee members, the considered interpretation of the language of the Covenant, and the determinative character of the decisions.’ For its part, the Russian Federation has indicated that ‘it is well established that the Committee is not a court and that its views are recommendatory. Such views are highly authoritative for the State party’s authorities, and they are taken very seriously’: Information provided by the Russian Federation as follow-up to Gridin v Russian Federation,

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Communication No 770/1997, CCPR/C/69/D/770/1997, 20 July 2000, in Report of the Human Rights Committee, UN Doc A/60/40, vol II, 522. 655

  Observations of the United States of America on the Human Rights Committee’s General Comment 33: The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights December 22, 2008, para 4, available at http://www.state.gov/documents/organization/138852.pdf. The US took issue with each of the three bases for the Committee’s holding and indicated that, in General Comment 33, the Committee ‘purports to arrogate to itself a legal authority that is unsupported by the texts or negotiating records of either the Covenant or its Optional Protocol’. 656

  A draft of General Comment No 33 implied that Views were binding. See Human Rights Committee, Draft General Comment No 33 (Second revised version as of 18 August 2008), CCPR/C/GC/33/CRP.3, para 11 (‘the work of the Committee is to be regarded as determinative of the issues presented’) and para 13 (Views are not purely recommendatory or advisory). However, a number of states disagreed with this position, contending that Views of the Committee are not legally binding. See, eg, Views of the Australian Government on draft General Comment 33: ‘The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights’, para 1 (‘Australia’s view is that the accurate legal position remains that, although the Views of the Committee are not regarded as formally binding in law, they are to be considered in good faith’); Comments of the Norwegian Government, undated (‘Norway does not consider the views of the Committee as legally binding on the receiving State under public international law’). That Views of the Committee are not legally binding was also the position of, among others, Japan (Submissions of Japan, 3 October 2008); Finland (Letter of 22 October 2008); Germany (Note Verbale, 15 October 2008); New Zealand (Response of 12 September 2008); Poland (Poland’s Commentary to the Draft General Comment No 33 of the Human Rights Committee); Romania (Letter of 16 October 2008); Sweden (Comments by the Government of Sweden, 3 October 2008); the UK (Comments of the Government of the United Kingdom of Great Britain and Northern Ireland on draft General Comment 33: ‘The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights’, 17 October 2008). The Human Rights Committee subsequently amended its position in this regard in the final text of the General Comment. 657

  In the Diallo case, the ICJ, referring to Views and General Comments of the Human Rights Committee, indicated that, although it is ‘in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the Committee, it believes that it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty’. It took this view in order ‘to achieve the necessary clarity and the essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled’: Ahmadou Sadio Diallo (Republic of Guinea v DRC) ICJ Rep 2010, p 639, at 664, para 66. A similar view has been expressed by a number of states. For example, Australia has observed that ‘States Parties should give considerable weight to the views and consider them in good faith’: Views of the Australian Government on draft General Comment 33: ‘The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights’, para 8 (emphasis added). See also ibid, at para 4. Norway has indicated that in the travaux préparatoires of its Human Rights Act 1999, ‘the views adopted by the Human Rights Committee—as well as by other UN treaty bodies having the competence to adopt views following individual communications—are considered as a source of interpretation of considerable weight when determining the scope of the rights From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

laid down in the convention’: Comments of the Norwegian Government, undated (emphasis added). Sweden has indicated that it ‘has always regarded the Views adopted by the Human Rights Committee—as well as by the other UN treaty bodies endowed with competence to adopt views on individual complaints such as the Committee against Torture—as authoritative’: Comments by the Government of Sweden, 3 October 2008 (emphasis added). Poland has indicated that ‘the views of the Committee under the Optional Protocol, when a violation is found following a careful analysis of the communication, represent an authoritative determination of a body established under the Covenant.…Respect is due to the views of the Committee by reason of the obligation of States parties to act in good faith, both in their participation in the procedures under the Optional Protocol and in relation to the Covenant itself. A duty to cooperate with the Committee arises from an application of the principle of good faith to the discharge of treaty obligations and means giving serious consideration to the Committee’s views’: Poland’s Commentary to the Draft General Comment No 33 of the Human Rights Committee, undated (emphasis added). See also Ulfstein, ‘Individual Complaints’, in Keller and Ulfstein (eds), n 610, 98, referring to ‘weight’; Kälin and Kunzli, The Law of International Human Rights Protection (2009), 225, noting that ‘Views’ ‘possess considerable authority because they stem from a body entrusted and empowered by states parties to determine whether human rights have been violated in specific cases’. 658

  See Tomuschat, n 576, 220, reasoning that, ‘Generally, there exists a presumption in favour of substantive correctness of such views. No better expertise as to the scope and meaning of any of the human rights treaties can be found in the expert bodies set up to monitor their observance by states.’ See also Ulfstein, n 657, 100; van Alebeek and Nollkaemper, ‘The Legal Status of Decisions by Human Rights Treaty Bodies in National Law’ in Keller and Ulfstein (eds), n 610, 385. Cf Fourth report on subsequent agreements and subsequent practice in relation to the interpretation of treaties, by Georg Nolte, Special Rapporteur, UN Doc A/CN.4/694, 7 March 2016, para 55, indicating that it would go ‘too far’ to accord pronouncements of treaty bodies a general ‘presumption of substantive correctness’, as the weight to be given to a pronouncement depends on ‘specific considerations which include the cogency of their reasoning, the character of the treaty and of the treaty provisions in question, the professional composition of the responsible body, the procedure by which a pronouncement has been arrived at and possibly other factors’ (internal citations omitted). 659

  New Zealand has indicated that states parties have an obligation ‘to carefully consider the views in good faith’: Response of the Government of New Zealand, 12 September 2008, para 10 (emphasis added). The US has expressed the view that it ‘considers that the views of the Committee are entitled to respect and should be considered carefully by States Parties. Such views are not, however, a source of international legal obligation, nor do they have a “determinative,” “authoritative,” or “judicial” character’: Comments of the United States of America on the Human Rights Committee’s ‘Draft General Comment 33: The Obligations of States Parties under the Optional Protocol to the International Covenant Civil and Political Rights’, 17 October 2008 (emphasis added). Other states have used the language of ‘should be taken duly into account’ and ‘given considerable weight’. See van Alebeek and Nollkaemper, n 658, 385. See also Kälin and Kunzli, n 657, 225, noting that ‘the principle of good faith requires that states at least consider and weigh the reasons why they are not ready to implement a finding of a

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violation’. See also Tomuschat, n 576, 220, noting that states have to ‘examine the views addressed to them carefully’. Cf Finland, which has expressed the position that states parties to OP1-ICCPR have an obligation ‘to consider the views of the Committee in good faith’: Letter of 22 October 2008 (emphasis added). 660

  Norway indicated in its Comments to draft General Comment 33, that, ‘By accepting the Committee’s competence to receive, consider and express its views on communications from individuals under the first Optional Protocol, the State party concerned has an obligation to reconsider, in good faith, whether it has violated any of the rights set forth in the Covenant, in so far as this is the result of the Committee’s view. If the State party concerned does not accept the views transmitted to it by the Committee pursuant to article 5, paragraph 4 of the Protocol, Norway considers it to follow from the State party’s obligation to cooperate with the Committee in good faith, that it should present reasons for its conflicting view and engage in a dialogue with the Committee on the contested issue. Norway sees, however, no basis for asserting the existence of any acceptance by States parties that would be conclusive as regards the question of the binding nature of the Committee’s views.’ Comments of the Norwegian Government, undated. See also Tomuschat, n 576, 220, noting that ‘If a state disagrees with the views expressed on a given case, it must present detailed observations specifying its counter-arguments.’ In accord: Ulfstein, n 657, 100; van Alebeek and Nollkaemper, n 658, 385. 661

  Views are cited in judgments of international and national courts. See, eg, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory ICJ Rep 2004, p 136, para 109; Ahmadou Sadio Diallo (Republic of Guinea v DRC) ICJ Rep 2010, p 639, at 664, para 66; R (on the application of Ullah) v Special Adjudicator [2004] UKHL 26, per Lord Bingham. See further ILA Committee on International Human Rights Law and Practice, Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies (2004); van Alebeek and Nollkaemper, n 658. They are also cited by states in their pleadings. See, eg, Affaire Ahmadou Sadio Diallo, Mémoire de la République de Guinée, 23 March 2001, para 3.6. 662

  Rules of Procedure, Rule 92. In practice, up until the communication reaches the Working Group on Communications, the decision as to whether interim measures may be desirable is taken by the Special Rapporteur. Human Rights Committee, The mandate of the Special Rapporteur on New Communications and Interim Measures, CCPR/C/110/3, 6 May 2014, para 7. On interim measures and the Human Rights Committee, see Naldi, ‘Interim Measures in the UN Human Rights Committee’ (2004) 53 ICLQ 445; Harrington, ‘Punting Terrorists, Assassins and Other Undesirables: Canada, the Human Rights Committee and Requests for Interim Measures of Protection’ (2003) 48 McGill Law Journal 55. 663

  On inter-state communications, see Leckie, ‘The Inter-State Complaint Procedure in International Human Rights Law: Hopeful Prospects or Wishful Thinking?’ (1988) 10 HRQ 249; Kamminga, Inter-State Accountability for Violations of Human Rights (1992); Nowak, n 451, 580–614; Henkin, ‘Inter-State Responsibility for Compliance with Human Rights Obligations’ in Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (eds Vohrah et al, 2003), 383. 664

  See Art 41 ICCPR; Art10 OP-ICESCR; Art 11 ICERD; Art 21(1) CAT; Art 76 ICMW.

665

  See, eg, Art 41(1) ICCPR.

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666

  The inter-state communication procedure of the ICCPR requires a declaration on the part of a state party to the ICCPR recognizing the competence of the Committee to receive and consider inter-state communications. The complaining state must also have recognized the inter-state communications procedure in respect of itself: Art 41(1) ICCPR. The same is true of Art 10(1) OP-ICESCR; Art 21(1) CAT; Art 76(1) ICMW. 667

  States parties to the ICERD are not required to make a declaration accepting interstate communications. See Art 11 ICERD. 668

  Arts 11–13 ICERD; Arts 41–43 ICCPR.

669

  The Human Rights Committee has reminded states of the possibility of instituting an inter-state communication (General Comment 31). Members of the CERD have occasionally suggested to states parties that they consider instituting an inter-state complaint (Wolfrum, ‘The Committee on the Elimination of Racial Discrimination’ (1999) 3 MPUNYB 489, 509). Some reports of states parties to the CERD have been considered to contain ‘disguised inter-state disputes’: Buergenthal, ‘Implementing the UN Racial Convention’ (1977) 12 Texas International Law Journal 187, 211–18; Partsch, ‘The Committee on the Elimination of Racial Discrimination’ in Alston (ed), n 483, 361–2; Banton, n 472, 108–12. By contrast, cases have been brought before the ICJ. See, eg, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) ICJ Rep 2011, p 70. 670

  For the general comments and general recommendations up to 2008, see Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.9 (vol I) and (vol II). General Comments adopted since 2008 are available on the website of the OHCHR. On general comments and general recommendations, see Boerefijn, n 579, 285–300; Opsahl, ‘The General Comments of the Human Rights Committee’ in Des Menschen Recht zwischen Freiheit und Verantwortung: Festschrift für Karl Josef Partsch zum 75 Geburtstag (eds Jekewitz et al, 1989), 273; Alston, ‘The Historical Origins of the Concept of “General Comments” in Human Rights Law’ in The International Legal System in Quest of Equity and Universality: Liber Amicorum Georges Abi-Saab (eds Boisson de Chazournes and GowllandDebbas, 2001), 763; Nowak, n 451, 573–76; Buergenthal, ‘The UN Human Rights Committee’ (2001) 5 MPUNYB 341, 386–90; Craven, n 460, 89–92; Blake, ‘Normative Instruments in International Human Rights Law: Locating the General Comment’, Center for Human Rights and Global Justice Working Paper Number 17, 2008; Keller and Grover, ‘General Comments of the Human Rights Committee and their Legitimacy’ in Keller and Ulfstein (eds), n 610, 116. 671

  Alston, n 670, 764.

672

  In GA Res 68/268 (2014), the General Assembly encouraged the treaty bodies to ‘develop an aligned consultation process for the elaboration of general comments that provides for consultation with States parties in particular and bears in mind the views of other stakeholders during the elaboration of new general comments’. At the 2015 meeting of the chairs of the treaty bodies, the chairs ‘endorsed a common methodology for consultation’ and recommended it to treaty bodies in their preparation of General Comments: Report of the Chairs of the human rights treaty bodies on their twenty-seventh meeting, UN Doc A/70/302, 7 August 2015, para 25. Among the elements of the elaboration of General Comments are that: ‘[a]dvance versions of draft general comments would be shared with other treaty bodies and relevant special procedures mandate-holders for input, comments or feedback’; ‘[a]dvance versions of draft general comments would be posted on the OHCHR website to make them accessible to States parties and a broad range of stakeholders’; ‘[i]nput, comments or feedback received from States parties, special procedures, national human rights institutions, civil society organizations and other

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stakeholders would be given due consideration by the treaty body, as appropriate’; and ‘[t]he treaty body would lead the consultation process and decide on the contents and adoption of the general comment’ (ibid, para 91). See also ‘Consultation process for the elaboration of treaty body general comments: Note by the Secretariat’, HRI/MC/2015/4, 15 May 2015. Prior to the treaty body-strengthening process, different treaty bodies took different approaches to the drafting of General Comments. For example, during the preparation of General Comments of the Human Rights Committee, consultations took place with other treaty bodies, UN specialized agencies, NGOs, and academics. A draft of the General Comment was published online, making it available to stakeholders. Comments were taken on board in the preparation of the revised version. See, eg, the changes made to Human Rights Committee, General Comment No 33, in light of the responses of states. See further Keller and Grover, n 670, 168–76. For its part, the Committee on the Elimination of Discrimination against Women formulated a structured approach to the drafting of General Recommendations, which involved an open dialogue between the Committee, NGOs, and other interested actors on the topic of the General Recommendation; the preparation of a draft by a Committee member, followed by discussion by the Committee; and adoption of the draft by the Committee. Ways and means of expediting the work of the Committee on the Elimination of Discrimination against Women, CEDAW/C/2009/II/4, 4 June 2009, Annex III, paras 33–5. By contrast, one former member of the Committee on the Elimination of Racial Discrimination has noted that ‘it has not been CERD practice to call for public comments on draft recommendations’: Thornberry, n 470, 54. 673

  Art 40(4) ICCPR provides that ‘The Committee shall study the reports submitted by the states parties to the present Covenant. It shall transmit its reports, and such general comments as it may consider appropriate, to the states parties.’ At the third meeting of the Human Rights Committee in 1978, there was a difference of opinion between members from Western Europe, who suggested that ‘general comments could be country-specific, and violations focused’, and members from Eastern Europe, ‘who rejected both specificity and appraisal’: Alston, n 670, 775. The view of the Eastern European members largely prevailed, and at its eleventh session in 1980, agreement was reached on the principles that would guide the Committee in its formulation of General Comments and on the subjects to be addressed in those Comments. By contrast, concluding observations are country-specific and contain subjects of concern. See also section 5.2.3.1, ‘State party reports’. The Committee indicated that it would be guided by the following principles: They should be addressed to the States parties [ie all States parties] in conformity with article 40, paragraph 4 of the Covenant; They should promote cooperation between States parties in the implementation of the Covenant; They should summarize experience the Committee has gained in considering States reports; They should draw the attention of States parties to matters relating to the improvement of the reporting procedure and the implementation of the Covenant; and They should stimulate activities of States parties and international organizations in the promotion and protection of human rights.

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The Committee also indicated that the general comments could be related inter alia to the following subjects: The implementation of the obligation to submit reports under article 40 of the Covenant; The implementation of the obligation to guarantee the rights set forth in the Covenant; Questions related to the application and the content of individual articles of the Covenant; Suggestions concerning cooperation between States parties in applying and developing the provisions of the Covenant. (Human Rights Committee, Eleventh session, Summary Record of the 260th Meeting, CCPR/C/SR.260, 5 November 1980) Over time, the nature and content of General Comments have changed, moving from brief comments on state reporting obligations to detailed analyses of particular provisions of the Covenant. See further Keller and Grover, n 670, 121–37. By contrast, ECOSOC invited the CESCR to consider again its compilation of recommendations relating to its future work, paying ‘particular regard to practices followed by other treaty bodies, including the preparation of general comments by the Human Rights Committee’, an invitation that was endorsed by the General Assembly: ECOSOC Res 1987/5; GA Res 42/102 (1987). On the basis of the invitation, the Committee decided to prepare General Comments ‘based on the various articles and provisions of the Covenant with a view to assisting the States parties in fulfilling their reporting obligations’: CESCR, Report on the second session, UN Doc E/1988/14, para 367. In so far as the CERD and CEDAW Committee were concerned, the Office of Legal Affairs advised that the Committees had ‘flexibility to make suggestions on the basis of reports received from States parties without qualification as to whether they should be addressed to general situations or specific situations and to make recommendations of a general nature addressed to all States parties’: Report of the Committee on the Elimination of Discrimination against Women, UN Doc A/41/45 (1986), para 359. For its part, the CAT does not explicitly authorize the Committee against Torture to make general comments or recommendations that are addressed to states parties generally. Whereas Art 40(4) ICCPR, eg, provides that ‘[t]he Committee shall study the reports submitted by the States Parties to the present Covenant. It shall transmit its reports, and such general comments as it may consider appropriate, to the States Parties’, by contrast, Art 19(3) CAT provides that ‘[e]ach report shall be considered by the Committee which may make such general comments on the report as it may consider appropriate and shall forward these to the State Party concerned’ (emphasis added). It has been suggested that this omission was an oversight (Burgers and Danelius, n 498, 159) and that the Committee has an implied power to issue such comments (Byrnes, n 579, 530). The Committee against Torture has issued General Comments. In 1997, the Committee adopted its first General Comment, on the implementation of Article 3 in the context of Article 22 of the Convention, as ‘the Committee felt that some guidance should be given to the States parties and to the authors of communications to enable them to apply correctly the provisions of article 3 in the context of the procedure set forth by article 22 of the Convention’: Report of the Committee against Torture, UN Doc A/53/44, para 258. 674

  CESCR, Report on the Thirty-Sixth and Thirty-Seventh Sessions, UN Doc E/2007/22-E/ C.12/2006/1, para 57. The Human Rights Committee has taken a similar position. See HRI/ GEN/1/Rev.9 (vol I), 173. Along similar lines, the Committee on the Rights of the Child began drawing up General Comments in 1998, ‘[i]n view of the experience gathered since

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1993 through the examination of reports submitted by States parties’ and ‘with a view to assisting the States parties in fulfilling their reporting obligations’: CRC/C/73, para 149. See further Alston, n 670, 764. 675

  See, eg, Human Rights Committee, General Comment No 35: Article 9 (Liberty and security of person), CCPR/C/GC/35, 16 December 2014; Human Rights Committee, General Comment No 30: Reporting obligations of states parties under Article 40 of the Covenant, CCPR/C/21/Rev.2/Add.12, 18 September 2002; Human Rights Committee, General Comment No 26: Continuity of obligations, CCPR/C/21/Rev.1/Add.8/Rev.1, 8 December 1997. General Comments that were adopted early in the life of the relevant treaty bodies tended to be brief and addressed matters relating to state party reporting. Over time, things have changed, with General Comments often proving detailed and relating to substantive matters. 676

  New Zealand has indicated that it ‘views the Committee’s General Comments as credible and authoritative interpretations of States’ obligations, which contribute to the process of constructive dialogue with States Parties’: Response of the Government of New Zealand [to Human Rights Committee, Draft General Comment No 33], 12 September 2008, para 10 (emphasis added). Australia has indicated that it ‘regards the views of the Committee on the interpretation of the rights under the Covenant as authoritative, however, it does not consider that they are determinative of the nature and scope of those obligations’: Views of the Australian Government on Draft General Comment No 35 on Article 9 of the International Covenant on Civil and Political Rights—Right to Liberty and Security of Person and Freedom from Arbitrary Arrest and Detention, May 2014, para 6. See also Chinkin and Freeman, ‘Introduction’ in Freeman, Chinkin, and Rudolf (eds), n 480, 24. Cf the position of the US: ‘[T]he views of the [Human Rights] Committee should be carefully considered by the States Parties. Nevertheless, they are neither primary nor authoritative sources of law and the impression should not be given that they are being cited as such.’ Observations of the United States of America on the Human Rights Committee’s Draft General Comment 35: Article 9, 10 June 2014 (emphasis added). See further Keller and Grover, n 670, 132–3. 677

  See Blake, n 670, 30.

678

  In the Diallo case, the ICJ, referring to Views and General Comments of the Human Rights Committee, indicated that, although it is ‘in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the Committee, it believes that it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty’. It took this view in order ‘to achieve the necessary clarity and the essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled’: Ahmadou Sadio Diallo (Republic of Guinea v DRC) [2010] ICJ Rep 639, 664, para 66. The Norwegian Foreign Affairs Ministry has indicated that the treaty bodies ‘have been mandated to produce so-called general comments on the interpretation of particular provisions of the conventions. These comments are not legally binding but are of great significance when interpreting the conventions, and may contribute to the development of customary international law.’ Norwegian Ministry of Foreign Affairs, Report No 21 to the Storting (1999–2000): Focus on Human Dignity—A Plan of Action for Human Rights, ch 5,

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quoted in ILA Committee on International Human Rights Law and Practice, Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies (2004), fn 19. The UK, in its Observations on General Comment No 24 of the Human Rights Committee, observed, ‘The United Kingdom is of course aware that the General Comments adopted by the Committee are not legally binding. They nevertheless command great respect, given the eminence of the Committee and the status of the International Covenant on Civil and Political Rights.’ Observations by the United Kingdom on General Comment No 24, in Report of the Human Rights Committee, UN Doc A/50/40, 3 October 1995, 135, para 1 (emphasis added). 679

  Keller and Grover, n 670, 129, citing an interview with Martin Scheinin.

Cf Fourth report on subsequent agreements and subsequent practice in relation to the interpretation of treaties, by Georg Nolte, Special Rapporteur, UN Doc A/CN.4/694, 7 March 2016, para 55, indicating that it would go ‘too far’ to accord pronouncements of treaty bodies a general ‘presumption of substantive correctness’, as the weight to be given to a pronouncement depends on ‘specific considerations which include the cogency of their reasoning, the character of the treaty and of the treaty provisions in question, the professional composition of the responsible body, the procedure by which a pronouncement has been arrived at and possibly other factors’ (internal citations omitted). 680

  The US has indicated that it ‘believes the views of the [Human Rights] Committee should be carefully considered by the States Parties. Nevertheless, they are neither primary nor authoritative sources of law and the impression should not be given that they are being cited as such.’ Observations of the United States of America on the Human Rights Committee’s Draft General Comment 35: Article 9, 10 June 2014 (emphasis added). 681

  States that have disagreed with certain aspects of certain General Comments have tended to provide substantive legal reasons for their disagreement. See, eg, the response of the US to General Comment No 33 of the Human Rights Committee, at n 655; the responses of France (UN Doc A/51/40, 104), the UK ((1996) 16 HRLJ 422), and the US ((1996) 16 HRLJ 424) to General Comment No 24 of the Human Rights Committee; and see further section 5.2.3.6, ‘Reservations to human rights treaties’. States might also disagree with parts of a General Comment that contains a policy or recommendatory element. 682

  General Comments are cited in judgments of international and national courts. See, eg, Ahmadou Sadio Diallo (Republic of Guinea v DRC) ICJ Rep 2010, p 639, at 664, para 66; Judgment No 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development ICJ Rep 2012, p 10, para 39; Government of the Republic of South Africa et al v Grootboom et al, Case CCT 11/00, 4 October 2000 (Constitutional Court of South Africa), paras 29–31, 45. Some are cited with approval; others with disapproval; still others are cited in passing. On other occasions, they are not cited at all. General Comments are also cited by states in their pleadings. See, eg, Request by the United Nations General Assembly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, Written Observations submitted by the Government of the Solomon Islands to the International Court of Justice, 20 June 1995, paras 4.34–4.35. See generally ILA Committee on International Human Rights Law and Practice, Final Report on the Impact of the Findings of the United Nations Human Rights Treaty Bodies (2004); Blake, n 670; van Alebeek and Nollkaemper, n 658. 683

  Art 11 OP-ICESCR; Art 8 OP-CEDAW; Art 20 CAT; Art 13 OP3-CRC; Art 6 OP-CRPD; Art 33 CPED.

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684

  Art 8(1) OP-CEDAW. Similar language is contained in Art 6(1) OP-CRPD; Art 11(2) OPICESCR; Art 13(1) OP3-CRC. Art 20(1) CAT provides for an inquiry procedure ‘[i]f the Committee receives reliable information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State Party’. The CAT provision was inspired by the ECOSOC Res 1503 procedure: Burgers and Danelius, n 498, 160. Art 33(1) CPED refers to the Committee receiving ‘reliable information indicating that a State Party is seriously violating the provisions of this Convention’. 685

  Art 20(2) and (3) CAT; Art 8(2) OP-CEDAW; Art 6(2) OP-CRPD; Art 11(3) OP-ICESCR; Art 13(2) OP3-CRC. 686

  Art 20(4) CAT; Art 8(3) OP-CEDAW; Art11(5) OP-ICESCR; Art13(4) OP3-CRC. See also Art 33(5) CPED, referring to ‘observations and recommendations’; Art 6(3) OP-CRPD, referring to ‘comments and recommendations’. 687

  Art 8(4) OP-CEDAW; Art 6(4) OP-CRPD; Art 11(6) OP-ICESCR; Art 13(5) OP3-CRC. Art 36(2) CPED provides that ‘Before an observation on a State Party is published in the annual report, the State Party concerned shall be informed in advance and shall be given reasonable time to answer. This State Party may request the publication of its comments or observations in the report.’ 688

  Art 20(5) CAT; Art 11(8) OP-ICESCR; Art 13(6) OP3-CRC.

For summaries, see CAT: UN Doc A/48/44/Add.1 (Turkey); UN Doc A/51/44, paras 180–222 (Egypt); UN Doc A/55/44, paras 219–24 and UN Doc A/56/44, paras 144–93 (Peru); UN Doc A/57/44, paras 123–95 (Sri Lanka); UN Doc A/59/44, paras 156–240 (Serbia and Montenegro); UN Doc A/69/44, Annex XIII (Lebanon). The Committee has published summaries over the objections of the state party concerned. See UN Doc A/48/44/Add.1, paras 20–1; UN Doc A/51/44, paras 198–9. It has also published full reports with the consent of the state party concerned. See CAT/C/75, 26 May 2003 (Mexico); CAT/C/39/2, 3 March 2009 (Brazil); UN Doc A/67/44, Annex XIII, 5 October 2012 (Nepal). See generally Nowak and McArthur, n 496, 659–98. 689

  This is true of OP-CEDAW and OP-CRPD.

The CEDAW Committee has held that ‘no provision in the Optional Protocol precludes the Committee from publishing its full report of an inquiry, setting out its findings, comments and recommendations’: Decision 59/VII, in UN Doc A/70/38, 44. The Committee has thus published its reports as well as the observations of the state party concerned. See CEDAW/ C/2005/OP.8/MEXICO, 27 January 2005 (Mexico); CEDAW/C/OP.8/CAN/1, 30 March 2015 (Canada). The Committee has also published a summary of its inquiry concerning the Philippines: CDEEAW/C/OP.8/PHL/1, 22 April 2015. The Committee on the Rights of Persons with Disabilities has published its report concerning the UK: CRPD/C/15/R.2/Rev.1, 6 October 2016. 690

  The chairs of the treaty bodies have noted that ‘while all treaty bodies should maintain absolute confidentiality throughout the proceedings, public disclosure of the treaty body’s findings, in some form and at the end of the inquiry proceedings (after the dialogue with States), was essential to ensure a victim-oriented approach’: Report of the Chairs of the human rights treaty bodies on their twenty-eighth meeting, UN Doc A/71/270, 2 August 2016, para 39. 691

  See, eg, Art 9(1) OP-CEDAW; Art 7(1) and (2) OP-CRPD; Art 12(1) and (2) OP-ICESCR; Art 14 OP3-CRC.

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692

  Art 28(1) CAT; Art 10 OP-CEDAW; Art 8 OP-CRPD; Art 13(7) Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (OPCRC). 693

  Art 11(1) OP-ICESCR.

694

  Art 11(8) OP-ICESCR.

695

  See Art 33 CPED.

696

  See, eg, The Netherlands’ objection to the two reservations made by the US, when ratifying the ICCPR, to provisions therein barring the execution of juvenile offenders and prohibiting torture and ill-treatment: 1993, 1734 UNTS 414. 697

  Whether the US Constitution or Sharia law. For papers examining this trend across a range of multilateral treaties (regional as well as UN treaties), see Redgwell, Schmidt, Marks, Chinkin, Connors, Kuper, Hand, and McBride in Human Rights as General Norms and a State’s Right to Opt Out (ed Gardiner, 1997). 698

  Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) ICJ Rep 1951, p 15. 699

  CCPR/C/21/Rev.1/Add.6. The General Comment made clear that, as the Covenant contains no specific clause on reservations, the relevant test was that of Art 19(3) VCLT, the ‘object and purpose’ test. 700

  See the UK Observations on General Comment 24, GAOR, 50th Session, Supp no 40 (UN Doc A/50/40), Annex VI, Section B; the US Observations on General Comment 24, GAOR, 50th Session, Supp no 40 (UN Doc A/50/40), Annex VI, Section A; and France Observations on General Comment 24, GAOR, 51st Session, Supp no 40 (UN Doc A/51/40), Annex VI. 701

  This point was put more strongly in the UK memorandum than in that of the US. The latter implicitly acknowledged that the criteria for the permissibility of reservations by the Committee were essentially those of the ICJ and the VCLT, and it was procedures for such assessment that were, under General Comment 24, somewhat different. 702

  As indicated by Higgins in Gardiner (ed), n 698, ‘Introduction’, xix: Although the Genocide Convention was indeed a human rights treaty, the Court was in 1951 concerned with the broad distinction between ‘contract treaties’ and ‘normative treaties’. And the issue it was addressing was whether the contract/ normative distinction was relevant to this answer. The only questions put to the Court related to the legal consequences, between ratifying states, of reservations made that had been objected to (and sometimes objected to by some states and not by others). The Court favoured a ‘flexible’ answer, rather than the unanimity rule, in respect of the precise questions asked of it; and it found no difference in that regard between contract and normative treaties. But that cannot be said to determine the very different question: in a human rights treaty, in respect of which a monitoring body has been given certain functions [examining reports and dealing with cases, for which it needed to know the status of certain reservations], is it implicit in its functions and in the operation of the principles of Article 19(3) of the Vienna Convention, that the treaty body, rather than Contracting States, should decide whether a reservation is or is not compatible with the objects and purpose of the treaty?…

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703

  See, in particular, para 18 of General Comment 24:It necessarily falls to the Committee to determine whether a specific reservation is compatible with the object and purpose of the Covenant. This is in part because, as indicated above, it is an inappropriate task for States parties in relation to human rights treaties, and in part because it is a task that the Committee cannot avoid in the performance of its functions. In order to know the scope of its duty to examine a State’s compliance under article 40 or a communication under the first Optional Protocol, the Committee has necessarily to take a view on the compatibility of a reservation with the object and purpose of the Covenant and with general international law. Because of the special character of a human rights treaty, the compatibility of a reservation with the object and purpose of the Covenant must be established objectively, by reference to legal principles, and the Committee is particularly well placed to perform this task. The normal consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation. See Kennedy v Trinidad and Tobago, Comm No 845/1999 (HRC, 2 November 1999) where the HRC commented on the reservation in the context of an individual communication, at p 10, para 6.7. 704

  Inter-American Court of Human Rights (IACtHR), Series A, Judgments and Opinions, No 3, Advisory Opinion OC-3/83, 8 September 1983. 705

  See, eg, Belilos v Switzerland [1988] ECHR 4 (29 April 1988); Loizidou v Turkey [1995] ECHR 10 (23 March 1995). For the Council of Europe’s work in this field, see Ad Hoc Committee of Legal Advisers on Public International Law (CAHDI), Strasbourg, 29 July 1998; Group of Specialists on Reservations to International Treaties, Strasbourg, First Meeting, 29 July 1998, Second Meeting 29 July 1999; Gerard Cohen-Jonathan comments that France’s and the UK’s strong reactions to General Comment 24 were surprising in the light of the fact that they had long since been resigned to accepting comparable practice in Strasbourg: Les Réserves dans les Traités Relatifs aux droits de l’homme (1996) 4 RG 916. No doubt the status of the Human Rights Committee as a monitoring organ under a treaty, rather than a fully-fledged court, partly accounted for this—though the functional problems that the Committee faced in its work under the Covenant were the same as those faced by the ECtHR and the IACtHR. 706

  UN Doc A/CN.4/477a and Add.1.

707

  UN Doc A/52/10, para 157.

708

  These early conclusions reached by the Special Rapporteur, as adopted by the ILC, were perceived by human rights writers and activists as reflecting a classical state sovereignty approach to the problems, in the sense that the traditional legal sources were reiterated notwithstanding the contention that these had proved not viable in human rights treaties where inter-state obligations were not being exchanged. The European Convention case law was there treated as an exception to the law of treaties, whereas to others it was the only relevant international practice. 709

  See, inter alia, the useful and informative publication prepared at the Fourth InterCommittee meeting of the human rights treaty bodies, Geneva, 20–22 June 2005. This Report stated that ‘The current approach to reservations to treaties is based on the treaty provisions, the provisions of the Vienna Convention, which is widely regarded as representing generally binding customary law, the evolving practice of treaty bodies, as well as the evolving policy of the [UN] Office of Legal Affairs. It is also informed by the practice of the regional human rights courts, in particular the European Court of Human Rights, and the work of the International Law Commission (ILC), in particular, the work of

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its Special Rapporteur on reservations to treaties, Mr Alain Pellet’: UN Doc HRI/MC/2005/5, p 3. 710

  Report prepared by Mr Alain Pellet, Special Rapporteur, ILC(LIX)/RT/CRP.1, 26 July 2007. 711

  In concluding that it had no jurisdiction to proceed to the merits, the Court did observe that ‘the fact that a reservation has not been objected to by at least two kinds of States parties to the Convention automatically implies that it is compatible with the object and purpose of the Convention’: ICJ Rep 2006, p 35, para 7. But that was a provision not of the ICJ’s 1951 Advisory Opinion but of Art 20(2) ICERD. The Court focused above all on the object and purpose of the reservations concerned, which in turn led into issues relating to peremptory norms, the relationship between any violation of such norms, and the conferral of jurisdiction on the Court, substance, and procedure. For a detailed examination of the Court’s handling of this case, in the light of the controversy over General Comment 24 of the Human Rights Committee and certain responses thereto, see the Joint Separate Opinion of Judges Higgins, Kooijmans, Elaraby, Owada, and Simma: ICJ Rep 2006, at p 63, paras 15–23. 712

  Draft Guideline 3.1.12, UN Doc A/CN.4/558/Add.1. He then laid out important guidelines as to how to assess the compatibility of a reservation with the object and purpose of such a treaty. 713

  After addressing the issues of reservations reflecting a customary rule, reservations concerning rights from which no derogation is permissible (which General Comment 24 had not found ipso facto impermissible), and reservations relating to internal law, the Report turned to treaty-monitoring bodies (UN Doc A/66/10/Add.1, 3.2.1–3.2.3, pp 400–2). It there affirmed that such bodies did have the competence to assess the permissibility of reservations. The Preamble to the Annex spoke of ‘the need to achieve a satisfactory balance between the objectives of safeguarding the integrity of multilateral treaties, and securing the widest possible participation therein’. It also stated that it was ‘concerned at the number of reservations that appear to be incompatible with the limits imposed by the law of treaties, in particular Article 19 of the Vienna Convention on the Law of Treaties’. 714

  For example, the Committee on the Elimination of Racial Discrimination has held debates on, inter alia, discrimination against Roma, CERD/C/SR.1422 (18 September 2000); Discrimination based on descent, CERD/C/SR.1531 (16 August 2002); Double Discrimination on the Grounds of Race and Religion, UN Doc A/61/18, para 490. 715

  For example, the Committee on the Rights of the Child has engaged in discussions on a number of topics, including children in armed conflict; violence against children; the rights of indigenous children; and the right of the child to be heard. For the reports and recommendations emanating from the days of discussion, see the relevant sections of the annual reports of the Committee. A number of activities have taken place as follow-up to the days of general discussion, including the creation of informal Working Groups (eg CRC/C/ 66, para 327); the drafting of general comments; and recommendations to the General Assembly, pursuant to Art 45(c) of the Convention, to request the Secretary-General to undertake thematic studies (Children in Armed Conflicts (CRC/C/16, 4)). 716

  These include: ‘The world food crisis’ (UN Doc E/C.12/2008/1); ‘Statement of the Committee to the Commission on Sustainable Development acting as the Preparatory Committee for the World Summit for Sustainable Development (Bali, Indonesia, 27 May–7 June 2002)’ (UN Doc E/2003/22-E/C.12/2002/13, annex VI); ‘Economic, social and cultural rights in the context of the World Summit for Social Development’ (UN Doc E/1995/22-E/C.

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12/1994/20 and Corr.1, annex VI); ‘Statement to the World Conference on Human Rights on behalf of the Committee’ (UN Doc E/1993/22-E/C.12/1992/2, annex III). 717

  For example, members of the Committee on the Rights of the Child have undertaken informal visits to states in order to increase awareness of the work of the Committee and for the Committee to gain a greater sense of the realities on the ground for children. See, eg, CRC/C/20, 5; CRC/C/10, paras 34–7. Between 1993 and 1995 alone, the Committee held informal meetings in Thailand, Kenya, Ghana, Mali, Zimbabwe, South Africa, Ivory Coast, India, Pakistan, Bangladesh, Nepal, and Sri Lanka. Sardenberg, ‘Committee on the Rights of the Child: Basic Processes’ (1996) 6 Transnational Law & Contemporary Problems 263, 284. 718

  For example, members of CERD have undertaken missions and offered technical assistance to states parties. See, eg, UN Doc A/49/18, paras 22, 50; UN Doc A/51/18, para 622. 719

  See UN Doc A/51/18, paras 609–13. The Committee indicated that ‘[e]arly-warning measures are to be directed at preventing existing problems from escalating into conflicts and can also include confidence-building measures to identify and support whatever strengthens and reinforces racial tolerance, particularly to prevent a resumption of conflict where it has previously occurred’ (para 611) and ‘[u]rgent procedures are to respond to problems requiring immediate attention to prevent or limit the scale or number of serious violations of the Convention’ (para 612). Subsequently, a Working Group on early warning and urgent action procedures was established (UN Doc A/59/18, paras 483–4). The Working Group may, among other things, make recommendations to the Committee under its early warning and urgent action procedure. Under its revised guidelines adopted in 2007, the Committee concluded that it must act under the procedure ‘when it deems it necessary to address serious violations of the Convention in an urgent manner’. The Committee, in acting under the procedure, must assess the significance of the situation in light of its gravity and scale, as well as ‘the escalation of violence or irreparable harm that may be cause to victims of discrimination’: UN Doc A/62/18, Annexes, Chapter 3, para 12. A number of measures can be taken by the Committee under the procedure, including requesting from the state party concerned urgent information on the situation; requesting the UN Secretariat to collect information from the field presence of UN agencies, national human rights institutions, and NGOs; recommending action; offering to send to the state party concerned members of the Committee, ‘in order to facilitate the implementation of international standards or the technical assistance to establish a human rights institutional infrastructure’ (para 14). The procedure has been used on several occasions, with the Committee entering into dialogue with states parties under this procedure, and setting out its concerns and recommendations. See, eg, UN Doc A/61/18, para 19; UN Doc A/69/18, paras 17–24. On the origins of the early warning system, see ‘Prevention of Racial Discrimination, including Early Warning and Urgent Procedures: working paper adopted by the Committee on the Elimination of Racial Discrimination’, UN Doc A/48/18, Annex III (1993); van Boven, ‘Prevention, Early-Warning and Urgent Procedures; A New Approach by the Committee on the Elimination of Racial Discrimination’ in Reflections on International Law from the Low Countries (eds Denters and Schrijver, 1998), 165; Wolfrum, n 669, 513–16. 720

  Including, but not limited to the special procedures of the HRC, the OHCHR, national human rights institutions, and NGOs. On the relationship between treaty bodies and special procedures, see Rodley, ‘United Nations Human Rights Treaty Bodies and Special

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Procedures of the Commission of Human Rights – Complementarity or Competition?’ (2003) 25 HRQ 882. 721

  See, eg, UN Doc A/51/18, para 623; UN Doc A/61/18, paras 8–10.

722

  See, eg, UN Doc E/2005/22-E/C.12/2004/9, para 610 (FAO); UN Doc E/C.12/1999/11-E/ 2000/22, paras 463–5 (UNDP). 723

  See, eg, the United Nations Special Rapporteur on Torture (UN Doc A/44/46, paras 15– 21); the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (UN Doc A/45/44, paras 30–2); the Board of Trustees of the United Nations Voluntary Fund for Victims of Torture (UN Doc A/46/46, para 14). Given the potential for overlap between the work of the Committee and the Special Rapporteur, it was the policy of at least one Special Rapporteur not to seek a visit to a country being visited by the Committee pursuant to Art 20(1) of the Convention. A later visit was viewed as a ‘de facto follow-up to the Committee’s visit’: Rodley, n 720, 894. 724

  See, eg, CRC/C/97, paras 576–87; CRC/C/108, paras 539–54.

725

  CRC/C/121, para 626.

726

  See, eg, UN Doc A/59/48, paras 12–8; UN Doc A/60/48, paras 20–3.

727

  Art 38 CRPD.

728

  Art 1 OP-CAT. A state party to the Protocol may make a declaration postponing certain of their obligations under the Protocol for a period of up to three years. The Committee against Torture may extend postponement for a further two years after ‘due representations’ of the state party and after ‘consultations’ with the Subcommittee. See Art 24 OP-CAT. 729

  Arts 11(1)(a) and 4 OP-CAT. See Guidelines of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in relation to visits to States parties under article 11(a) of the Optional Protocol, CAT/OP/5, 4 February 2015. Pursuant to Art 14, the Subcommittee is to have unrestricted access to certain information and all places of detention, subject to objection being made on very particular urgent and compelling grounds. The Subcommittee is also at liberty to choose the places it wishes to visit and the persons it wishes to interview. 730

  Art 11(1)(b) and (c) OP-CAT.

The Subcommittee has requested information from states parties in relation to the establishment of the national preventive mechanisms: CAT/C/40/2, para 24. It has also liaised with national bodies in the area and engaged with these mechanisms: CAT/C/40/2, paras 25–6. Guidelines for the establishment of these mechanisms were laid down by the Subcommittee in CAT/C/40/2, para 28; Guidelines on national preventive mechanisms, CAT/ OP/12/5, 9 December 2010. 731

  The Subcommittee liaised with the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in relation to the Subcommittee’s visit to Sweden: CAT/C/40/2, para 21. The Subcommittee has also ‘maintained close contact’ with the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment: CAT/C/40/2, para 35. Meetings have also been held with representatives of the Inter-American Commission on Human Rights (IACommHR), ICRC, OSCE, and various NGOs: CAT/C/40/2, paras 36–45.

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732

  Art 13(1) OP-CAT. Those states parties drawn by lot were the Maldives, Mauritius, and Sweden. The Maldives and Mauritius were visited in 2007, and Sweden in 2008. For a list of places visited within the state party, see CAT/C/40/2, Annex III. For an ‘Outline of a Regular Subcommittee Visit’, see CAT/C/40/2, Annex V. States parties to be visited in the future have been identified ‘by a reasoned process’. Factors taken into consideration were ‘date of ratification/development of national preventive mechanisms, geographic distribution, size and complexity of the State, regional preventive monitoring and urgent issues reported’: CAT/C/40/2, para 14. The Committee indicated that it seeks to visit the 34 states parties on average once every four or five years, leading to some eight visits per year: CAT/C/40/2, para 15. However, limited funding may prevent this: CAT/C/40/2, para 50. 733

  Art 13(3) OP-CAT. Initial visits were conducted by a larger number of members of the Subcommittee than would ordinarily be the case, in order that all members would take part in a visit: CAT/C/40/2. para 21. 734

  Art 13(4) OP-CAT.

735

  Art 16(1) OP-CAT. By Art 16(2), if the state party so requests, the Subcommittee will publish its report in full. The Committee has expressed the hope that this will be the case: CAT/C/40/2, para 23. A number of reports have been published in full; others have remained confidential. If the state party itself makes part of the report public, the Subcommittee is entitled to publish the report in part or in its entirety. By Art 16(4), if the state party refuses to cooperate, or refuses to take steps to address the recommendations of the Subcommittee, the Committee against Torture may make a public statement or the Subcommittee may publish its report. 736

  Art 34 CPED.

737

  Art 30(1) CPED. See Guidance for the submission of a request for urgent action to the Committee, CED/C/4, 29 April 2014. 738

  Art 30(2) CPED. On the procedure followed, see Rules of Procedure, Rules 58–64; UN Doc A/71/56, Chapter X. 739

  Art 30(4) CPED. The Committee publishes a list of names of ‘disappeared persons with regard to whom the Committee has requested the State party concerned to take all the necessary measures, including interim measures, to locate and protect them, in application of article 30’. See Committee on Enforced Disappearances, Urgent Actions Registered by the Committee from March 2012 to 11 October 2016, available at http://www.ohchr.org/EN/ HRBodies/CED/Pages/Membership.aspx. 740

  See, eg, Art 9(2) ICERD; Art 44(5) CRC. Art 45 ICCPR provides for reporting to the General Assembly, through the Economic and Social Council. Pursuant to Economic and Social Council Decision 1985/105 (8 February 1985) and 1985/117 (24 May 1985), the Secretary-General is authorized to transmit the report of the Committee directly to the General Assembly. 741

  For example, the Committee against Torture submits its report also to states parties to the CAT: Art 24 CAT. Pursuant to Art 21(2) CEDAW, the annual reports of the Committee are also transmitted to the Commission on the Status of Women for its information. Pursuant to Art 74(8) ICMW, the Secretary-General transmits reports of the Committee to states parties to the Convention, the ECOSOC, the HRC, the ILO, and other relevant organizations. The Committee on the Rights of Persons with Disabilities also reports to ECOSOC: Art 39 CRPD.

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742

  GA Res 43/115 (1988). Pursuant to the Resolution, the Commission on Human Rights adopted a resolution, requesting the Secretary-General ‘to entrust an independent expert with the task of preparing a study, within existing resources on possible long-term approaches to enhancing the effective operation of existing and prospective bodies established under United Nations human rights instruments’: Commission on Human Rights Res 1989/47. The Secretary-General appointed Philip Alston to prepare the study. An initial report was published in November 1989: Effective Implementation of International Instruments on Human Rights, including Reporting Obligations under International Instruments on Human Rights, UN Doc A/44/668, 8 November 1989; an interim report in April 1993: Interim Report on Updated Study by Mr Philip Alston, UN Doc A/CONF.157/PC/ 62/Add.11/Rev.1, 22 April 1993; and a final report in March 1997: Effective Functioning of Bodies Established Pursuant to United Nations Human Rights Instruments, UN Doc E/CN. 4/1997/74, 27 March 1997. 743

  Recommendations included that the High Commissioner on Human Rights consult with international agencies to engage with states on ratifying human rights treaties to which they are not party (UN Doc E/CN.4/1997/74, Annex, para 32); providing funding to support the preparation of initial reports of ‘newly-ratifying developing countries’, as the complexity of such a process can discourage compliance from these states parties (ibid, para 34); and instituting a more streamlined reporting process for states with populations of fewer than 1 million people in order to reduce the burden of reporting (ibid, para 35). 744

  The number of significantly overdue reports was a primary focus of the ‘Alston proposals’. The Independent Expert put forward a number of proposals in this regard, including that states parties prepare a single consolidated report that would satisfy the state’s reporting obligations under all the treaties to which it is party (ibid, para 90); replace comprehensive periodic reports with specific reporting guidelines that are tailored to each state’s individual situation (ibid, paras 91–3); and the adoption of procedures by the treaty bodies by which the human rights situation in a state party would be examined in the absence of a report (ibid, paras 45, 112). 745

  The Independent Expert recommended that summary records of the documentation of the human rights treaty bodies be devised. He proposed that ‘[p]riority should be accorded to transferring the existing data on to electronic databases and ensuring the timely publication, including in electronic form, of all summary records as soon as they are available’ (ibid, paras 59, 115). 746

  The Independent Expert put forward a number of proposals that would, to varying degrees, consolidate the functions of the human rights treaty bodies. The final report suggested that, should the political will exist for the reduction of the number of human rights treaty bodies, ‘a small expert group should be convened to examine modalities’ (ibid, para 120). More specific proposals were outlined, including amending the ICMW ‘to entrust the supervisory functions to an existing committee’ (ibid, para 120). 747

  The Commission on Human Rights invited the Secretary-General to consult with states; UN entities, including the specialized agencies; intergovernmental organizations; NGOs; and interested persons. Commission on Human Rights, Decision 1997/105; Commission on Human Rights, Resolution 1998/27. See also GA Res 53/138 (1999). 748

  The reports are available at http://www.ohchr.org/EN/HRBodies/HRTD/Pages/ TBStrengthening.aspx. 749

  See Report of the Eighth Meeting of Persons Chairing the Human Rights Treaty Bodies, UN Doc A/51/482.

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750

  Report of the Secretary-General, Strengthening of the United Nations: an agenda for further change, UN Doc A/57/387, 9 September 2002, para 54. The ‘Single Report’ proposal was developed to address the pervasive issue of significant delays by states parties to report to the relevant human rights treaty bodies and, in some cases, the failure by states parties to report at all. The Secretary-General noted that the human rights treaty system comprises ‘disparate human rights committees—each focusing on important but discrete issues…[which] imposes difficult reporting demands on treaty signatories’ (ibid, para 53). The General Assembly adopted a resolution in which it encouraged ‘States parties…and the respective treaty bodies to review the reporting procedures of treaty bodies with a view to developing a more coordinated approach and to streamlining the reporting requirements under these treaties’: GA Res 57/300 (2002), para 8. Additionally, the Office of Internal Oversight Services, in its management review of the OHCHR, indicated that the Office ‘should consistently pursue consultations with the treaty bodies on the modalities for consolidating reporting under various treaty obligations into one single national report with a view to achieving steady progress towards this goal’ (Note by the Secretary-General, Management Review of the Office of the United Nations High Commissioner for Human Rights, UN Doc A/57/488, 21 October 2002, para 63). It found that ‘[m]any developing countries experience considerable difficulty in coping with the burden of separate reporting to each treaty body…[but noted that] achieving such rationalization and consolidation would require considerable time and effort’ (ibid, para 10). 751

  See ‘Action 3’, in Report of the Secretary-General, UN Doc A/57/387, n 750, p 13.

752

  The strongest sentiments were expressed by the Human Rights Committee. See HRI/ ICM/2003/3, 11 April 2003, para 9(a). 753

  ibid, para 9(b). See also ECOSOC, Effective Functioning of Human Rights Mechanisms: Treaty Bodies, UN Doc E/CN.4/2003/126, 26 February 2003, para 4. Similar sentiments were expressed by the Committee on the Rights of the Child, which noted that ‘a single report might lack the necessary treaty specificity’ (HRI/ICM/2003/3, n 752, para 9(c)); the Committee on the Elimination of Discrimination against Women, which noted that ‘a single report might jeopardize the “object and purpose of the Convention”’ (ibid, para 9(d)); and the Committee on the Elimination of Racial Discrimination, which raised concerns about ‘the modalities of updating the single report; whether such a report could add to the burden confronting States parties; and whether a single report might result in marginalizing reporting on the implementation of specific rights or issues such as racial discrimination’ (ibid, para 9(e); see also para 47). 754

  Letter dated 13 June 2003 from the Permanent Representative of Liechtenstein to the United Nations addressed to the Secretary-General, UN Doc A/58/123, 8 July 2003, Annex, para 20. The participants emphasized that ‘the concept of such a report is closely linked to the concept of a single treaty body’ (ibid, para 24). It was also suggested that a single report could be an option for smaller states to pursue due to their limited administrative and human resources, but concern was raised as to whether a single report ‘would in fact ease the burden of reporting currently imposed on States parties’ (ibid, para 28). 755

  Report of the Secretary-General, In larger freedom: towards development, security and human rights for all, UN Doc A/59/2005, 21 March 2005, para 147. 756

  ibid.

757

  The United Nations High Commissioner for Human Rights, The OHCHR Plan of Action: Protection and Empowerment (May 2005). 758

  ibid, para 99.

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759

  Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body, HRI/MC/2006/2, 22 March 2006. 760

  ibid, para 28. Cross-cutting could include ‘a single cycle for reporting by each State Party on implementation of all treaty obligations’, which would also provide ‘a framework for prioritization of action needed at the country level to comply with human rights obligations’ (ibid, para 28). The paper also indicated that ‘[a] unified standing treaty body would ensure a consistent approach to the interpretation of provisions in the treaties which are similar or overlap substantively. Complainants would also have the opportunity to invoke substantively overlapping or similar provisions of more than one instrument, thereby enhancing consistency and coherence in the interpretation of substantively similar provisions in the different instruments’ (ibid, para 30). 761

  These included: (i) a single body with no chambers or working groups, which would ensure consistency of interpretation, but would neither redress backlogs nor alleviate the workload issues in the existing system (ibid, para 40); (ii) chambers operating in parallel, with each chamber holding a mandate for all treaties and monitoring functions (ibid, para 41); (iii) chambers operating along functional lines, with separate chambers for the consideration of reports and individual complaints, in addition to inquiries and country visits, as well as a ‘follow-up’ or ‘implementation’ chamber (ibid, para 42); (iv) chambers operating along treaty lines, which would facilitate distribution of workload and maintain treaty specificity, but which might not redress the duplication and might lead to inconsistent interpretation of provisions (ibid, para 43); (v) chambers operating along thematic lines, with chambers structured along clusters of rights, such as nondiscrimination and the rule of law, thus reducing the risk of inconsistencies in interpretation but proving difficult to define and potentially leading to overlap (ibid, para 44); and (vi) chambers operating along regional lines, which would allow for the development of expertise in human rights issues in a particular region, but could also lead to duplication of the work of regional systems, as well as inconsistency in interpretation between the regional chambers (ibid, para 45). 762

  ibid, para 46.

763

  It noted a number of possibilities in the establishment of a unified treaty body, including by amending each of the human rights treaties to allow complaints, require reporting, and so on, to the new body; an overarching amending procedural protocol or non-binding solutions, such as ‘a gradual transfer of competencies to one of the existing human rights treaty bodies’ (ibid, para 64). 764

  See OHCHR, Legal Options for the Establishment of a Unified Treaty Body, available at http://www.ohchr.org/EN/HRBodies/HRTD/Pages/TBStrengthening.aspx. 765

  Permanent Representative of Liechtenstein to the United Nations, Letter dated 14 September 2006 from the Permanent Representative of Liechtenstein to the United Nations addressed to the Secretary-General, UN Doc A/61/351, 18 September 2006, Annex, paras 31–3. 766

  ibid, para 12.

767

  ibid, para 13.

768

  Pillay, Strengthening the United Nations human rights treaty body system: A report by the United Nations High Commissioner for Human Rights (June 2012). 769

  See GA Res 66/254 (2012). The mandate was extended twice until February 2014. See GA Res 66/295 (2012) and 68/2 (2013).

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770

  UN General Assembly, United Nations Reform: Measures and Proposals, UN Doc A/ 66/860 (2012). 771

  The HRC also, in 2014, passed Res 9/8 on the ‘Effective implementation of international human rights instruments’. In this resolution, the Council observed a number of improvements made to the human rights treaty body system ‘by streamlining, rationalizing, rendering more transparent and otherwise improving working methods and reporting procedures’, including by reducing duplication of reporting under the different instruments, and harmonizing the general guidelines regarding the form and content of reports across all treaty bodies: HRC Res 9/8, para 3. 772

  See GA Res 68/268 (2014), paras 17–21. The OHCHR was requested to provide advisory services, technical assistance, and capacity-building support, in consultation with and with the consent of the relevant state party. It was envisaged that such services would be provided through, ‘inter alia, the United Nations Voluntary Fund for Technical Cooperation in the Field of Human Rights and in conjunction with the provision of technical assistance, with a focus on measures to build sustainable capacity in their activities to fulfil their treaty obligations’ (see ibid, para 18) in addition to the advisory services, technical assistance, and capacity-building provided to states parties through the agencies, funds, and programmes of the UN system and UN country teams (ibid, para 19). It was envisaged, more specifically, that the OHCHR would, inter alia, deploy ‘a dedicated human rights capacity-building officer in every regional office’ of the OHCHR, as required (ibid, para 17(a)), as well as ‘[p]roviding direct assistance to States parties at the national level by building and developing institutional capacity for reporting and strengthening technical knowledge through ad hoc training on reporting guidelines at the national level’ (ibid, para 17(d)). Between January 2015 and June 2016, some 50 instances of direct assistance were provided, which involved improving the knowledge of the human rights treaties and reporting skills on the part of state officials from 26 countries: Report of the SecretaryGeneral, Status of the human rights treaty body system, UN Doc A/71/118 (2016), para 11. Workshops for the training of trainers were also held in 2015–16, which led to state officials from 58 countries possessing knowledge of reporting to the treaty bodies (ibid, paras 12– 14). 773

  See GA Res 68/268 (2014), para 26. The OHCHR has observed that the additional meeting time in 2015 ‘had the desired effect of increasing the number of concluding observations, decisions and views adopted…a 26 per cent increase from 2013’: Report of the Secretary-General, n 772, para 27. However, despite the increased output and productivity of the bodies, the overall backlog of communications increased, principally due to a ‘sharp increase’ in the number of individual communications received (ibid, paras 31 and 37). The allocation of time within the new periods will also be revised, with more time dedicated to individual communications as a result of a rise in their number in comparison to reviews of states parties’ reports. The meeting time for communications will increase from 8.3 to 16 weeks per year; the meeting time for reviews of state parties’ reports will decrease from 66.3 to 59.2 weeks per year (ibid, para 41). 774

  The human rights treaty bodies were encouraged by the General Assembly to accelerate ‘the harmonization of the treaty body system’ by, inter alia, enhancing the role of the Chair in relation to procedural matters, promptly generalizing good practices and methodologies among all treaty bodies, ensuring coherence across the treaty bodies, and standardizing working methods: GA Res 68/268 (2014), para 38. The General Assembly proposed that this might also be done through ‘interaction during the annual meetings of

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the Chairs of the treaty bodies with States parties to all human rights treaties’ (ibid, para 39). A number of procedural matters that could be improved were identified in GA Res 68/268 (2014), including simplified reporting procedures; aligning methodologies between human rights treaty bodies in the constructive dialogue with states parties; the adoption of ‘short, focused and concrete concluding observations…[which] further encourages [the treaty bodies] to develop common guidelines for the elaboration of such concluding observations’; and the development of ‘an aligned consultation process for the elaboration of general comments’. On these recommendations, see nn 626, 635, and 673, respectively. 775

  The General Assembly encouraged states parties to the respective human rights treaties ‘to nominate experts of high moral standing and recognized competence and experience in the field of human rights…and, as appropriate, to consider adopting national policies or processes with respect to the nomination of experts as candidates for human rights treaty bodies’. See GA Res 68/268 (2014), para 10. It also encouraged states parties to give due consideration to ‘equitable geographical distribution, the representation of the different forms of civilization and the principal legal systems, balanced gender representation and the participation of experts with disabilities in the membership of the human rights treaty bodies’. (ibid, para 13). In 2015, the Secretary-General, referring to GA Res 68/268 (2014), expressed concern over the gender imbalance in treaty body membership, as well as inequitable geographical distribution. See Report of the SecretaryGeneral, Promotion of equitable geographical distribution in the membership of the human rights treaty bodies, UN Doc A/70/257 (2015), para 27. At 1 January 2016, of the 172 treaty body members, 44 per cent were women, but if the Committee on the Elimination of Discrimination against Women were to be excluded from the figure, only 31 per cent of the members of the treaty bodies were women. Furthermore, at June 2015, only three of the 10 treaty body chairs were women. Report of the Secretary-General, n 772, para 80. See further para 22.166. 776

  See GA Res 68/268 (2014), para 23. With a view to ‘enhancing the accessibility and visibility of the human rights treaty bodies’, the General Assembly decided in principle that the human rights treaty bodies should webcast their public meetings (ibid, para 22). As part of a pilot project funded by extra-budgetary resources to examine the feasibility of the decision of the General Assembly, equipment was installed for webcasting and videoarchiving in three rooms used by the human rights treaty bodies. The public meetings will be streamed live in the language of the speaker and in English on UN WEB TV, available at http://webtv.un.org/. The project is to run from September 2016 until June 2017. However, unless funding is provided by the General Assembly, webcasting will not continue beyond this project. See Report of the Secretary-General, n 772, Annex XX: UN Webcasting and video-archiving of treaty body meetings. See also ibid, para 84. 777

  GA Res 68/268 (2014), para 41.

778

  These include the Fourth World Conference on Women, which was held in Beijing in 1995; the World Conference against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, which was held in Durban in 2001; and the Durban Review Conference, which was held in Geneva in 2009. 779

  The year 1968 was also the International Year of Human Rights. See GA Res 1961 (XVIII) (1963). The Government of Iran had extended an invitation for the International Conference to be held in Teheran. See GA Res 2217C (XXI) (1966).

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780

  GA Res 2081 (XX) (1965). In that Resolution, the General Assembly also linked the convening of the Conference with the promotion of the principles contained in the UDHR, the development of human rights, the elimination of discrimination and denial of human rights ‘on grounds of race, colour, sex, language or religion’, and the elimination of apartheid. In GA Res 2339 (XXII) (1967), the General Assembly expressed the hope that the International Conference would ‘devote particular attention to the adoption of measures to ensure the immediate and complete elimination of all forms of racial discrimination, apartheid and colonialism’. 781

  For the list of participants, see Final Act of the International Conference on Human Rights, Teheran, 22 April to 13 May 1968, UN Doc A/CONF.32/41, Annex I. 782

  The Proclamation of Teheran included provisions on the indivisibility of human rights and the UDHR as a ‘common understanding of the peoples of the world concerning… inalienable and inviolable rights’, as well as provisions on ‘the repugnant policy of apartheid’, discrimination against women, and illiteracy. Resolutions adopted by the Conference included those on non-discrimination, the realization of economic, social and cultural rights, and human rights in armed conflicts. For the Proclamation and the Resolutions, see Final Act of the International Conference on Human Rights, Teheran, 22 April to 13 May 1968, UN Doc A/CONF.32/41, 5–20. The Teheran Conference was particularly notable for its resolution on ‘human rights in armed conflict’, which considered, inter alia, that ‘the Red Cross Geneva Conventions of 1949 are not sufficiently broad in scope to cover all armed conflicts’. This led to a ‘renaissance of the law of war in the early 1970s’. Meron, ‘The Humanization of Humanitarian Law’ (2000) 94 AJIL 239, 247. See further Suter, An International Law of Guerrilla Warfare (1984), ch 2. 783

  The early 1990s was a period in which a number of international conferences were held. Among the conferences that were held during this time were the United Nations Conference on Environment and Development (1992); the International Conference on Population and Development (1994); and the Fourth World Conference on Women (1995). The Conference was held in Vienna following an invitation by the Government of Austria. See GA Decision 46/473 (1992), in GAOR, UN Doc A/46/49/Add.1 (1992). 784

  GA Res 45/155 (1990).

The idea of a conference was suggested in 1989, at the end of the Cold War. It was hoped that the UN would be able to pursue its human rights agenda anew. However, by the time of the Conference, there was ‘little of the euphoria and enthusiasm which had swept the world in 1989’: Boyle, ‘Stock-Taking on Human Rights: The World Conference on Human Rights, Vienna 1993’ in Politics and Human Rights (ed Beetham, 1995), 79. 785

  For the list of participants, see Report of the World Conference on Human Rights: Report of the Secretary-General, UN Doc A/CONF.157/24, Annex II. In total, some 7,000 persons participated. 786

  The General Assembly endorsed the Vienna Declaration and Programme of Action in GA Res 48/121 (1994). The UN High Commissioner for Human Rights has described the Vienna Declaration and Programme of Action as ‘the most significant human rights document produced in the last quarter of the twentieth century’: Pillay, ‘Introduction’ in Vienna Declaration and Programme for Action: 20 Years Working for Your Rights (OHCHR, June 2013), 9. Another author, who was present at the Vienna Conference, has described it as ‘the most

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comprehensive human rights document in the history of the United Nations’: Flinterman, ‘Vienna Declaration and Programme of Action: 20 Years Later’ (2013) 31 NQHR 128, 129. The Conference was not without controversy. The agenda for the Conference was initially disputed, and was agreed only following the intervention of the General Assembly to that end. The sessions of the Conference have also been described as ‘bad tempered’: Boyle, n 784, 80. 787

  The Decision concerned an appeal to the Security Council ‘to take the necessary measures to end the genocide taking place in Bosnia and Herzegovina, and in particular at Gorazde’. The armed conflict in the former Yugoslavia was raging at the time of the Conference. One special declaration also concerned the situation in Bosnia and Herzegovina. In it, the Conference called on the international community, in particular the Security Council, to ‘take forceful and decisive steps for effective measures of peace-making in the Republic of Bosnia and Herzegovina’. The Special Declaration on Angola called on the international community, in particular the Security Council, to take steps to implement an effective cease-fire and restore peace and security in the Republic of Angola, and to apply pressure on the National Union for the Total Independence of Angola (UNITA) to accept the results of the 1992 elections and abide by the Peace Accords. For the text of the Decision and Special Declarations, see Report of the World Conference on Human Rights: Report of the Secretary-General, UN Doc A/CONF.157/24, 47–51. 788

  Vienna Declaration and Programme of Action, Part I, para 5. The provisions were particularly important given the prioritization of civil and political rights over economic, social, and cultural rights, or vice versa, in certain states. The Declaration, Part I, para 8, also notes that ‘[d]emocracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing’. The provision was again important in light of doubts in certain quarters as to the existence of a right to development. Also of importance is the first operative paragraph, which reaffirms ‘the solemn commitment of all States to fulfil their obligations to promote universal respect for, and observance and protection of, all human rights and fundamental freedoms for all in accordance with the Charter of the United Nations, other instruments relating to human rights, and international law. The universal nature of these rights and freedoms is beyond question.’ The universality of human rights was thus affirmed. 789

  See, eg, the Convention on the Rights of Persons with Disabilities, Preamble; GA Res 48/141 (1993). 790

  These include provisions on ‘the full and equal enjoyment by women of all human rights and that this be a priority for Governments and for the United Nations’ (Part II, para 36); the integration of the ‘equal status of women and the human rights of women…into the mainstream of United Nations system-wide activity’ and the strengthening of coordination and cooperation between the (then) Centre for Human Rights and the Division for the Advancement of Women (Part II, para 37); encouraging ‘the goal of universal ratification by all States of the Convention on the Elimination of All Forms of Discrimination against Women by the year 2000’ and addressing ‘the particularly large number of reservations’ to the Convention (Part II, para 39); and reaffirmation ‘on the basis of equality between women and men, [of] a woman’s right to accessible and adequate health care and the

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widest range of family planning services, as well as equal access to education at all levels’ (Part II, para 41). 791

  Part II, para 28 (completion of the drafting of a declaration on the rights of indigenous peoples); Part II, para 38 (calling on the General Assembly to adopt the draft Declaration on Violence against Women); Part II, para 40 (examination of ‘the possibility of introducing the right of petition through the preparation of an optional protocol to the Convention on the Elimination of All Forms of Discrimination against Women’); Part II, para 75 (continued examination of optional protocols to the ICESCR). 792

  At Part II, para 18, the World Conference recommended that the General Assembly ‘begin, as a matter of priority, consideration of the question of the establishment of a High Commissioner for Human Rights for the promotion and protection of all human rights’. On the High Commissioner, see section 4, ‘Office of the United Nations High Commissioner for Human Rights’. 793

  Agenda Item 8.

794

  The General Assembly and Security Council are located in New York. By contrast, the OHCHR and HRC are located in Geneva. The meetings of the human rights treaty bodies also take place in Geneva. Furthermore, other entities the work of which is linked to human rights, such as UNHCR and the ICRC, are located primarily in Geneva. There are some exceptions to this, notably the Office of the Special Representative of the Secretary-General on Children and Armed Conflict, the Office of the Special Adviser on the Prevention of Genocide, and the Office of the Special Adviser on Responsibility to Protect, which are located in New York. The General Assembly and Security Council also undertake work in the field of human rights. See section 2.2, ‘The General Assembly’ and 2.3, ‘The Security Council’, respectively. Historically, there was a further fragmentation, with the CEDAW Committee meeting in Vienna and New York and being serviced by the UN Division for the Advancement of Women, which was located in Vienna. However, responsibility for supporting the Committee has since been transferred to OHCHR, and the Committee meets in Geneva. 795

  The importance of mainstreaming or integrating human rights into the work of the UN tends to be a consistent feature of major UN reports. See, eg, Renewing the United Nations: A Programme for Reform, Report of the Secretary-General, UN Doc A/51/950 (1997), para 79; Strengthening of the United Nations: An Agenda for Further Change, Report of the Secretary-General, UN Doc A/57/387 (2002), para 48; In larger freedom: towards development, security, and human rights for all, Report of the Secretary-General, UN Doc A/ 59/2005 (2005), para 144. See also World Summit Outcome, GA Res 60/1 (2005), para 126. As Oberleitner, n 137, 105, notes, ‘[m]ainstreaming human rights is a challenge because it means departing from the 1945 model of splitting up the management of “global commons” to separate specialized agencies on development, environment, human rights, etc’. 796

  The New York office of the OHCHR seeks, among other things, ‘to ensure the recognition of human rights in all areas of work of the United Nations Organization. In particular, it aims at ensuring that human rights standards and principles are increasingly integrated into the peace and security, development, and humanitarian work of the United Nations’. See at http://www.ohchr.org/EN/newyork/Pages/Ourwork.aspx. The SecretaryGeneral’s Bulletin, n 337, section 7, sets out the functions of the New York Office. These include ‘[s]upplying information and advice on human rights to the Executive Office of the Secretary-General’, ‘[p]roviding substantive support on human rights issues to the General Assembly, the Economic and Social Council, and other policy-making bodies established in New York’, and ‘[p]roviding materials and information to the permanent missions, United

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Nations departments, agencies and programmes, non-governmental organizations, the media and others regarding the human rights programme’. The New York office has grown over time. Since 2010, it has been headed by an Assistant Secretary-General for Human Rights. See OHCHR Report 2010 (2011), 219. The Assistant Secretary-General has briefed members of the Security Council on numerous occasions. In 2015, OHCHR located the Peace Missions Support Section (PMSS) in New York. The PMSS assists with the integration of human rights in UN peace missions, and provides technical support and assistance to those missions. Being located in New York allows for better coordination with the Department of Peacekeeping Operations, the Department of Political Affairs, and the Department of Field Support. See OHCHR Report 2015 (2016), 53. Also in 2015, the High Commissioner announced plans to strengthen the New York Office further and move some of the functions of the Geneva office to the New York office. This is intended to ‘support the integration of human rights concerns and approaches on the development and peace and security agenda’. See OHCHR Report 2015 (2016), 51. 797

  For example, through the establishment of an Office of the Ombudsperson to the Security Council 1267 Committee. On the Office of the Ombudsperson, see n 134. 798

  The Initiative was established in late 2013, following the Report of the SecretaryGeneral’s Internal Review Panel on United Nations Action in Sri Lanka (2012). That Report, at para 80, characterized UN action during the final stages of the armed conflict in Sri Lanka in 2008–9 as a ‘systemic failure’ and set out a number of recommendations. In response to the Report, the Secretary-General established the Human Rights Up Front Initiative, which grouped the recommendations into six categories, including ‘integrating human rights into the lifeblood of the UN so all staff understand their own and the Organization’s human rights obligations’, ‘strengthening the UN’s human rights capacity, particularly through better coordination of its human rights entities’, and ‘developing a common UN system for information management on serious violations of human rights and humanitarian law’. See at https://www.un.org/sg/en/content/ban-ki-moon/human-rightsfront-initiative. See further ‘“Rights Up Front” Detailed Action Plan’ (January 2014); Kurtz, ‘With Courage and Coherence: The Human Rights up Front Initiative of the United Nations (July 2015). The Rights Up Front Initiative ‘repositions the United Nations system culturally, operationally and politically to take early and effective action to prevent or respond to serious violations of international human rights or humanitarian law’. It contributes ‘to a more consistent inclusion of a human rights perspective in United Nations peace and security, humanitarian and development work, and to a common understanding of the Organization’s shared responsibility to prevent serious violations’: Strengthening and coordinating United Nations rule of law activities: Report of the Secretary-General, UN Doc A/70/206, 27 July 2015, para 33. 799

  See, eg, Report of the Human Rights Committee, vol I, UN Doc A/69/40, para 34.

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Part 3 The United Nations: What it Does, 23 Office of the United Nations High Commissioner for Refugees Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): Refugees

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(p. 879) 23  Office of the United Nations High Commissioner for Refugees 1.  Establishment 23.01 2.  Position within the UN system 23.02 3.  Structure 23.05 4.  Location 23.16 5.  Mandate and role 23.17 6.  Funding 23.41 Aleinikoff, ‘The Mandate of the Office of the United Nations High Commissioner for Refugees’ in Research Handbook on International Law and Migration (eds Chetail and Bauloz, 2014); Beigbeder, Le Haut Commissariat des Nations Unies pour les réfugiés (1999); Belloni, ‘L’Alto Commissariato per I rifugiati e la protezione internazionale’ in Le organizzazioni internazionali: struttura, funzioni, impatto (eds Belloni, Moschellla, and Sicurelli, 2013); Betts, Loescher, and Milner (eds), UNHCR: The Politics and Practice of Refugee Protection (2008); Feller and Klug, ‘Refugees, United Nations High Commissioner for (UNHCR)’ in MPEPIL (online); Goodwin-Gill and McAdam, The Refugee in International Law (2007); Hathaway, The Rights of Refugees under International Law (2005); Janmyr, Protecting Civilians in Refugee Camps (2013); Kälin, ‘Supervising the 1951 Convention relating to the Status of Refugees: Article 35 and Beyond’ in Refugee Protection in International Law (eds Feller, Türk, and Nicholson, 2003); Lewis, UNHCR and International Refugee Law (2012); Loescher, The UNHCR and World Politics (2001); Simeon (ed), The UNHCR and the Supervision of International Refugee Law (2013); Türk Das Flüchtlingshochkommissariat der Vereinten Nationen: UNHCR (1992); Türk, ‘The Role of UNHCR in the Development of International Refugee Law’ in Refugee Rights and Realities: Evolving International Concepts and Regimes (eds Nicholson and Twomey, 1999); UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (reissued 2011); UNHCR, Note on the Mandate of the High Commissioner for Refugees and his Office, Division of International Protection, October 2013; UNHCR, Thematic Compilation of General Assembly and Economic and Social Council Resolutions (2015); UNHCR, Thematic Compilation of Executive Committee Conclusions (forthcoming, 2017); http:// www.unhcr.org; http://www.refworld.org; Zimmerman (ed), The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol (2011).

(p. 880) 1.  Establishment 23.01  The Office of the United Nations High Commissioner for Refugees (UNHCR) was established by the General Assembly in 1950.1 The Statute of the Office of the United Nations High Commissioner for Refugees (hereinafter ‘Statute of the UNHCR’) is annexed to General Assembly Resolution 428(V) (1950).2 The UNHCR was initially created for a provisional period of three years, it being provided in the Statute that the arrangements for the Office were to be revisited at the 8th regular session of the General Assembly, ‘with a view to determining whether the Office should be continued beyond 31 December 1953’.3 (p. 881) Between 1953 and 2003, the mandate of the UNHCR was extended periodically, for a period of five years at a time,4 making it more difficult for the UNHCR to engage in longterm planning of its work. Only in 2004, more than 50 years after it was established, did the General Assembly remove the temporal limitation attached to the UNHCR, authorizing the continuation of the Office ‘until the refugee problem is solved’.5 As the ‘refugee problem’ is

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unlikely to be solved in the near future, the UNHCR is effectively a de facto permanent organ.

2.  Position within the UN system 23.02  The UNHCR is a subsidiary body of the General Assembly.6 It operates under the authority of the General Assembly, and is required to follow policy directives of the General Assembly and ECOSOC.7 Nonetheless, the UNHCR enjoys significant operational independence.8 The High Commissioner is ‘elected by the General Assembly on the nomination of the Secretary-General’,9 and the High Commissioner reports annually to the General Assembly.10 23.03  The Statute of the UNHCR provides: ‘The High Commissioner may invite the cooperation of the various specialized agencies.’11 The UNHCR works closely with key partners, such as the World Food Programme (WFP), International Organization for Migration (IOM), International Labour Organization (ILO), United Nations Devel(p. 882) opment Programme (UNDP), the Office of the United Nations High Commissioner for Human Rights (OHCHR), United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA), and the United Nations Children’s Fund (UNICEF), in areas of mutual concern.12 It also liaises and cooperates with other international, regional, and national actors.13 Further, the UNHCR plays an important role within the Inter-Agency Standing Committee (IASC).14 Inter-agency relations have not always been easy, and at various points in the UNHCR’s history tensions have arisen between UN entities around the scope of, and interaction between, mandates and competition over funding and resources;15 however, relationships have become smoother over time. 23.04  The UNHCR works closely with non-governmental organizations (NGOs) as partners, dispersing funds to them in order that they may administer assistance to refugees, providing them with training on refugee issues, and enhancing their capabilities.16 (p. 883) It also undertakes an annual consultation with NGOs.17 Further, the UNHCR works closely with the ICRC.

3.  Structure 3.1  Executive Committee of the High Commissioner’s Programme 23.05  The Executive Committee of the High Commissioner’s Programme was established by ECOSOC in 1958, pursuant to a request of the General Assembly to establish an Executive Committee.18 At October 2016, the Executive Committee comprised representatives of 98 states, with all UN member states being able to apply to join.19 The resolution of ECOSOC that established the Executive Committee provides that they are to be elected by ECOSOC, from states that have ‘a demonstrated interest in, and devotion to, the solution of the refugee problem’.20 Nonetheless, states that have been criticized for their treatment of refugees are members of the Committee, as are (p. 884) states that are not parties to the 1951 Convention Relating to the Status of Refugees and/or the 1967 Protocol Relating to the Status of Refugees. 23.06  The Executive Committee has an oversight as well as an advisory function. Its mandate includes the approval of UNHCR programmes and the budget for those programmes.21 The General Assembly has indicated that the UNHCR is to abide by the directions of the Executive Committee ‘with regard to refugee situations’.22 The Executive Committee has exercised ‘a growing influence over the day-to-day management and policy work of UNHCR’.23 The mandate of the Executive Committee also includes advising the ‘High Commissioner, at his or her request, in the exercise of his functions under the Statute of the Office’.24 Advice to the High Commissioner on issues of international protection is

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given primarily in the form of Executive Committee Conclusions on International Protection, which are adopted by consensus. 23.07  The Executive Committee meets in plenary session, on an annual basis, in Geneva.25 It reports annually to the General Assembly.26 A standing item on the agenda of plenary sessions is that of international protection. The Executive Committee aims each year to adopt ‘Conclusions’ on International Protection, which address key protection or operational challenges related to the UNHCR’s work, or to the situation of refugees and other persons of concern worldwide.27 These Conclusions are not binding on states; however, they have proved to be influential and constitute useful (p. 885) interpretive guidance with respect to international refugee law.28 They are similarly influential in so far as the UNHCR is concerned.29 23.08  The Standing Committee of the Whole, a subsidiary body of the Executive Committee, meets inter-sessionally, usually three times a year, and considers issues relating to the work of the UNHCR.30 The Standing Committee influences the programmes and policies of the UNHCR.31

3.2  High Commissioner 23.09  An individual is nominated to the post of High Commissioner by the SecretaryGeneral and elected by the General Assembly.32 The terms of appointment have varied considerably.33 (p. 886) 23.10  The position of High Commissioner does not carry with it great political or legal weight. However, it does carry with it considerable moral weight, and much turns on the personality and capability of the individual High Commissioner.34 Much of the work of the High Commissioner involves placing refugee issues on the international agenda and raising refugee issues with high-level officials at the national level.35 An individual High Commissioner can also shape the direction and focus of the Office considerably.36

3.3  Deputy and Assistant High Commissioners 23.11  The High Commissioner appoints a Deputy High Commissioner, who may not be of the same nationality as the High Commissioner.37 There are also two Assistant High Commissioners, one for Protection and one for Operations.38

3.4  Representatives 23.12  The High Commissioner appoints his/her representatives in countries in which refugees reside. The High Commissioner is to consult with the governments of such countries prior to making any such appointments.39

3.5  Organizational structure and staffing 23.13  The UNHCR has various divisions. The Division of Financial and Administrative Management, the Division of Information Systems and Telecommunications, the (p. 887) Division of External Relations, and the Division of Human Resources Management are under the auspices of the Deputy High Commissioner. The Division of Emergency Security and Supply, the Division of Programme Support and Management, and the various regional Bureaux are under the auspices of the Assistant High Commissioner (Operations); and the Division of International Protection is under the auspices of the Assistant High Commissioner (Protection).40 23.14  The Division of International Protection, the division with primary responsibility for the legal aspects of the UNHCR’s work, is subdivided into distinct services.41 Service I, covering policy and law, includes such units as protection policy and legal advice, refugee status determination, statelessness, and protection and national security. Service II, on protection and operational support, includes such units as internally displaced persons,

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child protection, and gender; and Service III on protection management, includes comprehensive solutions and education. The fourth Service covers resettlement.42 23.15  At 31 October 2016, the UNHCR employed approximately 10,700 people, of whom around 87 per cent were located in the field.43 The UNHCR also has a number of goodwill ambassadors, usually celebrities, who use their profile to raise public awareness of the plight of refugees.44

4.  Location 23.16  The Headquarters of the UNHCR is located in Geneva, Switzerland,45 with Global Service Centres in Budapest, Hungary, Copenhagen, Denmark, and Amman, Jordan. Given the nature of its work, the UNHCR has field presences in over 125 countries.46 Regional offices cover several countries, or serve as technical support hubs while (p. 888) country offices focus on a single country. Field offices, sub-offices, and field units within a country are located closer to refugee and displaced populations. The UNHCR also maintains an office in New York, liaising with the UN system there and with states missions to UN Headquarters; as well as a segment of the Europe Bureau based in Brussels, which liaises with the EU; while a liaison unit in Addis Ababa covers the African Union.47

5.  Mandate and role 23.17  The UNHCR’s mandate stems principally from its Statute,48 but also from the 1951 Refugee Convention and its 1967 Protocol,49 from regional refugee instruments50 and human rights instruments,51 and from various resolutions of its parent body—the General Assembly.52 The Statute of the UNHCR provides that its work is required to be ‘of an entirely non-political character’, ‘humanitarian and social’, and relate, ‘as a rule, to groups and categories of refugees’.53 However, the realities of state responses to refugee movements, and the political debates such movements trigger, raise questions about whether it is possible to act effectively in the refugee protection domain without engaging with political processes and discussions.54

(p. 889) 5.1  Persons within the UNHCR’s mandate 5.1.1  Refugees 23.18  The Statute of the UNHCR extends the competence ratione personae of the High Commissioner to: persons who were refugees under prior arrangements and instruments; persons who, ‘as a result of events occurring before 1 January 195155 and owing to wellfounded fear of being persecuted for reasons of race, religion, nationality or political opinion’, are outside their country of nationality, or if they do not have a nationality, outside the country of their former habitual residence, and who are unable or, ‘owing to such fear or for reasons other than personal convenience’, unwilling to avail themselves of the protection of that country;56 and ‘[a]ny other person who is (p. 890) outside the country of his nationality, or if he has no nationality, the country of his former habitual residence, because he has or had well-founded fear of persecution by reason of his race, religion, nationality or political opinion and is unable or, because of such fear, is unwilling to avail himself of the protection of the government of the country of his nationality, or, if he has no nationality, to return to the country of his former habitual residence’. 23.19  It also provides that the competence does not extend to certain persons.57 23.20  The 1951 Convention Relating to the Status of Refugees defines a refugee in a manner that is similar to that contained in the Statute of the UNHCR.58 However, there are two differences between the two definitions. Article 1A(2) of the Refugee Convention is broader than the definition in the Statute of the UNHCR, in that it includes persecution on the ground of ‘membership of a particular social group’.59 It is also narrower in that, pursuant to Article 1B of the Convention, the individual must be outside the country of his nationality as a result of events ‘occurring in Europe before 1 January 1951’ or, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

alternatively, ‘events occurring in Europe or elsewhere before 1 January 1951’, states parties deciding for themselves which alternative (p. 891) shall apply.60 The difficulties posed by the temporal and geographical limitations of the Convention definition were recognized by the General Assembly61 and removed by the 1967 Protocol.62 23.21  The General Assembly has also authorized the UNHCR to carry out activities in respect of individuals who do not fall within the Statutory or Convention notions of a refugee.63 This has extended the competence ratione personae of the UNHCR, inter alia, to individuals fleeing situations of armed conflict,64 who were later considered (p. 892) to fall within the scope of the Article 1A definition of a refugee;65 returnees, that is to say, refugees who have returned to their country of origin;66 and asylum-seekers, that is to say, individuals whose claims to refugee status have not yet been determined but whose applications mean that they could be refugees and thus in need of protection until their claims have been determined.67

5.1.2  Stateless persons 23.22  The Statute of the UNHCR provides that the competence of the High Commissioner extends to stateless refugees; the 1951 Refugee Convention also applies to stateless refugees.68 The UNHCR also has a role to play with respect to stateless persons who are not refugees. The 1961 Convention on the Reduction of Statelessness called for (p. 893) ‘a body to which a person claiming the benefit of this Convention may apply for the examination of his claim and for assistance in presenting it to the appropriate authority’, and the General Assembly designated the UNHCR as that body.69 The General Assembly has also tasked the UNHCR with certain functions in respect of stateless persons,70 and has noted the link between ‘the prevention and reduction of statelessness and the protection of stateless persons’ and ‘the prevention of potential refugee situations’.71 The mandate from the General Assembly was particularly important in light of the relatively few states that were parties to the Convention on the Reduction of Statelessness, and given that it extends to stateless persons who are not refugees.72 The Conclusions of the Executive Committee have provided further guidance on the UNHCR’s activities in respect of stateless persons.73 The work of the UNHCR in this context is manifold, and includes such things as assisting in the drafting of nationality legislation, providing training to state officials, assisting in the registration of births, and seeking to find solutions for stateless persons.74 The UNHCR has also (p. 894) published Guidelines on Statelessness, which are ‘intended to provide interpretive legal guidance for governments, NGOs, legal practitioners, decision-makers and the judiciary, as well as for UNHCR staff and other UN agencies involved in addressing statelessness’.75

5.1.3  Internally displaced persons 23.23  Notwithstanding the lack of mention of internally displaced persons in the Statute of the UNHCR, in the early 1990s76 the General Assembly supported the UNHCR’s efforts in respect of such persons.77 However, UNHCR activities in respect of internally displaced persons are not unconditional. They are limited to situations in which there has been a specific request by the Secretary-General or other appropriate UN organ, and consent on the part of the state concerned, and take into account the ‘complementarities of the mandates and expertise of other relevant organizations’.78 (p. 895) Furthermore, activities on behalf of internally displaced persons must not undermine the institution of asylum,79 or the mandate of the Office of the UNHCR.80 Regard is also had to the sufficiency of funding, in order that funding for activities in respect of refugees is not depleted.81 In 2005, as part of the humanitarian reform process, ‘clusters’ were created in order to improve the

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international response to humanitarian emergencies, and the IASC assigned the UNHCR as the cluster lead entity, inter alia, for conflict-related internally displaced persons.82 23.24  The UNHCR thus plays a significant role in respect of internally displaced persons.83 However, its work in respect of such persons is not uncontroversial. For some, internally displaced persons are in need of protection and assistance, and the UNHCR is the organization best placed to engage in such protection and assistance activities. For others, activities in respect of internally displaced persons take the UNHCR away from its statutory mandate. Furthermore, there is a certain tension between refugees and internally displaced persons, with some states attempting to prevent refugee movements through the ‘internal flight alternative’, thus potentially politicizing the work of the UNHCR.84

5.2  Functions 23.25  The UNHCR has two principal statutory functions: to ‘assume the function of providing international protection, under the auspices of the United Nations, to refugees’;85 (p. 896) and to seek ‘permanent solutions for the problem of refugees’.86 The international protection component of the mandate is sometimes considered the more important of the two, given that if protection is not afforded to refugees, permanent solutions may not prove possible.87 However, this is not without debate.88 The UNHCR considers the two functions to be ‘part of an indivisible continuum’, with a permanent solution being ‘the ultimate form of protection’.89 23.26  In addition to its statutory functions, the General Assembly may task the UNHCR with additional activities,90 and has done so. Accordingly, the precise role and functions of the UNHCR have changed over time.91 However, the expanded mandate of the UNHCR is not uncontroversial.92

(p. 897) 5.2.1  International protection 23.27  The notion of ‘international protection’ is not defined in the Statute. It has been described as ‘both a legal concept and at the same time very much an action-oriented function’.93 Article 8 of the Statute of the UNHCR provides: The High Commissioner shall provide for the protection of refugees falling under the competence of his Office by: (a)  Promoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto; (b)  Promoting through special agreements with Governments the execution of any measures calculated to improve the situation of refugees and to reduce the number requiring protection; (c)  Assisting governmental and private efforts to promote voluntary repatriation or assimilation within new national communities; (d)  Promoting the admission of refugees, not excluding those in the most destitute categories, to the territories of States; (e)  Endeavouring to obtain permission for refugees to transfer their assets and especially those necessary for their resettlement; (f)  Obtaining from Governments information concerning the number and conditions of refugees in their territories and the laws and regulations concerning them;

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(g)  Keeping in close touch with the Governments and inter-governmental organizations concerned; (h)  Establishing contact in such manner as he may think best with private organizations dealing with refugee questions; (i)  Facilitating the co-ordination of the efforts of private organizations concerned with the welfare of refugees. 94 (p. 898) 23.28  As is evident from the nine listed functions, international protection commences with admission to a safe country and concludes with the achievement of a durable solution.95 The absence of a statutory definition of international protection, coupled with the relative imprecision of the listed functions, has allowed the UNHCR to shape its role to meet the needs of the situation at hand.96 23.29  An important aspect of international protection is the UNHCR’s supervisory responsibility.97 Article 8(a) of the Statute refers to the UNHCR’s role in the supervision of international conventions for the protection of refugees. However, the Statute does not expand on the UNHCR’s supervisory responsibility.98 In practice, the UNHCR, inter alia, works with states to ‘design operational responses’, intervenes with states and other actors, advises on national refugee status determination systems, intervenes in cases before courts, gains access to, advises, and assists refugees and persons seeking asylum, advises on the drafting of legislation, undertakes advocacy, undertakes capacity-building activities, and receives and gathers data.99 In international instruments on the protection of refugees, states parties commit to cooperating with the UNHCR in the exercise of its functions and facilitating its duty of (p. 899) supervision.100 This entails, amongst other things, providing information and data to the UNHCR.101 23.30  One influential aspect of the UNHCR’s supervisory responsibility is its role in the development and effectiveness of refugee law.102 The mandate of the UNHCR includes ‘[p]romoting the conclusion and ratification of international conventions for the protection of refugees … and proposing amendments thereto’.103 The UNHCR has played an important role in the drafting of refugee conventions and instruments.104 It encourages states to ratify and accede to refugee conventions.105 It issues guidance (p. 900) on the interpretation of the 1951 Convention, as well as guidelines, notes, and papers.106 It has contributed to the development of customary international law.107 It assists in the development of national laws,108 and intervenes on occasion as amicus curiae in proceedings before national and regional courts.109 It also engages in the dissemination of refugee law.110 The UNHCR thus plays an intervening, advocacy, and advisory role.111 The protection policy and legal advice unit within the Department of International Protection plays an important part in this regard. 23.31  The UNHCR also undertakes refugee status determinations, even though they are primarily the responsibility of states. Its participation in refugee status determinations takes a number of forms, including sitting on a national status determination commission, advising or providing information to such a commission, or having a supervisory or an appeal function.112 Some states are unable or unwilling to carry (p. 901) out refugee status determinations; and in these states, the UNHCR takes on the role.113 However, refugee status determinations conducted by the UNHCR have not always operated smoothly,114 and do not always ensure access to a durable solution or to the respect by states or others of refugees’ rights. The UNHCR considers this to be one of its core protection functions, as refugee protection and the obligations of the UNHCR vis-à-vis certain individuals are

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contingent on their status as refugees. However, it also calls on states, as parties to refugee instruments, to assume their responsibility for the determinations.115

5.2.2  Permanent solutions 23.32  With respect to seeking durable116 solutions, the UNHCR aims to achieve its mandate ‘by assisting Governments and, subject to the approval of the Governments concerned, private organizations to facilitate the voluntary repatriation of such refugees, or their assimilation within new national communities’.117 A third solution, alongside that of repatriation and assimilation or ‘local integration’, is resettlement in a third state.118 Thus, there are three options in so far as durable solutions are concerned—voluntary repatriation to the country of origin; integration in the country of asylum; and resettlement in a third state—all of which are tied up with states’ immigration and asylum policies.119 23.33  Voluntary repatriation to the country of origin is generally considered ‘the most appropriate solution’ in the majority of refugee situations.120 The UNHCR facilitates (p. 902) or promotes voluntary repatriation depending on the situation in the state of origin.121 It has also recognized that, in many situations, repatriation in and of itself will not suffice and that it will have to be coupled with efforts at reintegration, rehabilitation, and reconstruction; accordingly, the UNHCR has assisted in the process.122 23.34  In the context of large-scale voluntary repatriation, agreements are often concluded between the UNHCR, the host state, and the state of origin, which contain, inter alia, the conditions applicable to the repatriation, the duties of the relevant parties, and the rights of the refugees.123 However, voluntary repatriation is not without its difficulties.124 23.35  The rationale behind local integration as a durable solution is that, over time, the individual in question will be fully integrated in the country of asylum and be afforded rights that are ‘broadly commensurate’ with those of citizens of the state of asylum.125 (p. 903) There are legal, economic, social, and cultural dimensions to local integration, which are interrelated but also distinct.126 However, there has been reluctance on the part of certain states, particularly those that host large numbers of refugees, to allow local integration. 23.36  Resettlement involves the movement of refugees from the initial country of asylum to a third state for long-term or permanent settlement.127 At one time, it was viewed as subsidiary to voluntary repatriation and integration, and used as a last resort, when voluntary repatriation and local integration were not possible and resettlement was the only option to guarantee protection.128 The position has changed over time, with the UNHCR seeking to enhance the role of resettlement.129 In practice, it is often difficult to find states that are willing to take in refugees for resettlement.130 (p. 904) 23.37  Despite the effort invested in securing durable solutions, protracted refugee situations have increased over the years.131 23.38  In this context, in 2016 the UNHCR also sought proactively to encourage states to think beyond the three traditional durable solutions and examine ‘complementary pathways’ to solutions for refugees. These could include facilitated access to national labour migration schemes; assisted family reunification; and study visa programmes.132

5.2.3  Material assistance 23.39  At the time of its creation, the UNHCR was not envisaged to be an operational agency.133 However, almost from the outset, it undertook activities relating to material assistance on an ad hoc basis.134 Over time, the UNHCR began to provide material assistance to refugees and other displaced persons as a matter of course.135 This (p. 905) broadened the scope of the Office’s activities considerably and was a not uncontroversial

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development.136 Nonetheless, assistance and international protection are recognized to be linked.137

5.2.4  Administration of refugee camps 23.40  The UNHCR undertakes the administration of refugee camps. Although the state in which the refugee camp is located has the primary responsibility for the camp and its inhabitants, not infrequently the state delegates its administrative control to the UNHCR.138 The Office, in turn, contracts out the day-to-day running of the camp to its implementing partners, while retaining responsibility for protection matters.139 This has not been without its problems.140

6.  Funding 23.41  The UNHCR is funded primarily through voluntary contributions.141 Only ‘administrative expenditures relating to the functioning of the Office of the High Commissioner’ are borne from the UN regular budget.142 In practice, this has related to a (p. 906) contribution towards ‘headquarters costs’.143 Accordingly, the funding provided from the UN regular budget is only a fraction of the total UNHCR budget.144 This means that the UNHCR is almost entirely reliant on voluntary funding.145 Most of the voluntary funding is provided by a small group of states.146 A certain amount of funding is also received from the private sector,147 including corporations, charitable foundations, and individuals.148 Other entities provide contributions in (p. 907) kind.149 Funding is also provided by intergovernmental organizations as well as UN entities.150 A significant proportion of voluntary contributions is earmarked by the contributing entity, thus removing the discretion of the UNHCR.151 The uncertain nature of the funding means that the UNHCR has to exercise caution in committing to long-term projects in case the required funding does not materialize. It also has to devote considerable time and resources to fundraising, which could otherwise be spent on the functions with which it has been tasked.

Footnotes: 1

  The idea of an office of a High Commissioner for Refugees has a long history, dating back to the time of the League of Nations. In 1921, the Council of the League of Nations created the position of High Commissioner for Russian Refugees, a position held by Dr Fridtjof Nansen. The High Commissioner was tasked, inter alia, with defining the concept of the Russian refugee and providing refugees with relief. During the same period, refugees from other countries also benefitted from League of Nations support. See Grahl-Madsen, The Status of Refugees in International Law, I: Refugee Character (1966), 125–33; Skran, ‘Historical Development of International Refugee Law’ in The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (ed Zimmerman, 2011), 7–14. Following the death of Nansen in 1930, various bodies were created to provide assistance to refugees, the most prominent of which were the Intergovernmental Committee on Refugees and the United Nations Relief and Rehabilitation Administration (UNRRA). Both bodies ceased to exist in 1947. See Haslam, ‘United Nations Relief and Rehabilitation Administration (UNRRA)’ in the Max Planck Encyclopedia of Public International Law (MPEPIL) (online); Woodbridge, UNRRA: The History of the United Nations Relief and Rehabilitation Administration (1950). The United Nations Relief and Rehabilitation Administration should not be confused with the United Nations that is the subject of this book. Following the creation of the UN, the General Assembly established the International Refugee Organization, upon the recommendation of the United Nations Economic and Social Council (ECOSOC) (GA Res 62 (I) (1946)). The International Refugee Organization itself ceased to exist in 1952 following the creation of the UNHCR. On the International Refugee Organization, see Holborn, The International Refugee Organization (1956); Einarsen, ‘Drafting History of the 1951 Convention and the 1967 Protocol’ in Zimmerman (ed), above,

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45–7; Melander, ‘International Refugee Organization (IRO)’ in MPEPIL (online); Schmal, ‘Article 1A, para 1 (Definition of the Term “Refugee”)’ in Zimmerman (ed), above, 272–9. On the position prior to the creation of UNHCR, see Weis, ‘The International Protection of Refugees’ (1954) 48 AJIL 193; Skran, Refugees in Inter-War Europe: The Emergence of a Regime (1995); Grahl-Madsen, above, 17–18; Einarsen, ‘Drafting History of the 1951 Convention and the 1967 Protocol’ in Zimmerman (ed), above, 43–7; Schmal, ‘Article 1A, para 1 (Definition of the Term “Refugee”)’ in Zimmerman (ed), above, 247; Hathaway, ‘The Evolution of Refugee Status in International Law: 1920–1950’ (1984) 33 ICLQ 348; Holborn, Refugees: A Problem of Our Time, The Work of the United Nations High Commissioner for Refugees, 1951–1972 (vol I, 1975), pt I; Holborn, ‘The Legal Status of Political Refugees, 1920–1938’ (1938) 32 AJIL 680; Jennings, ‘Some International Law Aspects of the Refugee Question (1939) 20 BYIL 98; Loescher, The UNHCR and World Politics (2001), ch 2; Goodwin-Gill and McAdam, The Refugee in International Law (2007), 421–5; Loescher, Betts, and Milner, The United Nations High Commissioner for Refugees (2008), 7–10; Lewis, UNHCR and International Refugee Law (2012), 1–12. 2

  The Resolution was adopted by 36 votes to 5, with 11 abstentions. The General Assembly had previously indicated its intention to establish a ‘High Commissioner’s Office for Refugees’. See GA Res 319A (IV) (1949). Accordingly, some date the creation of the UNHCR to 1949. In GA Res 319A (IV), the General Assembly recognized that the ‘problem of refugees’ was international in scope and that the UN had a responsibility in relation to the international protection of refugees. However, concern for refugees was not entirely altruistic; refugees were also part of inter-state political rivalries and affected by the thenexisting global power dynamics. See Loescher, n 1, 6–8. 3

  Statute of the UNHCR, Art 5, annexed to GA Res 428 (V) (1950). See also GA Res 319A (IV) (1949). This was due to the UNHCR’s being conceived of as an entity that would work on the issue of displacement in Europe resulting from the Second World War. See para 23.18. 4

  See, eg, GA Res 727 (VIII) (1953). As the High Commissioner noted, ‘[t]he drafting of these resolutions and the process leading to their adoption became routine’. Report by the High Commissioner to the General Assembly on strengthening the capacity of the Office of the High Commissioner for Refugees to carry out its mandate, UN Doc A/AC.96/980 (2003), para 13. 5

  GA Res 58/153 (2004). This followed a request by the High Commissioner, in 2003, for the removal of the five-year period. The High Commissioner noted: ‘Removing the time limitation would amount to a clear recognition that there is no end yet in sight to the refugee problem. It would facilitate strategic planning and the development of long-term policies on refugee protection, particularly with regard to protracted refugee situations. It would also open up possibilities of improving multi-year programming, to address these situations more comprehensively.’ Report by the High Commissioner, n 4, para 15. Some commentators have observed that the uncertain temporal limitation of the UNHCR prior to 2004 impeded its ability to engage in long-term activities (Loescher, Betts, and Milner, n 1, 75). 6

  See ch 6, ‘Subsidiary Organs’.

7

  Statute of the UNHCR, Arts 1 and 3. In practice, ECOSOC resolutions have rarely directed the UNHCR to undertake specific activities; instead, they recognize the UNHCR’s work or request information from it (Lewis, n 1, 52).

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8

  It has been suggested that, ‘in many ways, UNHCR more closely resembles a specialized agency than an organ of the General Assembly’ (Feller and Klug, ‘Refugees, United Nations High Commissioner for (UNHCR)’ in MPEPIL (online), para 12). 9

  Statute of the UNHCR, Art 13.

10

  Art 11 of the Statute provided that this would be done through ECOSOC. However, in practice, the UNHCR submits its report directly to the General Assembly (see Lewis, n 1, 13). In GA Res 58/153 (2004), the General Assembly decided that, in addition to its annual reports to the General Assembly, the UNHCR should also report orally on an annual basis to ECOSOC. In addition, every 10 years, the annual report to the General Assembly is to include ‘a strategic review of the global situation of refugees and the role of the Office, prepared in consultation with the Secretary-General and the Executive Committee’. 11

  Statute of the UNHCR, Art 12.

12

  Report of the United Nations High Commissioner for Refugees, UN Doc A/65/12 (2010), paras 61–2. The UNHCR and the WFP work together in the area of delivery of food to refugees. A Memorandum of Understanding between the two entities, concluded in 2002, was revised in 2010 to delineate more clearly the respective areas of responsibility. In 2016, the UNHCR and ILO signed a Memorandum of Understanding, building on an earlier Memorandum of Understanding signed in 1983. The UNHCR works with UNICEF on the issue of child protection and refugee children. The UNDP and the UNHCR work together in areas of common linkage, such as post-conflict reconstruction and the reintegration of returning refugees. The UNHCR and the World Health Organization (WHO) collaborate in a number of areas, including countering the outbreak of diseases in humanitarian settings, and improving health systems in response to refugee crises, particularly in Europe in 2015. The UNHCR also collaborates with the Joint United Nations Programme on HIV/AIDS, of which UNHCR is a co-sponsor. Further, the UNHCR has developed joint approaches in response to mixed movements of migrants and refugees with the IOM, particularly during crises in Europe and Yemen. This has included the creation of mixed migration task forces and joint strategies targeting human trafficking. See the various UNHCR Global Reports, eg UNHCR, Global Report 2015 (2016), 171. 13

  For example, during the armed conflicts in the former Yugoslavia, the High Commissioner chaired the Humanitarian Issues Working Group of the International Conference on the Former Yugoslavia. During the conflict, the UNHCR was made the lead agency to coordinate UN humanitarian action. See Further Report of the Secretary-General pursuant to Security Council Resolution 749 (1992), S/23900 (1992), para 16; Cunliffe and Pugh, ‘UNHCR as Leader in Humanitarian Assistance: A Triumph of Politics over Law?’ in Refugee Rights and Realities: Evolving International Concepts and Regimes (eds Nicholson and Twomey, 1999). This was not the first time that the High Commissioner was requested by the Secretary-General or the General Assembly to coordinate a humanitarian operation. The High Commissioner was requested to do so in respect of the population movement resulting from the creation of Bangladesh in 1971. See Aga Khan, ‘Legal Problems Related to Refugees and Displaced Persons’ (1976) 149 RCADI 287, 345. In the following years, the General Assembly reiterated the cooperation and participation of the UNHCR in humanitarian endeavours ‘for which [the] Office has particular expertise and experience’ (GA Res 2956A (XXVII) (1972)). See also GA Res 3143 (XXVIII) (1973); GA Res 3271A (XXIX) (1974). For a historical consideration of the issue, see Holborn, Refugees: A Problem of Our Time, n 1, 111–28. 14

  The IASC is an inter-agency committee for the coordination of humanitarian assistance, comprising UN entities such as the UNHCR, UNDP, and UNICEF, as well as non-UN entities such as InterAction and the International Council of Voluntary Agencies, and standing invitees such as the International Committee of the Red Cross (ICRC). It was created

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pursuant to GA Res 46/182 (1991). See also GA Res 48/57 (1993); IASC Terms of Reference (1998); see at https://interagencystandingcommittee.org/and para 21.14. 15

  See Ingram, ‘The Future Architecture for International Humanitarian Assistance’ in Humanitarianism Across Borders: Sustaining Civilians in Time of War (eds Weiss and Minear, 1993); Loescher, Betts, and Milner, n 1, 85–9; Helton, The Price of Indifference (2002), 286. 16

  The Statute of the UNHCR provides that the High Commissioner shall administer funds for the assistance of refugees and provide them to agencies qualified to administer the assistance (Statute of the UNHCR, Art 10). This includes NGOs. Indeed, in 2015, ‘UNHCR entrusted USD 1.26 billion to 938 partners (584 national NGOs, 168 international NGOs, 172 governmental partners and 14 UN agencies) for 1,732 projects to provide protection and assistance to, and help find solutions for, people of concern. The funds channelled to partners represented 38 per cent of UNHCR’s annual expenditure (USD 3.3 billion).’ UNHCR, Global Report 2015 (2016), 172. See further Stavropoulou, ‘Protection: The Office of the United Nations High Commissioner for Refugees Experience’ in The Human Rights Field Operation: Law, Theory and Practice (ed O’Flaherty, 2007), 207, at 216–17. The contribution of NGOs was recognized in the Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, 13 December 2001, HCR/MMSP/2001/09. 17

  The 2015 event involved some 270 different NGOs, UN entities, and international organizations. See UNHCR, Global Report 2015 (2016), 172. 18

  ECOSOC Res 672 (XXV) (1958); GA Res 1166 (XII) (1957). As early as GA Res 319 (IV) (1949), the General Assembly indicated that ‘[m]eans should be provided whereby interested Governments, non-members of the United Nations, may be associated with the work of the High Commissioner’s Office’. The Statute of the UNHCR also envisaged the creation of an Advisory Committee. ECOSOC was to decide whether or not to establish such a committee after considering the views of the High Commissioner on the point. The Advisory Committee was intended to comprise representatives of states, both members and non-members of the UN, identified on the basis of their commitment to solving ‘the refugee problem’ (Statute of the UNHCR, Art 4). The Executive Committee replaced the United Nations Refugee Fund (UNREF) Executive Committee (GA Res 1166(XII) (1957)). The UNREF Executive Committee was established by ECOSOC at the request of the General Assembly (ECOSOC Res 565 (XIX) (1955); GA Res 832 (IX) (1954)). The UNREF Executive Committee in turn replaced the Advisory Committee on Refugees, which was established by ECOSOC in 1951. See ECOSOC Res 393 B (XIII) (1951). 19

  The Executive Committee was composed initially of 25 states. As at October 2016, it had expanded to 98 states. For further details concerning the UNHCR Executive Committee (EXCOM) membership over time, see ‘EXCOM) membership by admission of members’, available at http://www.unhcr.org/uk/excom/scaf/574c362c4/excom-membership.html. The Executive Committee also comprises standing observers, composed of states, UN bodies, intergovernmental organizations, certain other entities (Palestine; Sovereign Order of Malta), and NGOs. See, eg, Report of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees, UN Doc A/65/12/Add.1 (2010), paras 3–8. There are mixed views on the increased size of the Executive Committee. Some have expressed the view that the increase in numbers has made the Committee ‘cumbersome’ and that ‘many of the broad contours of international politics are reflected in ExCom deliberations’ (Loescher, Betts, and Milner, n 1, 77). By contrast, others have suggested that, while making consensus more difficult to achieve, the enlarged membership ‘has contributed to ExCom becoming an increasingly representative forum for discussions,

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dialogue, and exchange, covering a variety of perspectives and issues’ (Feller and Klug, n 8, para 28). 20

  ECOSOC Res 672 (XXV) (1958). Regard was also to be had for the geographical spread of states. 21

  GA Res 1166 (XII) (1957); ECOSOC Res 672 (XXV) (1958). The Executive Committee considers, inter alia, whether the budget is consistent with the Statute of the UNHCR, the other functions of the High Commissioner requested by the General Assembly, Security Council, and Secretary-General, and the Financial Rules for Voluntary Funds administered by the High Commissioner. See Report of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees, UN Doc A/65/12/Add.1 (2010), para 14. 22

  GA Res 1673 (XVI) (1961); GA Res 1783 (XVII) (1962).

23

  Feller and Klug, n 8, para 23. See also Goodwin-Gill, ‘Refugee Identity and Protection’s Fading Prospect’ in Nicholson and Twomey (eds), n 13. Loescher has described this as a threat to the independence of the Office. See Loescher, n 1, 350 and 376. 24

  GA Res 1166 (XII) (1957). As noted by Feller and Klug, n 8, para 22, the mandate of the Executive Committee has been ‘interpreted as providing ExCom with an advisory role on international protection of refugees’. 25

  Executive Committee of the High Commissioner’s Programme, Rules of Procedure, UN Doc A/AC.96/187/Rev.6 (2005). It usually meets at the level of Permanent Representatives of state missions to the UN in Geneva. 26

  See, eg, Report of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees, UN Doc A/64/12/Add.1 (2009). The reports contain a brief overview of the composition of the Executive Committee and its work during the course of the year, as well the Conclusions adopted by the Committee. On the latter, see n 27. 27

  The conclusions are usefully compiled in UNHCR, Conclusions Adopted by the Executive Committee on the International Protection of Refugees, 1975–2009 (Conclusions Nos 1– 109) and UNHCR, Thematic Compilation of Executive Committee Conclusions (2014). As noted by Feller and Klug, n 8, para 24, the Conclusions ‘address pertinent protection questions of a general or group specific nature. They not only provide policy guidance to UNHCR, but are also directly addressed to States.’ The UNHCR plays an influential role in the Conclusions, eg, selecting topics, providing the initial drafts of the Conclusions, and writing background papers. In recent years, member states have exercised more influence on topics and the preparation of the Conclusions than they did before. See Feller and Klug, n 8, para 27; Lewis, n 1, 54 and 67. 28

  Some of the Conclusions or the statements contained therein have been referred to and followed in judicial decisions. Other judicial decisions refer to them but do not follow them. Still others do not cite to the Conclusions at all. For the approach of courts to the Executive Committee Conclusions, see McAdam, ‘Interpretation of the 1951 Convention’ in Zimmerman (ed), n 1, 112–14. See also Deschamp, Review of the Use of UNHCR Executive Committee Conclusions on International Protection (9 June 2008). Regardless of the extent to which they have been followed, the Conclusions have been described as ‘elements relevant to the interpretation of the 1951 Convention’. See Lauterpacht and Bethlehem, ‘The Scope and Content of the Principle of Non-Refoulement: Opinion’ in Refugee Protection in International Law (eds Feller, Türk, and Nicholson, 2003), 98. On the Conclusions generally, see Sztucki, ‘The Conclusions on the International Protection of Refugees Adopted by the Executive Committee of the UNHCR Programme’ (1989) 1 IJRL 285.

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29

  The Conclusions influence the way in which ‘UNHCR exercises its international protection mandate and undertakes its advocacy activities with governments’ (Feller and Klug, n 8, para 26). See also Lewis, n 1, 53–4. 30

  The Standing Committee of the Whole was established in 1995. See Decision on Executive Committee Working Methods, in Report of the Forty-Sixth Session of the Executive Committee of the High Commissioner’s Programme, UN Doc A/AC.96/860 (1995), para 32. The Standing Committee replaced the Sub-Committee of the Whole on International Protection. The latter was created pursuant to Executive Committee Conclusion No 1, (XXVI) (1975). Pursuant to Conclusion No 1, the Sub-Committee of the Whole was mandated to study in detail ‘the more technical aspects of the protection of refugees’ and to report back to the Committee. It is designed to offer ‘practical guidance and clear advice’ to the High Commissioner. See Report of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees, UN Doc A/65/12/Add.1 (2010), para 15. In 2016, the Standing Committee met in March, June, and September. See Report of the Work of the Standing Committee: Report of the Secretariat, UN Doc A/AC. 96/1164 (2016), para 2. 31

  Goodwin-Gill and McAdam, n 1, 430. The 2016 Meetings of the Standing Committee considered a number of substantive issues in addition to management, financial control, administrative oversight, and human resources; and governance issues, including international protection, regional activities and global programmes, and programme/ protection policy. See Report on the Work of the Standing Committee, UN Doc A/AC. 96/1164, 4 October 2016. 32

  Statute of the UNHCR, Art 13. This selection process reflected a compromise between those states that wanted the High Commissioner to be appointed by the Secretary-General and those that wanted the High Commissioner to be elected by the General Assembly. A few controversies have arisen surrounding the appointment of the High Commissioner. The first High Commissioner was elected by the General Assembly by secret ballot, following the presentation of two possible candidates by the Secretary-General, his attempts to reach agreement on a single candidate having failed. Some decades later, another controversy arose surrounding the degree of consultation expected by states prior to the SecretaryGeneral’s nomination of a candidate. On the latter, see ‘United Nations High Commissioner for Refugees: Election or Appointment?’ (1991) 3 IJRL 121. 33

  Art 13 of the Statute provides: ‘The terms of appointment of the High Commissioner shall be proposed by the Secretary-General and approved by the General Assembly. The High Commissioner shall be elected for a term of three years, from 1 January 1951.’ In practice, the terms have varied considerably. For example, Sadako Ogata was elected as High Commissioner for a three-year term (GA Decision 45/319 (1990)). The term was extended for a period of five years (GA Decision 48/307 (1993)). Her term of office was extended again for a period of two years (GA Decision 53/305 (1998)). Ruud Lubbers was elected for a term of three years (GA Decision 55/310 (2000)). His term was extended for a period of two years (GA Decision 58/402 (2003)). Antonio Guterres was elected for a term of five years (GA Decision 59/420 (2005)). His term was extended for a second period of five years (GA Decision 64/419 (2010)). 34

  An analogy can be made to the position of UN Secretary-General, albeit in the specific context of refugees. 35

  For the views and experiences of various High Commissioners themselves, see van Heuven Goedhart, ‘The Problem of Refugees’ (1953-I) 82 RCADI 261; Aga Khan, n 13, 287; Hocké, ‘Beyond Humanitarianism: The Need for Political Will to Resolve Today’s Refugee Problem’ in Refugees and International Relations (eds Loescher and Monahan, 1989), 37; Hartling, ‘International Solidarity and the International Protection of Refugees’ in Congress on International Solidarity and Humanitarian Actions (ed International Institute of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Humanitarian Law, 1980), 237–243; Ogata, The Turbulent Decade: Confronting the Refugee Crises of the 1990s (2005). 36

  For changes to the UNHCR and its work during the tenure of the various High Commissioners, see Holborn, Refugees: A Problem of Our Time, n 1; Guest, ‘The United Nations, the UNHCR, and Refugee Protection: A Non-Specialist Analysis’ (1981) 3 IJRL 585; Loescher, n 1. 37

  Statute of the UNHCR, Art 13. The Deputy High Commissioner tends to be a national of the US. 38

  Feller and Klug, n 8, para 32, note that ‘[t]he Assistant High Commissioner for Operations is responsible for setting parameters for and oversight of global planning and implementation of major operations’, and the ‘Assistant High Commissioner for Protection has oversight over protection policy development, and ensures coherency and consistency in the integration of protection priorities into the management and delivery of operations’. 39

  Statute of the UNHCR, Art 16.

40

  See UNHCR Organizational Structure at 1 July 2015, in ‘Biennial programme budget 2016–2017 of the Office of the United Nations High Commissioner for Refugees: Report by the High Commissioner’, 25 August 2015, Annex VI. 41

  The structure and terminology change not infrequently.

42

  The services were previously known as pillars or streams. For a brief overview of the work of each aspect, see UNHCR, ‘Operational Support and Management’ in UNHCR Global Report 2013 (2014), 1–18. 43

  See http://www.unhcr.org/uk/figures-at-a-glance.html.

44

  Other high-profile individuals support the UNHCR through other means, such as by fundraising and raising awareness. On the appointment of such persons, see the Guidelines for the Designation of Goodwill Ambassadors and Messengers of Peace (2010). 45

  This is provided for in the Statute. See Statute of the UNHCR, Art 19.

46

  See http://www.unhcr.org/uk/where-we-work.html. For a pictorial representation of the various UNHCR field presences, see the maps in UNHCR, Global Report 2015 (2016), at 44–5. Field presences are established through the conclusion of cooperation agreements between the UNHCR and the state in question. See, eg, the UNHCR Model Cooperation Agreement, MNW24/10/01. See generally Zieck, UNHCR’s Worldwide Presence in the Field: A Legal Analysis of UNHCR’s Cooperation Agreements (2006). Field presences monitor the local situation and report back to Headquarters, and implement the protection and assistance policies. They consist of a mixture of local and international staff. On UNHCR field presences, see Stavropoulou, n 16, 217–18. Tensions sometimes result between field offices and Headquarters in relation to reporting obligations and the numbers of policies, guidelines, and directives that are required to be implemented. See Loescher, Betts, and Milner, n 1, 83. 47

  The New York office is the UNHCR’s link to UN Headquarters in New York and states missions to UN Headquarters. The liaison office thus, inter alia, raises refugee issues and feeds the views of the UNHCR into various meetings at Headquarters. 48

  See, in particular, Arts 1, 8, and 9 of the Statute. However, the Statute itself does not use the term ‘mandate’; instead, it uses the terms ‘functions’, ‘work’, and ‘competence’. See Aleinikoff, ‘The Mandate of the Office of the United Nations High Commissioner for

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Refugees’ in Research Handbook on International Law and Migration (eds Chetail and Bauloz, 2014), 390. 49

  See, in particular, Art 35 of the Convention and Art II of the Protocol.

50

  Regional refugee instruments have established a link to the High Commissioner’s supervisory function as regards the application of the provisions of the instruments. See, eg, Organization of African Unity, Convention Governing the Specific Aspects of Refugee Problems in Africa (1969), Art VIII; Cartagena Declaration on Refugees (1985), Recommendation (e). Art 8 of the Statute of the UNHCR provides that ‘[t]he High Commissioner shall provide for the protection of refugees falling under the competence of his Office by: (a) Promoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto’. See UNHCR, Note on the Mandate of the High Commissioner for Refugees and his Office, Division of International Protection, October 2013, 6–7. 51

  See Convention on the Reduction of Statelessness, Art 11, together with GA Res 3274 (XXIX) (1974) and GA Res 31/36 (1976). 52

  Art 9 of the Statute of the UNHCR provides that ‘the High Commissioner shall engage in such additional activities … as the General Assembly may determine, within the limits of the resources placed at his disposal’. 53

  Statute of the UNHCR, Art 2.

54

  Despite the requirement in the Statute as to the entirely non-political character of the work of the UNHCR, its work is, in part, subject to politics. Its work may be directed by the General Assembly, which is a political organ of the UN. Its funding, primarily by a core group of states, might affect the tasks it carries out, particularly when donated funds are earmarked for particular projects. See section 6, ‘Funding’. The Executive Committee, which consists of states, has an input in the direction of the UNHCR, again potentially affecting the political character of the UNHCR’s work. The UNHCR relies on the cooperation of states, the actions of some of which may have given rise to the very refugee flows that the Office is addressing. On some of the tensions within the non-political mandate of the UNHCR, see Palley, ‘Legal Issues Arising from Conflicts between UN Humanitarian and Political Mandates—a Survey’ in The Problem of Refugees in the Light of Contemporary International Law Issues (ed Gowlland-Debbas, 1996), 145, at 153–5; Goodwin-Gill, n 23; Forsythe, ‘UNHCR’s Mandate: The Politics of Being Non-Political’, UNHCR Working Paper No 33 (2001). The mandate of the UNHCR also extends beyond refugees alone and includes stateless persons and internally displaced persons. See section 5.1, ‘Persons within the UNHCR’s mandate’. 55

  This temporal limitation was effectively removed by virtue of Arts 1 and 2 of the Protocol relating to the Status of Refugees. See para 23.20. 56

  Art 6 of the Statute provides:

The competence of the High Commissioner shall extend to: A(i)  Any person who has been considered a refugee under the Arrangements of 12 May 1926 and of 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization. (ii)  Any person who, as a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality or political opinion, is outside the country of his nationality and is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside

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the country of his former habitual residence, is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to return to it. … B  Any other person who is outside the country of his nationality, or if he has no nationality, the country of his former habitual residence, because he has or had wellfounded fear of persecution by reason of his race, religion, nationality or political opinion and is unable or, because of such fear, is unwilling to avail himself of the protection of the government of the country of his nationality, or, if he has no nationality, to return to the country of his former habitual residence. Pursuant to Art 6A of the Statute, the competence of the High Commissioner ceases to apply in respect of persons defined in s A in the following circumstances: (a)  he has voluntarily re-availed himself of the protection of the country of his nationality; or (b)  having lost his nationality, he has voluntarily re-acquired it; or (c)  he has acquired a new nationality, and enjoys the protection of the country of his new nationality; or (d)  he has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or (e)  he can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, claim grounds other than those of personal convenience for continuing to refuse to avail himself of the protection of the country of his nationality. Reasons of a purely economic character may not be invoked; or (f)  being a person who has no nationality, he can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist and he is able to return to the country of his former habitual residence, claim grounds other than those of personal convenience for continuing to refuse to return to that country. 57

  Art 7 refers to any person: (a)  who is a national of more than one country unless he satisfies the provisions of the preceding paragraph in relation to each of the countries of which he is a national; or (b)  who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country; or (c)  who continues to receive from other organs or agencies of the United Nations protection or assistance; or (d)  in respect of whom there are serious reasons for considering that he has committed a crime covered by the provisions of treaties of extradition or a crime mentioned in article VI of the London Charter of the International Military Tribunal or by the provisions of article 14, paragraph 2, of the Universal Declaration of Human Rights.

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See also Refugee Convention, Art 1D, E, and F. Art 7(c) of the Statute of the UNHCR and Art 1D of the Refugee Convention acknowledge the existence and functions of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), which was established by GA Res 302 (IV) (1949). 58

  Art 1A(1) of the Refugee Convention is largely the same as Art 6A(i) of the UNHCR Statute. Art 1A(2) of the Refugee Convention is largely the same as Art 6B of the UNHCR Statute. On the notion of a ‘refugee’, see various in Zimmerman (ed), n 1, 247–610; GrahlMadsen, n 1; Hathaway, The Law of Refugee Status (1991); Goodwin-Gill and McAdam, n 1, chs 3 and 4; UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (reissued 2011). 59

  Goodwin-Gill and McAdam, n 1, 36, note that this ‘makes little practical difference in the respective areas of competence of UNHCR and States parties to the Convention’. 60

  There is a further difference, in that Art 1F of the Refugee Convention provides:

The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a)  He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b)  He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; He has been guilty of acts contrary to the purposes and principles of the United Nations. 61

  See, eg, GA Res 2198 (XXI) (1966). The limitations were recognized even by the Conference of Plenipotentiaries. The Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, in Recommendation E, provided: ‘The Conference expresses the hope that the Convention relating to the Status of Refugees will have value as an example exceeding its contractual scope and that all nations will be guided by it in granting so far as possible to persons in their territory as refugees and who would not be covered by the terms of the Convention, the treatment for which it provides.’ 62

  The principal purpose of the Protocol was the removal of the limitations of the Refugee Convention. See Weis, ‘The 1967 Protocol Relating to the Status of Refugees and Some Questions of the Law of Treaties’ (1967) 42 BYIL 39; Einarsen, ‘Drafting History of the 1951 Convention and the 1967 Protocol’ in Zimmerman (ed), n 1, 69. As a matter of the law of treaties, the removal of the geographical and temporal limitations arises only in respect of states that are parties to the two Conventions. However, in practice, as of October 2016, only two states that were parties to the 1951 Convention were not parties to the 1967 Protocol (Madagascar, and St Kitts and Nevis). Three other states are parties to the 1967 Protocol but not to the 1951 Convention (Cape Verde, the US, and Venezuela), and in respect of them the broader definition applies. 63

  See, eg, GA Res 1167 (XII) (1957). GA Res 1388 (XIV) (1959) authorized ‘the High Commissioner, in respect of refugees who do not come with the competence of the United Nations, to use his good offices in the transmission of contributions designed to provide assistance to these refugees’. Likewise, in GA Res 1673 (XVI) (1961), the High Commissioner was requested to ‘pursue his activities on behalf of the refugees within his mandate or those for whom he extends his good offices’. This followed a request from High Commissioner Felix Schnyder. See Loescher, n 1, 111–14. On many occasions since, the General Assembly has not distinguished between refugees within the mandate of the

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UNHCR and refugees to whom the High Commissioner would extend his good offices. Rather, it simply referred to refugees within the ‘competence’ of the High Commissioner, ‘persons of concern to the Office’, and ‘persons who require international protection’. See Feller and Klug, n 8, para 47. As indicated in the UNHCR Note on the Mandate of the High Commissioner for Refugees and his Office, Division of International Protection, October 2013, 3: ‘The repeated requirement or subsequent endorsement by the GA that the High Commissioner and his Office undertake certain responsibilities for protecting and assisting specific categories of persons elaborates upon and gives substance to the Office’s general mandate covering such persons.’ By 1992, the UNHCR Note on International Protection read ‘it is clear that, with protection at the core of UNHCR’s mandate, displacement, coupled with the need for protection, is the basis of UNHCR’s competence for the groups’. This was approved by the Executive Committee. See respectively, ‘Note on International Protection’, UN Doc A/AC.96/799 (1992); Executive Committee Conclusion No 68 (XLIII) (1992). See also Goodwin-Gill and McAdam, n 1, 24–32. 64

  For example, in GA Res 49/169 (1994), the General Assembly calls upon states ‘to assist and support the High Commissioner’s efforts to continue to provide international protection and assistance … to persons who have been forced to flee or to remain outside their countries of origin as a result of danger to their life or freedom owing to situations of conflict’. See also GA Res 34/61 (1979); Executive Committee Conclusion No 22 (XXXII) (1981); UNHCR, Note on International Protection, UN Doc A/AC.96/593 (31 July 1981), para 17. See further Aleinikoff, n 48, 395–6. 65

  UNHCR Guidelines on International Protection, No 12: Claims for refugee status related to situations of armed conflict and violence under Article 1(A)(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees and the regional refugee definitions, HCR/GIP/16/12, 2 December 2016. 66

  The UNHCR’s competence in respect of such persons was originally thought to cease once the individual returned to his/her country of origin. Over time, however, it was recognized that the UNHCR’s mandate extended to monitoring the treatment of such persons and assisting with reintegration efforts. In EXCOM Conclusion No 40 (XXXVI) (1985), the Executive Committee noted that ‘the High Commissioner should be recognized as having a legitimate concern for the consequences of return … . Within the framework of close consultations with the State concerned, he should be given direct and unhindered access to returnees so that he is in a position to monitor fulfilment of the amnesties, guarantees or assurances on the basis of which the refugees have returned. This should be considered as inherent in his mandate.’ EXCOM Conclusion No 40 was endorsed by the General Assembly in GA Res 40/118 (1985). See also, eg, GA Res 49/169 (1994), in which the General Assembly ‘calls upon the High Commissioner, in cooperation with States concerned, to promote, facilitate and coordinate the voluntary repatriation of refugees, including the monitoring of their safety and well-being on return’; and Executive Committee Conclusion Nos 74 (XLV) (1994) and 101 (LV) (2004). 67

  The situation of asylum-seekers is, in part, contemplated by Art 31 of the 1951 Refugee Convention as regards their treatment when they have entered a country without authorization and their situation has not yet been regularized. However, the UNHCR maintains that the fundamental principle of non-refoulement must be observed in respect of asylum-seekers, and that asylum-seekers must be entitled to contact the UNHCR, which ‘shall be given the possibility of exercising its function of international protection and shall be allowed to supervise the well-being of persons entering reception or other refugee centres’. See Executive Committee Conclusion No 22 (XXXII) (1981). See also Executive Committee Conclusion No 71 (XLIV) General (1993) as to temporary protection for asylumseekers; Executive Committee Conclusion No 85 (XLIX) (1998) as to the standards applicable to transferring asylum-seekers whose claims have yet to be determined from the state in which the claim was submitted to a third country; and GA Res 36/125 (1981), in From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

which the General Assembly urges governments to support the High Commissioner’s efforts by ‘protecting asylum-seekers in situations of large-scale influx’. UNHCR activities in respect of asylum-seekers include ‘promulgation of eligibility guidelines for applicants from particular countries of origin, advocacy for rights for asylum-seekers (such as workauthorization and limits on detention), capacity-building and quality assurance projects regarding state asylum procedures, the provision of legal assistance, connecting asylum applicants with lawyers and other support groups, contacting family members, and conducting best interest determinations for children’ (Aleinikoff, n 48, 398). 68

  Art 6(A)(ii) of the Statute of the UNHCR refers to a person ‘who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to return to it’. See also Refugee Convention (1951), Art 1(A)(2). On the UNHCR’s mandate in respect of stateless persons, see Seet, ‘The Origins of UNHCR’s Global Mandate on Statelessness’ (2016) 28 IJRL 7; Manly, ‘UNHCR’s Mandate and Activities to Address Statelessness’ in Nationality and Statelessness under International Law (eds Edwards and van Waas, 2014). 69

  Convention on the Reduction of Statelessness, Art 11. Pursuant to GA Res 3274 (XXIX) (1974), the UN body in question was provisionally the UNHCR. In GA Res 31/36 (1976), the UNHCR was requested to continue to carry out the relevant functions. On the drafting of the provision and the history behind the designation of UNHCR, see Batchelor, ‘Stateless Persons: Some Gaps in International Protection’ (1995) 7 IJRL 232. 70

  In GA Res 50/152 (1996), the General Assembly encouraged the High Commissioner to ‘continue her activities on behalf of stateless persons, as part of her statutory function of providing international protection and of seeking preventive action, as well as her responsibilities under’ certain General Assembly resolutions. The General Assembly also requested the Office of the High Commissioner ‘to promote accession to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the reduction of statelessness as well as to provide relevant technical and advisory services pertaining to the preparation and implementation of nationality legislation to interested States’. This followed Executive Committee, Conclusion No 78 (XLVI) (1995). In GA Res 61/137 (2006), the General Assembly noted ‘the work of the High Commissioner in regard to identifying stateless persons, preventing and reducing statelessness, and protecting stateless persons, and urge[d] the Office of the High Commissioner to continue to work in this area in accordance with relevant General Assembly resolutions and Executive Committee conclusions’. See Executive Committee, Conclusion No 106 (LVII) (2006). 71

  GA Res 50/152 (1996). See also Executive Committee, Conclusion No 78 (XLVI) (1995).

72

  The Resolution has thus been described as establishing ‘a truly global mandate for UNHCR on statelessness’ (Manly, n 68, 89). 73

  In Conclusion No 106 (LVII) (2006), the Executive Committee called upon the UNHCR, inter alia, ‘to engage in or to renew efforts to identify stateless populations and populations with undetermined nationality’, to share research relating to stateless persons, to report to the Executive Committee on the work undertaken with respect to stateless persons, to provide technical advice and support to states on the subject, to disseminate information to states, and to train state officials on issues relating to stateless persons. See also Executive Committee Conclusions Nos 50 (XXXIX) (1988), 65 (XLII) (1991), and 68 (XLIII) (1992). 74

  On the work of UNHCR in this context, see UNHCR, ‘UNHCR Action to Address Statelessness: A Strategy Note’ (2010) 22 IJRL 297; ‘Note on International Protection: Addendum, Note on Statelessness: Report of the High Commissioner’, UN Doc A/AC/ 96/1098/Add.1 (2011); UNHCR, Global Action Plan to End Statelessness 2014–2024 (November, 2014). See also Batchelor, ‘UNHCR and Issues Related to Nationality’ (1995) 14 RSQ 91; Darling, ‘Protection of Stateless Persons in International Asylum and Refugee

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Law’ (2009) 21 IJRL 742; van Krieken, ‘The High Commissioner for Refugees and Stateless Persons’ (1979) 26 NILR 24; Manly, n 68. 75

  See Guidelines on Statelessness No 1: The definition of ‘Stateless Person’ in Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons, HCR/GS/12/01, 20 February 2012, 1. 76

  Prior to this time, the UNHCR engaged in activities vis-à-vis internally displaced persons on an ad hoc basis. A UNHCR study refers to its involvement with internally displaced persons in a number of situations, including Bangladesh (1971), South Sudan (1972), Angola (1974), Guinea-Bissau (1974), Mozambique (1974), Indochina (1975), Ethiopia (1979), Uganda (1979), Zimbabwe (1980), Chad (1981), Nicaragua (1987), and Sri Lanka (1988). UNHCR, UNHCR’s Operational Experience with Internally Displaced Persons (1994). During this period, resolutions of ECOSOC and the General Assembly referred to the UNHCR’s work with internally displaced persons. See, eg, ECOSOC Res 1655 (LII) (1972); ECOSOC Res 1705 (LIII) (1972); GA Res 2958 (XXVII) (1972); GA Res 32/68 (1977). In the last of those resolutions, the General Assembly referred to ‘the outstanding work which has been performed by the Office of the High Commissioner in providing international protection and material assistance to refugees and displaced persons as well as in promoting permanent solutions to their problems’. See further Goodwin-Gill and McAdam, n 1, 26–9; Loescher, Betts, and Milner, n 1, 106–7. In the 1990s, there was a renewed attempt to reinforce the protection of internally displaced persons in international law. See, in particular, the drafting of the Guiding Principles on Internal Displacement. On which, see Kälin, Guiding Principles on Internal Displacement: Annotations (2008); Phuong, The International Protection of Internally Displaced Persons (2004). There was also a push for the UNHCR to play a leading role in this regard. See, eg, GA Res 53/125 (1999). See also the statements of the US Ambassador to the UN, Richard Holbrooke, in March 2000, reproduced in Helton, n 15, 127–30; and the statement of High Commissioner Sadako Ogata, reproduced in Nanda, ‘Comments on: The Legal Basis of International Jurisdiction to Act with Regard to the Internally Displaced’ in Gowlland-Debbas (ed), n 54, 138–9. 77

  In GA Res 47/105 (1992), the General Assembly welcomed ‘efforts by the High Commissioner, on the basis of specific requests from the Secretary-General or the competent principal organs of the United Nations and with the consent of the concerned State, to undertake activities in favour of internally displaced persons, taking into account the complementarities of the mandates and expertise of other relevant organizations’. One year later, in GA Res 48/116 (1993), the General Assembly reaffirmed its ‘support for the High Commissioner’s efforts, on the basis of specific requests from the Secretary-General or the competent principal organs of the United Nations and with the consent of the concerned State, and taking into account the complementarities of the mandates and expertise of other relevant organizations, to provide humanitarian assistance and protection to persons displaced within their own country in specific situations calling for the Office’s particular expertise, especially where such efforts could contribute to the prevention or solution of refugee problems’. 78

  GA Res 47/105 (1992) and GA Res 48/116 (1993), and amended by GA Res 51/75 (1996). GA Res 47/105 and GA Res 48/116, unlike GA Res 51/75 (1996), referred to a request on the part of the ‘principal’ UN organs. GA Res 48/116 also referred to ‘specific situations calling for the Office’s particular expertise, especially where such efforts could contribute to the prevention or solution of refugee problems’. See also Executive Committee in Conclusion No 75 (XLV) (1994). See further Phuong, n 76, 82–3. 79

  GA Res 49/169 (1994); GA Res 51/75 (1996).

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80

  GA Res 61/137 (2006).

81

  Feller and Klug, n 8, para 58. The UNHCR also has regard to whether or not there is a ‘link’ between the situation of internal displacement and its mandate activities, eg if there is a mixed population of returnees and internally displaced persons, or where internally displaced persons have a preventive or containing impact on refugee flows. See UNHCR, UNHCR’s Role in Support of an Enhanced Humanitarian Response to Situations of Internal Displacement: Policy Framework and Implementation Strategy, EC/58/SC/CRP.18 (2007), para 17. On the UNHCR’s mitigation strategies in respect of internally displaced persons, see UNHCR, The Protection of Internally Displaced Persons and the Role of the UNHCR (2007), paras 34–51. See also Ogata, ‘Keynote Address’ in Gowlland-Debbas (ed), n 54, xxi. 82

  The assignment was approved by the Executive Committee (Conclusion No 102 (LVI) (2005)). The UNHCR may also assume the lead protection role with respect of non-conflictrelated internally displaced persons if it is requested to do so, such as with respect to the floods in Pakistan in 2010 (Aleinikoff, n 48, 408–9). On clusters, see ch 21, ‘Disaster Relief’. On UNHCR involvement in the cluster system, see UNHCR, UNHCR’s Role in Support of an Enhanced Humanitarian Response to Situations of Internal Displacement: Update on UNHCR’s Leadership Role within the Cluster Approach and IDP Operational Workplans (May 2007). As noted by Feller and Klug, n 8, para 61: ‘The cluster arrangement does not formally change UNHCR’s mandate. Rather, it rationalizes the way that UN agencies work together and promotes a more coherent, consistent and predictable response. The assumption of cluster responsibilities is expected to lead to a significant increase in UNHCR engagement in IDP situations. Over the long-term, this may impact on the identity of the Office.’ 83

  Loescher, Betts, and Milner, n 1, 106, note: ‘From an initially very ad hoc and selective approach, IDP protection has become an increasingly central and systematic part of UNHCR’s work.’ 84

  See, eg, Cohen, ‘Strengthening Protection of IDPs: The UN’s Role’ (2006) 7 Georgetown Journal of International Affairs 101; Goodwin-Gill, n 23, 245–6; Phuong, n 76, 84–92. 85

  Statute of the Office of the United Nations High Commissioner for Refugees, Article 1.

On the expansion of the competence ratione personae beyond refugees alone, see 23.22 and 23.23, above. 86

  Statute of the UNHCR, Art 1. In the discussions leading up to the creation of the UNHCR, it was apparent that states had different views as to the role of the intended entity. Certain states, in particular the US, wanted an entity with limited functions and that focused on legal protection. Likewise, the UK took the view that refugees were primarily the concern of the relevant host state. Other states, primarily France, preferred the entity to have an operational mandate. Still other states, primarily India and Pakistan, wanted the entity to have broader functions and to provide relief assistance. See Loescher, n 1, 43–5. The Statute, as adopted, primarily reflects the views of the US and the UK. Over time, the UNHCR has provided activities akin to that wished for by states such as India and Pakistan, in particular providing relief and assistance. See section 5.2.3, ‘Material assistance’. Due to the temporal limits of the UNHCR, the limited mandate, and the precarious funding model, it has been said that ‘[n]o international organization has had such an unpromising beginning’ (Loescher, n 1, 50). 87

  See, eg, Goodwin-Gill and McAdam, n 1, 426. Furthermore, the international protection component of the mandate encompasses, in certain respects, the permanent solutions component. Art 8 of the Statute of the UNHCR, on protection, includes the following activities of the UNHCR: ‘Assisting governmental and private efforts to promote voluntary repatriation or assimilation within new national communities’ and ‘Promoting the admission

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of refugees, not excluding those in the most destitute categories, to the territories of States’. 88

  For example, two High Commissioners (Jean-Pierre Hocké and Sadako Ogata) prioritized repatriation. See Hocké, n 35, 37; Loescher, Betts, and Milner, n 1, 37–8 and 48–9. See further, on the downgrading of the international protection function, Goodwin-Gill , n 23, 235–7, and on the downgrading of the Division of International Protection, Anonymous, ‘The UNHCR Note on International Protection You Won’t See’ (1997) 9 IJRL 267 (later attributed to Arthur Helton: see Goodwin-Gill, ‘Arthur C Helton: 1949–2003’ (2003) 15 IJRL 354). 89

  Feller and Klug, n 8, para 68. The close connection between international protection and durable solutions is not infrequently stressed. See, eg, Executive Committee Conclusion No 50 (XXXIX) (1988), para (e). 90

  Statute of the UNHCR, Art 9. This was foreshadowed in GA Res 319 (IV) (1949).

91

  It has been said: ‘In the 1960s and 1970s … UNHCR became increasingly involved in refugee situations in the Third World. The 1980s saw it take on a growing role in providing assistance in refugee camps and shifting away from its traditional focus on legal protection. The 1990s saw it assume a wider role in providing humanitarian relief and engaging in repatriation operations. The late 1990s and early twenty-first century have seen UNHCR take on ever greater responsibility for the protection of internally displaced persons … who, unlike refugees, have not crossed an international border’ (Loescher, Betts, and Milner, n 1, 3). The broadened role is also apparent from the title of the agenda item of the annual session of the General Assembly under which the reports of the UNHCR are considered. The agenda item of the 66th session of the General Assembly is entitled ‘Report of the United Nations High Commissioner for Refugees, questions relating to refugees, returnees and displaced persons and humanitarian questions’ (UN Doc A/66/250 (2011)). 92

  See generally, Goodwin-Gill, n 23; Cunliffe and Pugh, n 13; Hathaway, ‘New Directions to Avoid Hard Problems: The Distortion of the Palliative Role of Refugee Protection’ (1995) 8 JRS 288; Anonymous, n 88; Barutciski, ‘A Critical View on UNHCR’s Mandate Dilemmas’ (2002) 14 IJRL 365. 93

  EXCOM Conclusion No 95 (LIV) (2003). The notion of international protection has been described in various ways. For example, in its 2011 Note on International Protection, Report of the High Commissioner, UN Doc A/AC.96/1098 (2011), para 3, the UNHCR described it as ‘ensuring that the range of rights and needs of people who are not protected by their own country are met’. In GA Res 65/194 (2010), the General Assembly emphasized that it includes ‘the promotion and facilitation of, inter alia, the admission, reception and treatment of refugees in accordance with internationally agreed standards and the ensuring of durable, protection-oriented solutions, bearing in mind the particular needs of vulnerable groups and paying special attention to those with specific needs’. Aleinikoff, n 48, 399, has noted that ‘[i]n UNHCR’s founding documents, the concept of protection focuses on legal rights of admission, recognition, and solutions. … This was consistent with the original understanding of UNHCR ensuring the provision of “surrogate” or “substitute” protection for persons not able to rely on their countries of origin to do so. Over the years, the modalities of protection have expanded dramatically … UNHCR’s description of protection has at times merged into assistance activities, such as provision of emergency shelter, food and medical care’ (footnotes omitted). On the notion of international protection, see Kälin, ‘Supervising the 1951 Convention relating to the Status of Refugees: Article 35 and Beyond’ in Feller, Türk, and Nicholson (eds), n 28, 619–24; Goodwin-Gill, ‘The Language of Protection’ (1989) 1 IJRL 6; Helton, ‘What is Refugee Protection?’ (1990) 2 (Special Issue) IJRL 119; Goodwin-Gill and McAdam, n 1, 421 et seq.

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94

  Statute of the UNHCR, Art 8. It is not immediately apparent from the language of Art 8 whether the list of functions is illustrative or exhaustive. Subsequent practice of the UNHCR, to which states have consented, indicates that the list is illustrative. 95

  Note on International Protection, Report of the High Commissioner, UN Doc A/AC. 96/1098 (2011), para 3. Along similar lines, Feller and Klug, n 8, para 70, note: ‘The international protection of refugees begins with securing their admission to a safe country of asylum, and encompasses the granting of asylum and ensuring respect for their fundamental human rights, including the right not to be forcibly returned to a country where safety or survival is threatened (the principle of non-refoulement). It ends with the attainment of a durable solution.’ See also Lewis, n 1, 19–20. 96

  Holborn, Refugees: A Problem of Our Time, n 1, 100, notes that ‘from the beginning the practice of the UNHCR has been to ignore the obscurities of par. 8 [Art 8] and to rely instead on the broad phrasing of the paragraph and the general tenor of the Statute to support its contention that international protection should be interpreted broadly’. 97

  ‘Supervisory responsibility attempts to promote common understanding of rules and their application by states parties in a consistent manner through the actions of an entity different from the state—an entity that rises above national perspectives and seeks to reconcile competing interests.’ Türk, ‘The UNHCR’s Role in Supervising International Protection Standards in the Context of its Mandate’ in The UNHCR and the Supervision of International Refugee Law (ed Simeon, 2013), 41. The role of the UNHCR in supervising the application of refugee conventions is regularly stressed. See, eg, GA Res 52/103 (1997); EXCOM Conclusion No 77 (XLVI) (1995); EXCOM Conclusion No 81 (XLVII) (1997). On the UNHCR’s supervisory responsibility, see Kälin, n 93; Zieck, ‘Article 35 of the 1951 Convention/Article II of the 1967 Protocol’ in Zimmerman (ed), n 1, 1459; Türk, ‘UNHCR’s Supervisory Responsibility’ (2001) 14 RQDI 135. 98

  Türk, ‘The UNHCR’s Role in Supervising International Protection Standards’, n 97, 41, has suggested that ‘the UNHCR has an inherent (implied) competence to define and adopt such measures that are reasonably necessary in order to achieve the purpose of the international legal framework governing the protection of people of its concern’. Türk goes on to note (ibid, at 53) that ‘The lack of precision on how the UNHCR would implement its supervisory role has been turned into an advantage, since it did not circumscribe narrowly the powers of the institution but enabled it to develop them organically.’ 99

  These activities and others are ‘accepted’, even ‘expected by States’. See ‘Summary Conclusions: Supervisory Responsibility’ in Feller, Türk, and Nicholson (eds), n 28, 668–9. 100

  See, eg, Refugee Convention (1951), Art 35; Protocol relating to the Status of Refugees (1967), Art II; Convention Governing the Specific Aspects of Refugee Problems in Africa (1969), Art VIII; Cartegena Declaration on Refugees (1984), Recommendation II(e). See also Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, HCR/MMSP/2001/09, 13 December 2001. In that Declaration, states parties reaffirmed ‘the fundamental importance of UNHCR as the multilateral institution with the mandate to provide international protection to refugees and to promote durable solutions’, and recalled their ‘obligations as States Parties to cooperate with UNHCR in the exercise of its functions’. 101

  See Refugee Convention (1951), Arts 35(2) and 36.

102

  See Türk, ‘The Role of UNHCR in the Development of International Refugee Law’ in Nicholson and Twomey (eds), n 13; Lewis, ‘UNHCR’s Contribution to the Development of International Refugee Law: Its Foundations and Evolution’ (2005) 17 IJRL 67; Lewis, n 1.

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103

  Art 8(a) of the Statute of the UNHCR. The Executive Committee, inter alia, has recognized ‘the importance of developing standards of protection by maintaining a constant dialogue with Governments, non-governmental organizations and academic institutions and of filling lacunae in international refugee law’ (EXCOM Conclusion No 29 (XXXIV) (1983)). For its part, the UNHCR has argued that it has a ‘doctrinal responsibility to work for the progressive development of international refugee law. In essence, this function involves promoting, interpreting, safeguarding and developing the fundamental principles of refugee protection. The immediate goal is to strengthen international commitments to receive refugees, as well as to combat discrimination and negative practices jeopardizing refugees and to search for durable solutions to their problems which give prime importance to humanitarian considerations and respect for basic rights. For the longer term, the objective is to develop and promote a far-reaching regime of refugee protection based on solid legal foundations and internationally recognized principles’ (UNHCR, Note on International Protection, UN Doc A/AC.96/728, 2 August 1989, para 3). 104

  The UNHCR played an influential role in the adoption of the 1967 Protocol. It sought to remove the temporal and geographical limitations of the 1951 Convention and, following the convening of a group of experts, suggested the conclusion of a protocol to the 1951 Convention. The proposal was confirmed by the Executive Committee, which recommended that the draft Protocol be submitted to the General Assembly through ECOSOC. ECOSOC took note of the proposal with approval, and the General Assembly took note of the Protocol. See ECOSOC Res 1186 (XLI) and GA Res 2198 (XXI) (1966). The Protocol was then transmitted to the Secretary-General for circulation to states. See Weis, n 62; Einarsen, n 62, 68–73; Türk, n 102. The UNHCR also played an influential role in the drafting of the 1957 Agreement relating to Refugee Seamen, the 1967 Declaration on Territorial Asylum, and an attempted Convention on Territorial Asylum. See Weis, ‘The United Nations Declaration on Territorial Asylum’ (1969) 7 Canadian YIL 92; Weis, ‘The Draft United Nations Convention on Territorial Asylum’ (1979) 50 BYIL 151; Türk, n 102; Lewis, n 1, 25–9. The UNHCR was also involved in the creation of regional instruments, such as the Convention Governing the Specific Aspects of Refugee Problems in Africa (1969), the Kampala Convention (2009), and the European Convention on Nationality (1997). See Feller and Klug, n 8, para 80; Lewis, n 1, 33–7. 105

  UNHCR staff in Geneva and in countries around the world have encouraged states to ratify or accede to the 1951 Convention and the 1967 Protocol. The UNHCR has also been ‘instrumental’ in the adoption of General Assembly resolutions and Executive Committee conclusions that encourage states to ratify or accede to the Convention and Protocol. It has further obtained the inclusion of the 1951 Convention and 1967 Protocol in the UN annual treaty event, which encourages ratification and accession to treaties (Lewis, n 1, 44 and 133). 106

  See, in particular, UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (1979, revised edn 1992); UNHCR, Guidelines on International Protection, Nos 1– 11 (2002–2015). Both sets of documents were issued at the request of the Executive Committee. See Executive Committee Conclusion No 8 (XXVIII) (1977) and Agenda for Protection, UN Doc A/AC./96/965/Add.1 (2002). The Guidelines explicitly note that they are ‘intended to provide legal interpretative guidance for governments, legal practitioners, decision-makers and the judiciary, as well as UNHCR staff carrying out refugee status determinations in the field’. The Handbook notes that it is ‘is meant for the guidance of government officials concerned with the determination of refugee status in the various Contracting States’. Both the Handbook and the Guidelines are considered influential in certain jurisdictions, while given less weight in others. On the Handbook and the Guidelines, see Hathaway, The Rights of Refugees under International Law (2005), 114–8;

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McAdam, n 28, 110–14. On the UNHCR’s work in this regard more broadly, see Lewis, n 1, 60–73. 107

  The UNHCR’s position on the non-refoulement obligation of states, expressed in its Notes on International Protection, influenced states’ views on the subject. The Executive Committee regularly noted with concern violations of the principle, and reaffirmed its fundamental importance. See, eg, Conclusion No 44 (XXXVII) (1986) and Conclusion No 46 (XXXVIII) (1987). In the 2001 Declaration of States Parties, states parties indicated that the non-refoulement principle is ‘embedded in customary international law’ (Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, HCR/MMSP/2001/09, 13 December 2001). 108

  For example, by providing comments on draft legislation.

109

  The UNHCR speaks to the interpretation of a particular point of law at issue, rather than advocating on the facts of a particular case. See, eg, the intervention of the UNHCR in Zainab Esther Fornah, published in (2007) 19 IJRL 339; the intervention of UNHCR in AlRawi, published in (2008) 20 IJRL 675. See further Zieck, ‘UNHCR’s Supervisory Responsibility’, n 97, 1497–8; Goodwin-Gill and McAdam, n 1, 427. 110

  The Executive Committee has ‘reaffirmed that the promotion and dissemination of refugee law is one of the fundamental responsibilities of the Office of the United Nations High Commissioner for Refugees and is directly related to the effective international protection of refugees’ (Executive Committee Conclusion No 51 (XXXIX) (1988)). 111

  This ranges from quiet diplomacy to formal interventions, utilizing contacts, and using the media. See Stavropoulou, n 16, 214–6. 112

  The value of the UNHCR’s playing a meaningful role in refugee status determinations was recognized by the Executive Committee in Conclusion No 28 (XXXIII) (1982). See further Türk, ‘UNHCR’s Supervisory Responsibility’, n 97, 151–4. 113

  The High Commissioner has reported that, during the period 1 July 2013 until 30 June 2014, the UNHCR carried out ‘registration and refugee status determination (RSD) in more than 60 countries and territories, registering 203,200 individuals or 19 per cent of all individual asylum applications lodged during the year’: Report of the United Nations High Commissioner for Refugees Covering the period 1 July 2013–30 June 2014, UN Doc A/69/12 (2014), para 23. During the period 2014–15, the UNHCR ‘received a record 245,700 applications for refugee status under its mandate’: Report of the United Nations High Commissioner for Refugees Covering the period 1 July 2014–30 June 2015, UN Doc A/70/12 (2015), para 20. 114

  For many years, each UNHCR office had its own refugee status determination procedure, albeit with certain shared characteristics. However, these procedures and standards were open to criticism, eg, for lack of due process. See, eg, Alexander, ‘Refugee Status Determination Conducted by UNHCR’ (1999) 11 IJRL 251. In order to improve consistency across offices, the UNHCR elaborated a manual for UNHCR refugee status determinations, which contains the procedure and process followed. See UNHCR, Procedural Standards for Refugee Status Determinations under UNHCR’s Mandate (undated). This has helped standardize determinations. However, concerns remain. See the open letter to the High Commissioner from various NGOs, published in (2007) 19 IJRL 161; Kagan ‘The Beleaguered Gatekeeper: Protection Challenges Posed by UNHCR Refugee Status Determination’ (2006) 18 IJRL 1. 115

  See, eg, Report of the United Nations High Commissioner for Refugees Covering the period 1 July 2014–30 June 2015, UN Doc A/70/12 (2015), para 20.

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116

  There has been a shift in terminology from the statutory language of ‘permanent solutions’ to the language of ‘durable solutions’. 117

  Statute of the UNHCR, Art 1.

118

  See, eg, GA Res 1672 (XVI) (1961), referring to resettlement ‘where necessary’. See also GA Res 3143 (XXVIII) (1973). 119

  A durable solution might also involve two or more of the options.

120

  See, eg, Executive Committee, Conclusion No 18 (XXXI) (1980) and Conclusion No 101 (LV) (2004). See also GA Res 60/128 (2005). This was not always the case. In the first few years of the UNHCR’s work, local integration and resettlement were the primary durable solutions. Feller and Klug, n 8, para 88, note that, during the initial period of the UNHCR’s work, ‘[m]ost of the world’s refugees were from communist States, and UNHCR’s principal donors considered it inconceivable that refugees would choose to return to their homes. However, as of the mid-1980s, when the focus of many major refugee programmes had shifted to developing regions, increased emphasis was laid on voluntary repatriation, in view of limited opportunities for local integration.’ On voluntary repatriation, see UNHCR, Handbook on Voluntary Repatriation: International Protection (1996); Executive Committee, Conclusion No 18 (XXXI) (1980), 40 (XXXVI) (1985) and No 101 (LV) (2004); UNHCR, Note on International Protection UN Doc A/AC.96/694 (1987), paras 45–61; Goodwin-Gill, ‘Voluntary Repatriation: Legal and Policy Issues’ in Loescher and Monahan (eds), n 35, 255; Goodwin-Gill and McAdam, n 1, 492–7; Zieck, UNHCR and Voluntary Repatriation of Refugees: A Legal Analysis (1997); Hathaway, n 106, 917–53; Takahashi, ‘The UNHCR Handbook on Voluntary Repatriation: The Emphasis of Return over Protection’ (1997) 9 IJRL 593; (2004) 23 RSQ Special Issue, and (1997) 9 IJRL Special Issue. 121

  There is a distinction between facilitation and promotion of voluntary repatriation. As noted by Goodwin-Gill and McAdam, n 1, 494, facilitation ‘presupposes an informed and voluntary decision by an individual’, while promotion ‘anticipates varying degrees of encouragement by outside bodies’. Feller and Klug, n 8, paras 92–5, note that the ‘UNHCR may facilitate or actively promote repatriation, depending on the conditions prevailing in the country of return. Where these are less secure or less favourable to durable return, the Office facilitates rather than promotes return. Facilitation assistance may range from providing information, to logistical support, basic reintegration packages and protection monitoring in the country of origin. UNHCR actively promotes repatriation when a significant change has occurred in the country of origin, leading to a strong expectation of a sustainable return … . Measures to promote voluntary repatriation include, in addition to information, logistical support, protection monitoring, and assistance packages, the facilitation of dialogue between the host country, the country of origin and the refugees.’ 122

  See UNHCR, Handbook on Voluntary Repatriation: International Protection (1996); UNHCR, Handbook for Repatriation and Reintegration Activities (2004). See also Executive Committee, Conclusion No 18 (XXXI) (1980) and Conclusion No 40 (XXXVI) (1985); GA Res 59/172 (2004). 123

  See, eg, the Tripartite Agreement between the Government of Ethiopia, the Government of Sudan, and UNHCR, for the Voluntary Repatriation of Sudanese Refugees in Ethiopia back to the Sudan, 27 February 2006. 124

  See, eg, the repatriation of members of the Rohingyan refugees from Bangladesh to Burma in 1994–5, discussed in Loescher, n 1, 284–6. See further Chimni, ‘The Meaning of Words and the Role of UNHCR in Voluntary Repatriation’ (1993) 5 IJRL 442; Okoth-Obbo, ‘Coping with a Complex Refugee Crisis in Africa: Issues, Problems and Constraints for

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Refugee and International Law’ in Gowlland-Debbas (ed), n 54, 16–17; Goodwin-Gill, n 23, 243–4. 125

  Executive Committee, Conclusion No 104 (LVI) (2005). See further UNHCR, Global Consultation on International Protection: Local Integration, EC/GC/02/6 (2002), reproduced in (2003) 22 RSQ 239; Hathaway, n 106, 977–90. 126

  GA Res 60/129 (2005). The Executive Committee has recognized that local integration is ‘a dynamic and multifaceted two-way process, which requires efforts by all parties concerned, including a preparedness on the part of refugees to adapt to the host society without having to forego their own cultural identity, and a corresponding readiness on the part of host communities and public institutions to welcome refugees and to meet the needs of a diverse population’, and that it ‘needs to be undertaken in a manner that sustains the viability of local communities affected by the presence of refugees and that a failure to do so may result in an unreasonable burden being placed on host countries’ (Conclusion No 104 (LVI) (2005)). 127

  As with voluntary repatriation, the UNHCR has recognized that the mere act of resettlement alone will not suffice; assistance in integration will be important. On resettlement, see Executive Committee Conclusion No 22 (XXIII) (1981) and No 67 (XLII) (1991); UNHCR, Resettlement Handbook (2011); UNHCR, New Directions for Resettlement Policy and Practice, EC/51/SC/INF.2, 14 June 2001; UNHCR Resettlement Section, ‘Resettlement: An Instrument of Protection and a Durable Solution’ (1997) 9 IJRL 666; Troeller, ‘UNHCR Resettlement as an Instrument of International Protection: Constraints and Obstacles in the Arena of Competition for Scarce Humanitarian Resources’ (1991) 3 IJRL 546; Troeller, ‘UNHCR Resettlement: Evolution and Future Direction’ (2002) 14 IJRL 85; Chimni, ‘From Resettlement to Involuntary Repatriation: Towards a Critical History of Durable Solutions to Refugee Problems’ (2004) 23 RSQ 55; Bach, ‘Third Country Resettlement’ in Loescher and Monahan (eds), n 35, 313; Goodwin-Gill and McAdam, n 1, 497–9; Hathaway, n 106, 963–77. 128

  See Executive Committee Conclusion No 22 (XXIII) (1981), IV(4); Resettlement as an Instrument of Protection: Traditional Problems in Achieving this Durable Solution and New Directions in the 1990s, EC/SCP/65, 9 July 1991, para 2. Resettlement found favour following the Second World War as a durable solution for European refugees. It was used as a primary solution in the 1970s and 1980s, eg, in respect of Indo-Chinese refugees. See Feller and Klug, n 8, para 98. However, as a result of these large-scale programmes, in certain quarters resettlement came to be seen as ‘having been divorced in its functioning from fundamental principles of protection and more of a “migration programme in disguise”’ (UNHCR, New Directions for Resettlement Policy and Practice, EC/51/SC/INF.2, 14 June 2001, para 2). Thus, in the early 1990s, it fell out of favour and came to be seen as ‘a last resort where no other durable solutions are available’ (GA Res 46/106 (1991)); UNHCR, Resettlement as an Instrument of Protection: Traditional Problems in Achieving this Durable Solution and New Directions in the 1990s, EC/SCP/65, 9 July 1991. 129

  UNHCR, New Directions for Resettlement Policy and Practice, EC/51/SC/INF.2, 14 June 2001, para 4. 130

  According to the UNHCR, in 2014, the number of persons in need of resettlement was more than 950,000, whereas the number of places offered was approximately 80,000 on an annual basis. See Progress Report on Resettlement, EC/65/SC/CRP.11 (2014), para 5. The UNHCR estimated that in 2015, over 1,150,000 refugees were in need of resettlement. See UNHCR, Global Projected Resettlement Needs 2016 (2015), 12.

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131

  The UNHCR defines a ‘protracted refugee situation’ as involving some 25,000 refugees in exile for a period longer than five years, recognizing that this is a ‘crude measure’ for conceptualizing the notion. See Executive Committee of the High Commissioner’s Programme Standing Committee, Protracted Refugee Situations, EC/54/SC/CRP.14 (2004). Both the numbers involved and the length of the protraction have increased over the years. See UNHCR, The State of the World’s Refugees 2012: In Search of Solidarity (2012), ch 3. This has led to debate as to the utility of refugee camps and the so-called ‘warehousing’ of refugees. 132

  See UNHCR and Migration Policy Institute Europe, ‘Additional Pathways for Refugees: Exploring the Potential and Addressing Barriers’, 11–12 February 2016; Report of the United Nations High Commissioner for Refugees covering the period 1 July 2015–30 June 2016, UN Doc A/71/12, para 33. 133

  See n 86.

134

  At the request of the first High Commissioner, Gerrit Jan van Heuven Goedhart, the General Assembly agreed to authorize the High Commissioner ‘to issue an appeal for funds’ in respect of emergency aid to refugees (GA Res 538B (VI) (1952)). However, only limited funds would prove forthcoming. Following the events in Hungary in 1956 and the consequent refugee influx in neighbouring countries, Austria requested the UNCHR to appeal to governments for emergency assistance. See Holborn, Refugees: A Problem of Our Time, n 1, 391–2. The General Assembly also requested the UNCHR to make ‘speedy and effective arrangements for emergency assistance to refugees from Hungary’ (GA Res 1006 (ES-II) (1956)). See also GA Res 1129 (XI) (1956). Subsequently, the General Assembly called on the UNHCR ‘to develop a comprehensive assessment of the needs, both material and financial, of the Hungarian refugees’ (GA Res 1039 (XI) (1956)). This was despite the temporal limitation in the Refugee Convention to persons outside their country of nationality due to events arising prior to 1 January 1951. See para 23.20. Also in the mid-1950s, following an influx of persons from China to Hong Kong, at the time a British colony, there was considerable debate as to whether such persons were ‘refugees’. The General Assembly appealed to member states and NGOs to provide assistance to alleviate the distress of Chinese refugees in Hong Kong, and authorized the High Commissioner to use his ‘good offices’ ‘to encourage arrangements for contributions’ (GA Res 1167 (XII) (1957)). On the episode, see Hambro, The Problem of Chinese Refugees in Hong Kong (1955). On the good offices function of the UNHCR, see Holborn, Refugees: A Problem of Our Time, n 1, ch 18. Some years later, in ECOSOC Res 2011 (LXI) (1976), ECOSOC directed the UNHCR ‘to alleviate the suffering of all those of concern’ to the UNHCR, moving beyond protection and permanent solutions. Likewise, GA Res 1166 (XII) (1957) referred to the UNHCR’s providing ‘assistance’ to refugees within the mandate of the High Commissioner. 135

  In particular, under the leadership of Sadako Ogata, there was a shift in emphasis away from legal protection and towards operations and assistance. See Hocké, n 35; Loescher, n 1, 249–51 and 324–6. Aleinikoff, n 48, 401, notes that ‘[o]ver the past 60 years, the provision of assistance to refugees and other persons of concern has come to dominate UNHCR’s programme planning and fund-raising efforts, and it is now firmly established as a major element of its mandate’. 136

  See generally Cunliffe and Pugh, n 13; Goodwin-Gill, n 23.

137

  See, eg, Executive Committee Conclusion No 61 (XLI) (1990), which notes the ‘close nexus between international protection, international solidarity, material assistance and the provision of solutions through voluntary repatriation, integration in countries of asylum, or resettlement, and calls upon the High Commissioner to continue his efforts to ensure that protection measures are fully integrated into assistance and durable solutions programmes’. See also GA Res 66/135 (2011), which reaffirms that ‘assistance and From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

protection are mutually reinforcing and that inadequate material assistance and food shortages undermine protection’. 138

  See Wilde, International Territorial Administration (2008), 62; Verdirame, The UN and Human Rights (2011), 270–2; Janmyr, Protecting Civilians in Refugee Camps (2013), 267– 70. On the UNHCR’s presence in the field, see Zieck, n 46. 139

  For example, writing in 2008, Wilde, n 138, 62, fn 54, notes of the Dadaab camps in Kenya: ‘UNHCR’s main implementing partner in the Dadaab camps was CARE Kenya, which was responsible for camp management, food-distribution, water and sanitation, education and community services. … For 11 years, until 2003, Médecins Sans Frontières Belgium … provided medical care, both immediate and, with immunization programmes, long-term … Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ) … was responsible for managing firewood and the environment, and for training residents of the camps in conservation skills’. See further Janmyr, n 138, ch 7. 140

  See Verdirame and Harrell-Bond, Rights in Exile: Janus-Faced Humanitarianism (2005); Farmer, ‘Refugee Responses, State-like Behaviour, and Accountability for Human Rights Violations: A Case Study of Sexual Violence in Guinea’s Refugee Camps’ (2006) 9 Yale Human Rights and Development Law Journal 44; Verdirame, n 138, 281–94. See further Pallis, ‘The Operation of UNHCR’s Accountability Mechanisms’ (2004–5) 37 NYU JILP 869. 141

  Loescher, Betts and Milner, n 1, 14, have noted that funding through voluntary contributions constitutes ‘the most significant means through which states are able to control the scope of UNHCR’s work’. 142

  Statute of the UNHCR, Art 20. This can be traced back to GA Res 319 (IV) (1949), which provided that, subject to the General Assembly deciding otherwise, ‘no expenditure other than administrative expenditures relating to the functioning of the High Commissioner’s Office should be borne on the budget of the United Nations, and that all other expenditures relating to the activities of the High Commissioner should be financed by voluntary contributions’. At the same time, according to Art 18 of the Statute, the Secretary-General is to ‘provide the High Commissioner with all necessary facilities within budgetary limitations’. 143

  Report of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees, UN Doc A/69/12/Add.1 (2014), para 13(c). 144

  Whereas the UNHCR budget for 2015 was some $6.23 billion, which ultimately rose to £7.23 billion due to the emergence of a number of crises during the year, only $44.1 million came from the UN regular budget. See Report of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees, UN Doc A/69/12/Add.1 (2014) para 13(c); UNHCR, Global Report 2015 (2016), 20, 25. A breakdown of the areas in which the funding is spent is contained in the annual reports of the UNHCR to the General Assembly. See, eg, Report of the United Nations High Commissioner for Refugees, UN Doc A/70/12 (2015), Table 2, at 23. The UNHCR splits its budgetary requirements into four pillars—the refugee programmes, the stateless programmes, reintegration projects, and internal displacement projects. In 2015, the budget needs for the refugee programme amounted to some $5.03 billion, the stateless programme $75.7 million, reintegration projects $242.2 million, and internally displaced persons $1.41 billion. Other budgetary items included the operational reserve and the new or additional activities mandate-related reserve. See UNHCR, Global Report 2015 (2016), 24. The original budget of the UNHCR was some $300,000.

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145

  The UNHCR issues an appeal for funds each December and then convenes a pledging conference. Special appeals are also issued in relation to particular unforeseen activities, eg, following an event that gives rise to refugee flows. This stands in contrast to the statutory provision, which provides that the High Commissioner may not ‘appeal to Governments for funds or make a general appeal, without the prior approval of the General Assembly’ (Statute of the UNHCR, Art 10). However, as early as 1952, the General Assembly authorized the UNHCR to appeal for funds for emergency aid (GA Res 538 (VI) B (1952)). This authorization was provided after considerable discussion and the reluctance of a number of states to permit it. See Holborn, Refugees: A Problem of Our Time, n 1, 136–9. In 1960, the General Assembly decided that an ad hoc Committee of the Assembly would be convened, ‘where pledges of voluntary contributions for the refugee programmes for the following year would be announced’ (GA Res 1556 (XV) (1960)). In 1961, the General Assembly decided that the ad hoc Committee would meet on an annual basis for the purpose of pledging voluntary contributions (GA Res 1729 (XVI) (1961)). 146

  See the various UNHCR Global Reports, eg, UNHCR, Global Report 2015 (2016), 27. The principal donors are the US, the EU, Japan, Germany, Kuwait, Sweden, Norway, and Denmark. This reliance on a small group can lead to certain tensions. For example, it has been said that during the late 1970s and early 1980s, ‘virtually all of [UNHCR] funding came from Western governments who had a geopolitical interest in supporting UNHCR camps which housed anti-Communist “refugee warriors” ’ (Loescher, Betts, and Milner, n 1, 36). The budget deficit of the UNHCR, amongst other factors, also led to donor governments forcing High Commissioner Jean-Pierre Hocké to resign (Loescher, n 1, 262– 4). Key donors also press the UNHCR to undertake particular tasks. See Helton, n 15, 280. 147

  UNHCR, Global Report 2015 (2016), 27. In 2015, this amounted to $284 million.

148

  These included the Bill and Melinda Gates Foundation, Google.org and AC Milan, and various national associations for the UNHCR. See UNHCR, Global Report 2015 (2016), 43. This is not new. Shortly after the creation of the UNHCR, at a time in which it was finding it difficult to attract funding, the Ford Foundation provided funding of $2.9 million. See Statement by the High Commissioner, Gerrit Jan van Heuven Goedhart, at the Meeting of the Third Committee of the United Nations General Assembly, 13 October 1953, available on the UNHCR website. 149

  For example, Microsoft and PriceWaterhouse Coopers supported certain technology programmes. Report of the United Nations High Commissioner for Refugees, UN Doc A/ 64/12 (2009), para 76. Lego provided children’s toys and Ikea Foundation provided bedding. See UNHCR, Global Report 2010 (2011), 95. 150

  For example, in 2010, voluntary contributions were provided by ECOWAS, the Council of Europe Development Bank, and the African Development Bank, amongst others, as well as by IOM. See UNHCR, Global Report 2015 (2016), 36. 151

  States and other entities that provide funding may earmark the projects for which the funds are to be utilized. In 2015, 85 per cent of funds were earmarked. See UNHCR, Global Report 2015 (2016), 36, which notes that some $130 million was not earmarked, with 63 per cent of funds ‘tightly earmarked’ for specific countries or activities, and 22 per cent ‘broadly earmarked’. Art 10 of the Statute of the UNHCR provides that the High Commissioner may reject offers that he does not consider appropriate or that cannot be used. However, this is unlikely to be engaged by earmarking, as the offers are not inappropriate but selective.

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Part 3 The United Nations: What it Does, 24 Protecting the Environment Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): Sustainable development — Environmental disputes — Pollution — Precautionary principle

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(p. 908) 24  Protecting the Environment 1.  Introduction 24.01 2.  Work of the principal organs 24.02 3.  Work of the specialized agencies 24.10 4.  Institutional arrangements of multilateral environmental agreements 24.15 5.  The United Nations Environment Programme 24.16 Adede, ‘International Protection of the Environment’ in The United Nations at Age Fifty (ed Tomuschat, 1995), 197; Birnie, ‘The UN and the Environment’ in United Nations, Divided World (eds Roberts and Kingsbury, 1996), ch 10; Birnie, Boyle, and Redgwell, International Law and the Environment (2009), ch 2; Caldwell, International Environmental Policy (1996); Desai, ‘UNEP: A Global Environmental Authority?’ (2006) 36 Environmental Policy and Law 137; Nanda, ‘Environment’ in United Nations Legal Order (vol 2, Schachter and Joyner (eds), 1995), 631; Petsonk, ‘The Role of the United Nations Environment Programme (UNEP) in the Development of International Environmental Law’ (1990) 5 American University JILP 351; Pushkareva, ‘United Nations Environment Programme (UNEP)’ in MPEPIL (online); Sands and Peel, Principles of International Environmental Law (2012), ch 3; ‘Reports on International Organizations and Bodies’, published annually in the YbK IEL; UNEP Annual Reports; Werksman (ed), Greening International Institutions (1996); White, The United Nations System: Toward International Justice (2002), ch 10; http:// www.unep.org/.

1.  Introduction 24.01  Neither the environment nor protection of the environment is mentioned explicitly in the UN Charter. Nonetheless, the UN has taken action in order to protect the environment.1 It has ‘played a pivotal role as a framework for developing environmental (p. 909) decisionmaking’.2 It has also ‘contributed to many of the principles of environmental law’, including the ‘polluter pays’ principle, the notion of common but differentiated responsibilities, and the precautionary principle.3 At the same time, ‘UN actions in this area are beset by conflicting aims.’4

2.  Work of the principal organs 2.1  The General Assembly 24.02  The General Assembly has undertaken a variety of actions related to the protection of the environment. It has convened major environmental conferences and summits, including the Stockholm Conference on the Human Environment (1972);5 the Rio Conference on Environment and Development (1992);6 the (p. 910) Johannesburg World Summit on Sustainable Development (2002);7 the United Nations Conference on Sustainable Development (Rio+20) (2012);8 and the United Nations Sustainable Development Summit (2015).9 These conferences and summits have adopted important instruments relating to the protection of the environment. 24.03  The General Assembly has also adopted numerous resolutions that relate to the protection of the environment.10 Among the most important such resolutions are the World Charter for Nature,11 the United Nations Millennium Declaration,12 the 2005 World Summit Outcome,13 and ‘Transforming our World: the 2030 Agenda (p. 911) for Sustainable Development’.14 The General Assembly has endorsed influential reports,15 and has convened negotiations on a number of conventions16 and adopted others.17 It has also established important bodies in the field of the protection of the environment, principally

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the UNEP and the High-Level Political Forum on Sustainable Development, which are discussed separately in this chapter;18 as well as other bodies, the work of which includes environmental matters.19 It has been aptly noted that the contribution of the General Assembly to the development of international environmental law should not be underestimated.20 24.04  The High-Level Political Forum on Sustainable Development was established by the General Assembly in 2013.21 The Political Forum is of a ‘universal intergovernmental character’.22 It has the mandate to provide political leadership, guidance and recommendations for sustainable development, follow up and review progress in the implementation of sustainable development commitments, enhance the integration of the three dimensions of sustainable development in a holistic and cross-sectoral manner at all levels and have a focused, dynamic (p. 912) and action-oriented agenda, ensuring the appropriate consideration of new and emerging sustainable development challenges.23 Meetings of the Political Forum are convened under the auspices of the General Assembly and of the United Nations Economic and Social Council (ECOSOC).24 24.05  The International Law Commission (ILC), a subsidiary organ of the General Assembly, has undertaken work relating to the protection of the environment.25

2.2  The Security Council 24.06  The Security Council has the ‘primary responsibility for the maintenance of international peace and security’.26 As such, it has played a lesser role, compared to the General Assembly, in the protection of the environment. The Security Council has not been silent, however. In Resolution 687 (1991), the Security Council reaffirmed that Iraq ‘is liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources … as a result of Iraq’s unlawful invasion and occupation of Kuwait’. And environmental damage fell within (p. 913) the competence of the UN Compensation Commission.27 In 1992, the Security Council noted that ‘[t]he absence of war and military conflicts amongst States does not in itself ensure international peace and security. The non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security.’28 In the context of resolutions on the Democratic Republic of the Congo, the Security Council noted the ‘link between the exploitation of the natural resources and other forms of wealth in the Democratic Republic of the Congo and the continuation of the conflict’.29 The Security Council has also held open debates on ‘energy, security and climate’; and on the ‘maintenance of international peace and security: the impact of climate change’; as well as Arria-formula meetings on climate change and global security.30 However, these have not been without controversy.31

2.3  The Economic and Social Council 24.07  The Economic and Social Council (ECOSOC) established the UN regional economic commissions.32 The regional commissions have undertaken work in the field of the protection of the environment, each with a different focus.33 ECOSOC has (p. 914) also established other bodies relating to the protection of the environment, including the UN Forum on Forests.34 24.08  Furthermore, ECOSOC established, at the request of the General Assembly, the Commission on Sustainable Development,35 which has subsequently been replaced by the High-Level Political Forum on Sustainable Development.36 The Commission was a functional Commission of ECOSOC.37 It comprised 53 members, elected by (p. 915) ECOSOC for three-year terms.38 Representation was ‘at a high level’.39 The mandate of the Commission was, inter alia, to ensure effective follow-up to the United Nations Conference on From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Environment and Development, to ‘examine the progress of the implementation of the Agenda 21’ of that Conference, and to ‘enhance international cooperation and rationalize the intergovernmental decision-making capacity or the integration of environment and development issues’.40 The Commission met on an annual basis, for periods of two to three weeks. It organized its work on the basis of thematic clusters of issues.41 In 2012, the Rio+20 Conference recommended that the Commission be replaced with a High-Level Political Forum on Sustainable Development, a recommendation that was approved by the General Assembly.42 Accordingly, the final session of the Commission was held immediately prior to the first session of the High-Level Political Forum.43

(p. 916) 2.4  The International Court of Justice 24.09  The International Court of Justice (ICJ) has heard a number of cases relating to the protection of the environment, and has made contributions to the development of this area of the law.44 In 1993, it established a Chamber for Environmental Matters; however, due to lack of usage, it has not been constituted since 2006.45

3.  Work of the specialized agencies 24.10  Some of the specialized agencies of the UN have contributed to the protection of the environment.46 The constituent instrument of one agency, the Constitution of the Food and Agriculture Organization (FAO), expressly includes environmental considerations.47 Specialized agencies have adopted conventions,48 and soft law instruments,49 in the area of the protection of the environment. They have established (p. 917) bodies that work on environmental issues,50 and have convened summits on the subject.51 24.11  Some of the work of the World Bank has impacted the environment negatively.52 However, over time, the World Bank has become more attuned to the environmental implications of its work53 and of its own environmental footprint, for example reporting on the greenhouse gas emissions associated with the Bank’s global facilities and operations.54 24.12  The World Bank has contributed to a number of efforts for sustainable investment. In 2015, the World Bank replenished the Global Environment Fund (GEF), which provides grants and funding ‘to cover the “incremental” or additional costs associated with transforming a project with national benefits into one with global environmental benefits’.55 The GEF also serves as the financial mechanism for a number of (p. 918) conventions, including the Convention on Biological Diversity and the UN Framework Convention on Climate Change. 24.13  Following a 2010 report by the World Bank’s Independent Evaluation Group, the Bank launched the Grievance Redress Service (GRS) in 2015. The GRS is a management-led grievance redress mechanism which ‘receives complaints from project-affected people and communities who believe that a World Bank-funded project has caused, or will cause them harm’. The GRS was implemented with a view to ensuring that the Bank is responsible for any harm to people or the environment as a result of its financed projects.56 24.14  Also in response to the 2010 report, in 2016, the World Bank adopted a new Environmental and Social Framework (ESF), which is due to come into effect by 2018.57 The ESF revises a policy on assessing and managing the environmental and social impacts of World Bank-financed projects. It aims to expand protections for people and the environment in Bank-financed investment projects … [making] important advances in areas such as transparency, non-discrimination, social inclusion, public participation, and accountability—including expanded roles for grievance redress mechanisms.58

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4.  Institutional arrangements of multilateral environmental agreements 24.15  The institutional arrangements that have been established pursuant to the various multilateral environmental agreements have proved to be particularly important in the area of international environmental law and governance.59 The specific powers of the institutions are set out in the relevant multilateral agreement. They include the power to amend the multilateral agreement,60 to adopt protocols to the (p. 919) agreement,61 to amend annexes to the agreement,62 to interpret the agreement,63 and to adopt binding decisions.64 Some of these powers see the institutional arrangement as the forum at which states parties make the decisions; others see a greater role for the institutions themselves.65

5.  The United Nations Environment Programme 24.16  The UNEP has been described as ‘the UN’s principal environment organization’.66 It was established pursuant to General Assembly Resolution 2997 (XXVII) in 1972.67 The UNEP is a subsidiary organ of the General Assembly, not a specialized agency of the UN.68 (p. 920) 24.17  The United Nations Environment Assembly is the governing body of the UNEP.69 It is universal in membership.70 The Assembly meets on a biennial basis and carries out a number of functions.71 It also benefits from a subsidiary inter-sessional body, the Committee of Permanent Representatives, which is composed of permanent representatives accredited to the UNEP.72 (p. 921) 24.18  A ‘small secretariat’ was established ‘to serve as a focal point for environmental action and coordination within the United Nations system in such a way as to ensure a high degree of effective management’.73 The Secretariat is headed by an Executive Director, who is ‘elected by the General Assembly on the nomination of the SecretaryGeneral’.74 The Executive Director is tasked, inter alia, with advising ‘intergovernmental bodies of the United Nations system on the formulation and implementation of environmental programmes’; providing, upon request, ‘advisory services for the promotion of international cooperation in the field of the environment’; and submitting to the United Nations Environment Assembly ‘proposals embodying medium-range and long-range planning for United Nations programmes in the field of the environment’.75 24.19  The Environment Fund is the core source of funding for the implementation of the UNEP’s programme of work and medium-term strategy.76 It is made up of (p. 922) voluntary contributions.77 The costs of providing the Secretariat and servicing the Environment Assembly are borne by the regular budget of the UN.78 The UNEP also manages a number of trust funds, to which states contribute, often with earmarked contributions. 24.20  The headquarters of the UNEP is in Nairobi.79 It has regional offices, sub-regional offices, country offices, and liaison offices.80 The Regional Support Office, based in Headquarters, serves to coordinate UNEP’s activities in the various regions of the world.81 24.21  The UNEP has a number of divisions. As at September 2016, these were: the Division of Early Warning and Assessment;82 the Division of Environmental Policy (p. 923) Implementation;83 the Division of Technology, Industry and Economics;84 the Division of Environmental Law and Conventions;85 and the Division of Communications and Public Information.86 The UNEP also benefits from an Office of the Chief Scientist.87 24.22  As at September 2016, the UNEP had seven priority areas that cut across its divisions: climate change, disasters, and conflicts; ecosystem management; environmental governance; chemicals and waste; resource efficiency; and environment under review. It also works on the environmental components of the 2030 Agenda and the development of

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the sustainable development goals following the UN Conference on Sustainable Development.88 24.23  The UNEP has made important contributions to the protection of the environment. In particular, it has been ‘instrumental’ in the conclusion of multilateral environmental agreements.89 It provides the Secretariat functions for a number of environmental agreements90 and has a role to play in the coordination of environmental (p. 924) agreements.91 It has itself adopted various guidelines relating to the protection of the environment.92 And it has carried out a variety of other activities.93 (p. 925) 24.24  The UNEP is also part of UN-Water, an inter-agency coordination mechanism established in 2003 to address all issues relating to fresh water.94 UN-Water is composed of UN entities that focus on, or have an interest in, water-related issues.95 It has several thematic priority areas, one of which relates to water and climate change.96 As UNWater was established to address all issues relating to fresh water, many of its activities extend beyond protection of the environment.97 The primary role of UN-Water is to enhance existing programmes and projects relating to fresh water, through coordinated action across the UN system.98 It is a coordination mechanism rather than an operational one. 24.25  Despite the important contributions of the UNEP, the Report of the High-Level Panel on United Nations System-Wide Coherence refers to it as being ‘considered weak, underfunded and ineffective in core functions’.99 At the United Nations Conference on Sustainable Development (Rio+20), the Conference (p. 926) committed to strengthening the role of the United Nations Environment Programme as the leading global environmental authority that sets the global environmental agenda, promotes the coherent implementation of the environmental dimension of sustainable development within the UN system and serves as an authoritative advocate for the global environment.100 The Conference requested the General Assembly to strengthen the UNEP.101 In General Assembly Resolution 67/213, 2012, the General Assembly decided to ‘strengthen and upgrade’ the UNEP ‘in the manner set out’ in the outcome document.

Footnotes: 1

  It has been suggested that the protection of the environment ‘can be seen as a significant development by practice of the UN’s inherent powers in relation to social and humanitarian problems identified in Article 1(3) of the UN Charter’ (White, The United Nations System: Toward International Justice (2002), 63). Along similar lines, Sands and Peel note: ‘Since the late 1960s … the practice of the organisation through its principal organs … has been to interpret and apply [the] broad purposes [of the UN] as including the protection of the environment and the promotion of sustainable development’ (Sands and Peel, Principles of International Environmental Law (2012), 56–7). See also Birnie, Boyle, and Redgwell, International Law and the Environment (2009), 58–9. 2

  Ulfstein, ‘International Framework for Environmental Decision-Making’ in Research Handbook on International Environmental Law (eds Fitzmaurice, Ong, and Merkouris, 2011), 26. 3

  White, n 1, 66. On the principles, see, eg, Birnie, Boyle, and Redgwell, n 1, ch 3; Sands and Peel, n 1, ch 6; various, in Bodansky, Brunnée, and Hey, The Oxford Handbook of

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International Environmental Law (2007); various, in Fitzmaurice, Ong, and Mekouris (eds), n 2; Viñuales (ed), The Rio Declaration on Environment and Development (2015). 4

  White, n 1, 246. The United Nations Development Programme (UNDP), eg, works on the promotion of development; and this can conflict with the environmental agenda. That the UN has ‘managed to place’ the protection of the environment ‘firmly on the international agenda’ is considered an achievement in and of itself (ibid, 245). 5

  Convened pursuant to GA Res 2398 (XXIII) (1968), the Stockholm Conference was a watershed moment for international action in relation to the protection of the environment. Prior to that Conference, action was sporadic and scattered. By contrast, the Stockholm Conference ‘was the first attempt to tackle human-induced environmental problems on a global level’ (Beyerlin and Reichard, ‘The Johannesburg Summit: Outcome and Overall Assessment’ (2003) 63 ZöV 213, at 213). See also Nanda, ‘Environment’ in United Nations Legal Order (vol 2, eds Schachter and Joyner, 1995), 633–5. The Stockholm Conference has also been described as ‘the high-water mark of environmental protection achieved in a global conference’ (Viñuales, ‘The Rio Declaration on Environment and Development: Preliminary Study’ in Viñuales (ed), n 3, 5). The Stockholm Conference adopted, inter alia, the Stockholm Declaration on the Human Environment and a lengthy Action Plan for the Human Environment, consisting of 109 recommendations. The Conference also resulted in the establishment of the United Nations Environment Programme (UNEP) (on which see section 5). More generally, the Stockholm Conference led to greater awareness of environmental issues, with environmental agencies established within states and UN entities beginning to take on board environmental issues within the scope of their mandates. See Nanda, above, 635–6. However, ‘all major environmental indicators … continued to deteriorate’, and this was put down to ‘the environment–development equation and, more specifically, the inability of the environmental message to spread beyond environment ministries, particularly to those circles of government that handled economic and social policies’ (Viñuales), above. On the Stockholm Conference, see UN, Report of the United Nations Conference on the Human Environment, Stockholm, 5–16 June 1972, UN Doc A/CONF.48/14/Rev.1; Sohn, ‘The Stockholm Declaration on the Human Environment’ (1973) 14 Harv ILJ 423; Kennet, ‘The Stockholm Conference on the Human Environment’ (1972) 48 International Affairs 33; Gardner, The Role of the UN in Environmental Problems (1972) 26 International Organization 237; Caldwell, International Environmental Policy (1996), chs 3 and 4. 6

  Convened pursuant to GA Res 44/228 (1989), the Rio Conference, often known as the Earth Summit, adopted the Rio Declaration on Environment and Development, and the Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests. Two treaties—the Convention on Biological Diversity and the Framework Convention on Climate Change—were opened for signature at the Conference. The Rio Conference was particularly notable for its linking of environmental issues with development ones, and for its concept of ‘sustainable development’. Indeed, the move at Rio from ‘international “environmental law” to a … “law of sustainable development” ’ has been described as a ‘paradigm shift’ (Sand, ‘International Environmental Law After Rio’ (1993) 4 EJIL 377, at 378). Agenda 21, a lengthy action plan addressing a range of issues in the field of sustainable development, was also adopted. In addition, the Rio Conference resulted in the creation of the Commission on Sustainable Development (on which see para 24.08). On the Rio Conference, see Report of the United Nations Conference on Environment and Development, Rio de Janiero, 3–14 June 1992, UN Doc A/CONF.151/26; Campiglio et al (eds), The Environment After Rio (1994); Caldwell, n 5, ch 6; Johnson (ed), The Earth Summit: The United Nations Conference on Environment and Development (UNCED)

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(1993), ch 6; Sand, above. There is a rich literature on the Rio Declaration. See, in particular, Viñuales (ed), n 3. 7

  Convened pursuant to GA Res 55/199 (2001) and GA Res 56/226 (2002), the Johannesburg World Summit adopted, inter alia, the Declaration on Sustainable Development and the Plan of Implementation of the World Summit on Sustainable Development. The Summit documents do not articulate ‘new principles or policies, nor do they specifically set an agenda for further lawmaking. Their value lies mainly in the reaffirmation and refinement of existing policies and principles, and in giving a little more substance to the contours of sustainable development as a concept’ (Birnie, Boyle, and Redgwell, n 1, 53). The Summit evidenced a ‘shift from normative development to a specific focus on implementation’ of existing instruments, and ‘emphasized the social and economic development components over the environmental pillar of sustainable development’ (Viñuales, n 5, 7). See also Beyerlin and Reichard, n 5, 233–7. On the Summit, see Report of the World Summit on Sustainable Development, Johannesburg, South Africa, 26 August-4 September 2002, UN Doc A/CONF.199/20; Beyerlin and Reichard, n 5, 213. 8

  Convened pursuant to GA Res 66/197 (2012). The Rio+20 Conference adopted The Future We Want, GA Res 66/288, Annex (2012). It led, inter alia, to the strengthening of the UNEP (on which see para 24.25) and called for the development of ‘sustainable development goals’. See The Future We Want, paras 245–51. On the Rio+20 Conference, see Report of the United Nations Conference on Sustainable Development, Rio de Janeiro, Brazil, 20–22 June 2012, UN Doc A/CONF.216/16; Rehbinder, ‘Contribution to the Development of Environmental Law’ (2012) 42 Environmental Policy and Law 210; Fitzmaurice, Maljean-Dubois, and Negri (eds), Environmental Protection and Sustainable Development from Rio to Rio+20 (2014). 9

  The UN Summit adopted ‘Transforming Our World: The 2030 Agenda for Sustainable Development’, GA Res 70/1 (2015). 10

  For one list, see Sands and Peel, n 1, 59.

11

  Annexed to GA Res 37/7 (1982).

12

  GA Res 55/2 (2000). See, in particular, pt IV on ‘Protecting our common environment’.

13

  GA Res 60/1 (2005). See, in particular, the section on ‘Sustainable development: managing and protecting our common environment’. 14

  The 2030 Agenda for Sustainable Development, n 9.

15

  See, eg, GA Res 42/187 (1987), which ‘welcome[d] the report of the World Commission on Environment and Development’ (the Brundtland Commission). 16

  These include the establishment of ‘a single intergovernmental negotiating process under the auspices of the General Assembly, supported by the United Nations Environmental Programme and the World Meteorological Organization, for the preparation by an Intergovernmental Negotiating Committee of an effective framework Convention on Climate Change’ (GA Res 45/212 (1990)); and the convening of an intergovernmental conference on straddling fish stocks and highly migratory fish stocks (GA Res 47/192 (1992)). 17

  For example, through GA Res 51/229 (1997), the General Assembly adopted the Convention on the Law of the Non-Navigational Uses of International Watercourses.

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Birnie, Boyle, and Redgwell, n 1, 60, note: ‘Even when it does not itself promote the negotiation of new treaties or other instruments, the General Assembly’s power to coordinate the legal and policy agendas of specialized agencies and other UN bodies gives it a continuing role at the heart of the lawmaking process.’ 18

  On the UNEP, see section 5; on the High-Level Political Forum on Sustainable Development, see para 24.04. 19

  This includes bodies such as the UNDP, the UN Conference on Trade and Development (UNCTAD); the UN Population Fund (UNFPA); and the UN Human Settlements Programme (UN-Habitat). See ch 18, ‘Improving Economic Wellbeing’. 20

  Sands and Peel, n 1, 58.

21

  GA Res 67/290 (2013). At the United Nations Conference on Sustainable Development (Rio+20) in 2012, the Conference decided to establish ‘a universal, intergovernmental, high-level political forum, building on the strengths, experiences, resources and inclusive participation modalities of the Commission on Sustainable Development, and subsequently replacing the Commission’ (The Future We Want, n 8, para 84). The outcome document was subsequently endorsed by the General Assembly in GA Res 66/288 (2012). See also GA Res 67/203 (2013). The Secretary-General prepared a report on the ‘Lessons learned from the Commission on Sustainable Development’ to inform the design of the Forum. See UN Doc A/67/757 (2013). 22

  GA Res 67/290 (2013). All states members of the United Nations and states members of specialized agencies are able to participate in meetings of the Forum. Although the Forum is of an intergovernmental character, the UN regional commissions, UN entities, the Bretton Woods institutions, and other intergovernmental organizations are also invited to participate. Other relevant stakeholders may also participate in the Forum. For the requirements, see GA Res 67/290 (2013). 23

  GA Res 67/290 (2013). This builds on The Future We Want, n 8, para 85. The three dimensions of sustainable development are economic, social, and environmental. The summary of the first meeting of the Forum notes: ‘As guardian of the sustainable development agenda, the forum will provide a platform, under the auspices of the General Assembly, for leaders to reflect on today’s priorities, and to review sustainable development commitments and objectives, including those related to the means of implementation, within the context of the post-2015 development agenda, not in isolation but in an integrative and holistic manner.’ Summary of the first meeting of the high-level political forum on sustainable development: Note by the President of the General-Assembly, UN Doc A/68/588 (2013). 24

  GA Res 67/290 (2013). Meetings of the Forum under the auspices of the General Assembly are convened every four years by the President of the General Assembly and are at the level of Heads of States and Heads of Government. They take place at the start of the session of the General Assembly and, exceptionally, at other times. Meetings of the Forum under the auspices of ECOSOC are convened on an annual basis by the President of ECOSOC. They last for a period of eight days, of which three days are at the ministerial level. Meetings under the auspices of ECOSOC, inter alia, ‘follow up and review progress in the implementation of all the outcomes of the major United Nations conferences and summits in the economic, social and environmental fields, as well as their respective means of implementation, improve cooperation and coordination within the United Nations system on sustainable development programmes and policies, promote the sharing of best practices and experiences relating to the implementation of sustainable development and, on a voluntary basis, facilitate sharing of experiences, including

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successes, challenges and lessons learned, and promote system-wide coherence and coordination of sustainable development policies’. See GA Res 67/290 (2013). 25

  See, eg, the Draft articles on the law of the non-navigational uses of international watercourses (1994); Draft articles on prevention of transboundary harm from hazardous activities (2001); Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities (2006); and the Draft articles on the law of transboundary aquifers (2008). As at January 2016, the ILC was also working on the topics of Protection of the environment in relation to armed conflicts; and the Protection of the atmosphere. See further Hafner and Pearson, ‘Environmental Issues in the Work of the International Law Commission’ (2001) 11 Ybk IEL 3; Pronto and Wood, The International Law Commission 1999–2009, IV: Treaties, Final Draft Articles, and Other Materials (2010). 26

  UN Charter, Art 24(1).

27

  On which, see ch 30, ‘United Nations Compensation Commission’.

28

  Note by the President of the Security Council, UN Doc S/23500, 1992, issued following the 3046th meeting of the Security Council, which was held at the level of Heads of State and Heads of Government, in connection with the item ‘The responsibility of the Security Council in the maintenance of international peace and security’. 29

  SC Res 1355 (2001). See also SC Res 1376 (2001).

30

  See, in particular, S/PV.5663, 17 April 2007; S/PV.6587, 20 July 2011. See also the Statement by the President of the Security Council, issued following the 2011 debate, UN Doc S/PRST/2011/15; the concept paper for the 2007 open debate of the Security Council, UN Doc S/2007/186; the concept note for the 2011 debate, UN Doc S/2011/408; and the concept note for the Open Arria-formula meeting on the role of Climate Change as a threat multiplier for Global Security, 30 June 2015. See ch 3, ‘The Security Council’, section 4.10, ‘ “Arria-formula” meetings’. See further Sindico, ‘Climate Change: A Security (Council) Issue?’ (2007) 1 Carbon and Climate Law Review 29; Conway, ‘The United Nations Security Council and Climate Change: Challenges and Opportunities’ (2010) 1 Climate Law 375; Ng, ‘Safeguarding Peace and Security in our Warming World: A Role for the Security Council’ (2010) 15 JCSL 275. 31

  The debates revealed a difference in view among states on the role, if any, of the Security Council in tackling climate change. In broad terms, some states took the view that the Security Council should play a role in tackling climate change; others were of the view that this fell outside the purview of the Security Council and within the competence of the General Assembly and other UN entities. See S/PV.5663, 17 April 2007; S/PV.6587, 20 July 2011. 32

  The Economic Commission for Africa (ECA); the Economic Commission for Europe (ECE); the Economic Commission for Latin America and the Caribbean (ECLAC); the Economic and Social Commission for Asia and the Pacific (ESCAP); and the Economic and Social Commission for Western Asia (ESCWA). 33

  The ECE is particularly active. Among other things, it has developed a reform plan of the ‘Environment for Europe’ process, a ‘pan-European forum for tackling environmental challenges and promoting broad horizontal environmental cooperation, and as a pillar of sustainable development in the UNECE region’ (see Report of the Committee on Environmental Policy on its Special Session, ECE/CEP/S/152, 2009, Annex I, para 1). It assists states in the ECE region to improve their environmental performance. It has also developed conventions, including the ECE Convention on Long-Range Transboundary Air Pollution (1979); the Convention on Environmental Impact Assessment in a Transboundary Context (the Espoo Convention) (1991); the Convention on the Transboundary Effects of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

Industrial Accidents (1992); the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (1992); and the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention) (1998). Although initially regional conventions, certain conventions have been amended to allow accession by states not from the ECE region. The ECE also benefits from a Committee on Environmental Policy, which seeks to prevent environmental damage, promote sustainable management of environmental resources, and improve the region’s environmental conditions. Terms of Reference of the Committee on Environmental Policy, E/ECE/1447/Add.1, 2007. It meets annually and in special session. For more on the Committee, see http://www.unece.org/environmental-policy/committee-on-environmentalpolicy/about-the-committee-on-environmental-policy.html. For more on the work of the ECE, see http://www.unece.org/env/welcome.html. The ECA undertakes work in the area of the management of natural resources in Africa. It also benefits from a Committee on Food Security and Sustainable Development. On the work of the ECA, see http://www.uneca.org/. The ECLAC carries out work in the area of sustainable development and human settlements, climate change, and environmental considerations more generally. On the work of the ECLAC, see http://www.cepal.org/en. The ESCAP has undertaken work in the area of a ‘green economy’ and promotes cooperation on the management of river basins. On the work of the ESCAP, see http://www.unescap.org/ our-work/environment-development. The ESCWA addresses issues including the scarcity of water, climate change, and land and food security. On the work of the ESCWA, see https:// www.unescwa.org/our-work/natural-resources. However, writing in 2009, Birnie, Boyle and Redgwell, n 1, 72, note that ‘only the UN Economic Commission for Europe (UNECE) has made a significant contribution to the development of regional environmental law’. 34

  ECOSOC Res 2000/35. The UN Forum on Forests was established as a subsidiary body of ECOSOC. It provides a forum for policy development on forest-related matters, enhances cooperation and coordination on the issue, and monitors progress made. It was also mandated to recommend to ECOSOC ‘the parameters of a mandate for developing a legal framework on all types of forests’. In 2007, the Forum adopted the ‘non-legally binding instrument on all types of forests’, which was subsequently adopted by the General Assembly (GA Res 62/98 (2008)). The purpose of the instrument is threefold: ‘[t]o strengthen political commitment and action at all levels to implement effectively sustainable management of all types of forests and to achieve the shared global objectives on forests’; ‘[t]o enhance the contribution of forests to the achievement of the internationally agreed development goals, including the Millennium Development Goals, in particular with respect to poverty eradication and environmental sustainability’; and ‘[t]o provide a framework for national action and international cooperation’. 35

  ECOSOC Decision 1993/207; GA Res 47/191 (1992). The Commission was established as part of the institutional arrangements for the follow-up to the UN Conference on Environment and Development. That Conference had recommended the establishment of a Commission on Sustainable Development. See Agenda 21, para 38.11. On the Commission, see Subedi, ‘Commission on Sustainable Development’ in MPEPIL (online); Sands and Peel, n 1, 63–5; Mensah, ‘The United Nations Commission on Sustainable Development’ in Greening International Institutions (ed Werksman, 1996); Tornberg, ‘The United Nations Commission on Sustainable Development’ (2001) 17 New York Law School Journal of Human Rights 957; and at https:// sustainabledevelopment.un.org/intergovernmental/csd. 36

  See para 24.04.

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37

  ECOSOC Decision 1993/207; GA Res 47/191 (1992). Art 68 of the UN Charter envisages the creation of commissions by ECOSOC. 38

  ECOSOC Decision 1993/207; GA Res 47/191 (1992). Thirteen members of the Commission were from African states; 11 from Asian states; 10 from Latin America and the Caribbean; 6 from Eastern Europe; and 13 from Western Europe and other states. Other member states of the UN and of specialized agencies, as well as observers, were able to act as observers of the Commission. Intergovernmental organizations and non-governmental actors were also able to participate in the work of the Commission. The Commission interacted with UN entities involved in environmental and developmental matters. It was ‘recognised as being open, transparent and accessible to non-state actors’ (Sands and Peel, n 1, 64). 39

  It included ministerial participation. See GA Res 47/191 (1992).

40

  GA Res 47/191 (1992), para 3. Further details on the mandate are set out in paras 4–5 of the Resolution. The Plan of Implementation of the World Summit on Sustainable Development provided for an additional role of the Commission. This included ‘promot[ing] further implementation of Agenda 21’, ‘address[ing] new challenges and opportunities related to the implementation of Agenda 21’, and ‘focus[ing] on the cross-sectoral aspects of specific sectoral issues’. See Plan of Implementation, para 147. The Plan of Implementation, para 145, also called for the Commission to be strengthened. 41

  For example, in 2012–13, the thematic clusters were forests, biodiversity, biotechnology, tourism, and mountains: see at https://sustainabledevelopment.un.org/index.php? menu=1483. 42

  The Commission had been subject to criticism. For example, the High-Level Panel on UN System-Wide Coherence found that the Commission had been ‘successful as a model for incorporating stakeholders and as a forum to interact and exchange ideas’ but ‘far less effective in ensuring that the promise of integrating environment and development is fulfilled’. Delivering as One: Report of the High-Level Panel on United Nations System-Wide Coherence, UN Doc A/61/583 (2006), Annex, para 44. The Secretary-General’s report on ‘Lessons learned from the Commission on Sustainable Development’, UN Doc A/67/757 (2013), para 3, noted that ‘over time, Member States, United Nations system organizations and major groups came to the conclusion that the Commission had progressively lost its lustre and effectiveness, pointing to several shortcomings, including its lack of impact on the implementation of sustainable development policies; the ineffectiveness of its role in integrating economic, social and environmental dimensions of sustainable development in the work of the United Nations system; and its cumbersome decision-making processes and unclear outcomes. At the same time, it was widely recognized that without the Commission the field of sustainable development would not have the prominent position on the global agenda that it has today. In several instances, the Commission proved instrumental in launching initiatives and introducing new topics into intergovernmental debates.’ Birnie, Boyle, and Redgwell, n 1, 64 put it more bluntly: ‘In effect the [Commission on Sustainable Development] is a permanent diplomatic forum for continued negotiation on all matters concerned with sustainable development policy, but one with no powers, few resources, and limited influence.’ Unlike the Commission, the High-Level Political Forum is of a ‘universal intergovernmental character’ (GA Res 67/290 (2013)). It meets under the auspices of the General Assembly and of ECOSOC. See para 24.04. 43

  GA Res 67/290 (2013).

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44

  See, in particular, Gabčíkovo-Nagymaros Project (HungaryvSlovakia) ICJ Rep 1997, p 7; Case concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) ICJ Rep 2010, p 14; Whaling in the Antarctic (Australia v Japan; New Zealand intervening) ICJ Rep 2014, p 226. See also Legality of the Threat or Use of Nuclear Weapons ICJ Rep 1996, p 226. See further Viñuales, ‘The Contribution of the International Court of Justice to the Development of International Environmental Law: A Contemporary Assessment’ (2008) 32 Fordham ILJ 232; Fitzmaurice, ‘The International Court of Justice and International Environmental Law’ in The Development of International Law by the International Court of Justice (eds Tams and Sloan, 2013). 45

  See ICJ, Communiqué No 93/20 (19 July 1993), on the constitution of a Chamber of the Court for Environmental Matters. In the speech of the President of the ICJ to the General Assembly, 26 October 2006, the President noted that, in its period of existence, no state ‘asked for a case to be heard by this Chamber. Cases such as the Gabčíkovo-Nagymaros Project (HungaryvSlovakia) and Pulp Mills on the River Uruguay (Argentina v Uruguay) have been submitted to the plenary Bench. A survey of State practice suggests that States prefer environmental law not to be compartmentalized, but to find its place within international law as a whole. Indeed, environmental law has now become an important part of what we may term the mainstream of international law.’ Furthermore, whereas one state might view the matter as an environmental one, the other might see it as an issue relating, eg, to the law of treaties; and many disputes raise several issues of international law. 46

  See Sands and Peel, n 1, 70–76; Birnie, Boyle, and Redgwell, n 1, 71–83; Caldwell, n 5, 133–9. See also the ‘Reports on International Organizations and Bodies’, published annually in the Ybk IEL. 47

  Art I(2) provides that the Organization ‘shall promote and, where appropriate, shall recommend national and international action with respect to: … (c) the conservation of natural resources and the adoption of improved methods of agricultural production’. 48

  These include the International Convention for the Prevention of Pollution of the Sea by Oil (1954), and the International Convention for the Prevention of Pollution from Ships (1973) and Protocols relating thereto, which were adopted under the auspices of the International Maritime Organization (IMO); the Convention concerning the Protection of the World Cultural and Natural Heritage (1972), which was adopted by the United Nations Educational, Scientific and Cultural Organization (UNESCO); and the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995), of the FAO. 49

  These include the IMO Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, A 24/Res.982 (2006); and the FAO International Code of Conduct on the Distribution and Use of Pesticides (2002). 50

  For example, the World Meteorological Organization (WMO) and UNEP established the Intergovernmental Panel on Climate Change (IPCC). 51

  These include the World Summit on Food Security (2009).

52

  Certain projects to which the World Bank has provided financing have had negative consequences on the environment. See, eg, Sands and Peel, n 1, 670–1; BernasconiOsterwalder and Hunter, ‘Environmental Rights and International Finance: The World Bank Example’ in Environmental Protection and Human Rights (eds Anton and Shelton, 2011). See generally O’Neill, ‘Global Economic Governance and the Environment’ in The Environment and International Relations (ed O’Neill, 2012); Rich, Mortgaging the Earth: The World Bank, Environmental Impoverishment, and the Crisis of Development (1994);

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Nahmad, ‘The Impact of World Bank Policies on Indigenous Communities’ in Neoliberalism and Commodity Production in Mexico (eds Weaver et al, 2012). 53

  The World Bank has adopted a number of Operational Policies on environment-related issues, such as on forests, natural habitats, and environmental assessment. See The World Bank Operations Manual. Inspection Panels have been established to provide parties affected by a World Bank-funded project with the possibility of demonstrating that their rights or interests have been, or will be, directly affected by the failure of the Bank to follow its operational policies or procedures. See Res No IBRD 93–10 (1993); Res No IDA 93–6 (1993); and at http://ewebapps.worldbank.org/apps/ip/Pages/Home.aspx. Decided and pending Panel Cases can be viewed at http://ewebapps.worldbank.org/apps/ip/Pages/ Panel_Cases.aspx. Environmental Action Plans and environmental assessments are also used. ‘Environmental Action Plans outline the borrower countries’ environmental problems and strategies for addressing them. Environmental assessments are aimed at ensuring that development proposals take account of environmental factors’ (Birnie, Boyle, and Redgwell, n 1, 80). See generally at http://www.worldbank.org/en/topic/environment; Le Prestre, The World Bank and the Environment Challenge (1989); Shihata, ‘The World Bank and the Environment: A Legal Perspective’ (1992) 16 Maryland JIL and Trade 1; The World Bank, The World Bank and the Environment, First Annual Report: Fiscal 1990 (1990) and later reports (including Mainstreaming the Environment: The World Bank Group and the Environment since the Rio Earth Summit: Fiscal 1995 (1995)); Dolzer, ‘The World Bank and the Global Environment: Novel Frontiers? in Liber Amicorum Ibrahim FI Shihata: International Finance and Development Law (eds Schlemmer-Schulte and Tung, 2001); World Bank, Making Sustainable Commitments: An Environment Strategy for the World Bank (2001); Young, A New Green Order? The World Bank and the Politics of the Global Environment Facility (2002); Boisson de Chazournes, ‘Technical and Financial Assistance’ in Bodansky, Brunnée, and Hey (eds), n 3, 947; O’Neill, n 52. 54

  See generally World Bank, 2015 Sustainability Review (2015).

55

  The World Bank was one of three original implementing partners, together with the UNEP and UNDP. A number of additional implementing partners have since been added, including the FAO, the International Fund for Agricultural Development (IFAD), and the regional development banks. Since its establishment, the GEF has ‘provided $14.5 billion in grants and mobilized $75.4 billion in additional financing for almost 4,000 projects’. See generally at https://www.thegef.org/gef/whatisgef; Werksman, ‘Consolidating Governance of the Global Commons: Insights from the Global Environment Facility’ (1995) 6 Ybk IEL 27; Sands and Peel, n 1, 676–8; Young, n 53. 56

  World Bank, Grievance Redress Service (GRS) Annual Report 2015 (2016).

57

  World Bank, Environmental and Social Framework: Setting Environmental and Social Standards for Investment Project Financing (2016). 58

  World Bank, ‘World Bank Board Approves New Environmental and Social Framework’, World Bank Press Release, 4 August 2016, at http://www.worldbank.org/en/news/pressrelease/2016/08/04/world-bank-board-approves-new-environmental-and-social-framework. 59

  These institutional arrangements differ from the more traditional meetings of parties to a Convention. They are permanent organs that are established by the agreements, have decision-making powers, and benefit from subsidiary bodies and secretariats. On these arrangements, see Churchill and Ulfstein, ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law’ (2000) 94 AJIL 623; Brunnée, ‘COPing with Consent: Law-Making under Multilateral

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Environmental Agreements’ (2002) 15 LJIL 1; Ulfstein, ‘Treaty Bodies’ in Bodansky, Brunnée, and Hey (eds), n 3. 60

  See, eg, Vienna Convention for the Protection of the Ozone Layer, Art 9; Convention on Biological Diversity, Art 23(4)(d); Convention on International Trade in Endangered Species, Art XVII; Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, Art 15(5)(b). 61

  See, eg, Vienna Convention for the Protection of the Ozone Layer, Art 8; Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, Art 15(5)(d); Convention on Biological Diversity, Art 23(4)(c). 62

  See, eg, Vienna Convention for the Protection of the Ozone Layer, Art 10; Convention on International Trade in Endangered Species, Art XV; Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, Art 15(5)(b); Convention on Biological Diversity, Art 23(4)(d). 63

  See, eg, Montreal Protocol on Substances that Deplete the Ozone Layer, Art 10(1).

64

  ibid, Art 2(9).

65

  See Churchill and Ulfstein, n 59; Brunnée, n 59; Ulfstein, n 59.

66

  Delivering as One, n 42, para 37. See also Nairobi Declaration on the Role and Mandate of the United Nations Environment Programme, UNEP/GC19/1/1997 (1997), noting that the UNEP ‘has been and should continue to be the principal United Nations body in the field of the environment’. As Sands QC and Klein, Bowett’s Law of International Institutions (2005), 71, note, it is ‘the only UN body exclusively dedicated to international environmental matters’. 67

  The Stockholm Conference referred to ‘the urgent need for a permanent institutional arrangement within the United Nations for the protection and improvement of the human environment’, and recommended that the General Assembly establish a ‘Governing Council for Environmental Programmes’, ‘a small secretariat … to serve as a focal point for environmental action and coordination’, an Environment Fund, and an Environmental Coordination Board. Resolution on Institutional and Financial Arrangements, Report of the United Nations Conference on the Human Environment, UN Doc A/CONF.48/14/Rev.1 (1973), 29–31. The Environment Coordination Board was subsequently subsumed in the Administrative Committee on Coordination (ACC). 68

  The UNEP has been characterized in different ways. Its autonomy, in particular its ‘separate budget, secretariat, and organs’, has led to its being described as ‘something halfway between a subsidiary organ and a specialized agency’ (White, n 1, 249). Others have expressed the view that the UNEP and certain other bodies are ‘formally … organs, but they enjoy enough independence to operate as separate bodies’ (Schermers and Blokker, International Institutional Law (2011), 1088, para 1695). Still others describe the UNEP squarely as ‘a subsidiary body of the UN’ (Pushkareva, ‘United Nations Environment Programme (UNEP)’ in MPEPIL (online), para 2). The precise status of the UNEP has long been a matter of contention, with proposals being made to convert it into a specialized agency. See Mahmoudi, ‘The United Nations Environment Programme (UNEP): An Assessment’ (1995) 5 Asian YIL 175, at 183–8. During the Rio+20 Conference, the possibility of transforming the UNEP into a specialized agency, or creating a specialized agency for the environment, was mooted but not subsequently adopted. See generally Ivanova, ‘Institutional Design and UNEP Reform: Historical Insights on Form, Function and Financing’ (2012) 88 International Affairs 565.

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69

  At the time of the UNEP’s establishment, it benefitted from a ‘Governing Council’. The Governing Council was mandated, inter alia, to ‘promote international cooperation in the field of the environment and to recommend, as appropriate, policies to this end’; to ‘provide general policy guidance for the direction and coordination of environmental programmes within the United Nations system’; and to ‘receive and review the periodic reports of the Executive Director of [UNEP]’. The Governing Council reported annually to the General Assembly through ECOSOC. See GA Res 2997 (XXVII) (1972) and n 70. Following the United Nations Conference on Sustainable Development, the Governing Council invited the General Assembly to change its name to the United Nations Environment Assembly of the United Nations Environment Programme. See Governing Council Decision 27/2, UNEP/GC.21/17 (2013). The General Assembly did this in GA Res 67/251 (2013), ‘it being understood that this change of designation in no way changes, nor will change, the present mandate, aims and purposes of the United Nations Environment Programme or the role and functions of its governing body’. The Global Ministerial Environment Forum, which was held annually in conjunction with the Governing Council, was discontinued. See Governing Council Decision 27/2, UNEP/GC. 21/17 (2013). 70

  By contrast, the Governing Council was composed of 58 members, who were elected by the UN General Assembly. The United Nations Conference on Sustainable Development sought to strengthen the UNEP and make it the ‘leading global environment authority that sets the global environmental agenda by establishing universal membership in its Governing Council’ (Pushkareva, n 68, para 5). Accordingly, following the Conference on Sustainable Development, in order to ‘strengthen and upgrade’ the status of the UNEP, the General Assembly decided to make membership in the Governing Council ‘universal’. See GA Res 67/213 (2012). 71

  These include: ‘(a) Setting the global environmental agenda; (b) Providing overarching policy guidance and defining policy responses to address emerging environmental challenges; (c) Undertaking policy review, dialogue and exchange of experiences; (d) Setting the strategic guidance on the future direction of the United Nations Environment Programme; (e) Organizing a multi-stakeholder dialogue; (f) Fostering partnerships for achieving environmental goals and resource mobilization.’ See Governing Council Decision 27/2, UNEP/GC.21/17 (2013). GA Res 2997 (XXVII) (1972) decided that the Governing Council should have the following main functions and responsibilities: ‘a. To promote international cooperation in the field of the environment and to recommend, as appropriate, policies to this end; b. To provide general policy guidance for the direction and coordination of environmental programmes within the United Nations system; c. To receive and review the periodic reports of the Executive Director of the United Nations Environment Programme … on the implementation of environmental programmes within the United Nations system; d. To keep under review the world environmental situation in order to ensure that emerging environmental problems of wide international significance receive appropriate and adequate consideration by Governments; e. To promote the contribution of the relevant international scientific and other professional communities to the acquisition, assessment and exchange of environmental knowledge and information and, as appropriate, to the technical aspects of the formulation and implementation of environmental programmes within the United Nations system; f. To maintain under continuing review the impact of national and international environmental policies and measures on developing countries, as well as the problem of additional costs that may be incurred by developing countries in the implementation of environmental programmes and projects, and to ensure that such programmes and projects shall be compatible with the development plans and priorities of

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those countries; g. To review and approve annually the programme of utilization of resources of the Environment Fund.’ 72

  Governing Council Decision 27/2, UNEP/GC.21/17 (2013). See also, Governing Council Decision 13/2, UN Doc A/40/25 (1985). 73

  GA Res 2997 (XXVII) (1972). It has been noted that ‘[t]he UN family of agencies is not a small system and nobody wanted another “typical” UN bureaucracy’ (Pushkareva, n 68, para 1). 74

  GA Res 2997 (XXVII) (1972). The Executive Director is at the level of Under-SecretaryGeneral. The UNEP also benefits from a Deputy Executive Director, who is at the level of Assistant Secretary-General. 75

  GA Res 2997 (XXVII) (1972). The full list of responsibilities are: ‘a. To provide substantive support to the Governing Council of the United Nations Environment Programme [now the Environment Assembly]; b. To coordinate, under the guidance of the Governing Council, environmental programmes within the United Nations system, to keep their implementation under review and to assess their effectiveness; c. To advise, as appropriate and under the guidance of the Governing Council, intergovernmental bodies of the United Nations system on the formulation and implementation of environmental programmes; d. To secure the effective cooperation of, and contribution from, the relevant scientific and other professional communities in all parts of the world; e. To provide, at the request of all parties concerned, advisory services for the promotion of international cooperation in the field of the environment; f. To submit to the Governing Council, on his own initiative or upon request, proposals embodying medium-range and long-range planning for United Nations programmes in the field of the environment; g. To bring to the attention of the Governing Council any matter which he deems to require consideration by it; h. To administer, under the authority and policy guidance of the Governing Council, the Environment Fund … ; i. To report on environmental matters to the Governing Council; j. To perform such other functions as may be entrusted to him by the Governing Council.’ It was thus envisaged at the outset that the UNEP ‘was not to undertake a managerial or leadership role, but was to serve as a catalyst in developing and coordinating an environmental focus in other organizations’ programmes’ (Birnie, ‘The UN and the Environment’ in United Nations, Divided World (eds Roberts and Kingsbury, 1996), 343). The UNEP’s role has changed over time. On the work of the UNEP, see paras 24.22–24.24. 76

  At the outset, the Environment Fund was designed to finance ‘wholly or partly the costs of the new environmental initiatives undertaken within the United Nations system’. This included ‘financing such programmes of general interest as regional and global monitoring, assessment and data collecting systems, including, as appropriate, costs for national counterparts; the improvement of environmental quality management; environmental research; information exchange and dissemination; public education and training; assistance for national, regional and global environmental institutions; the promotion of environmental research and studies for the development of industrial and other technologies best suited to a policy of economic growth compatible with adequate environmental safeguards; and such other programmes as the Governing Council may decide upon’. In ‘the implementation of such programmes due account should be taken of the special needs of the developing countries’ (GA Res 27/2997 (1972)). 77

  The large majority of contributions to the Fund came from a small number of states. For example, in 2015, 91 per cent of contributions to the Fund came from 15 states. See at http://www.unep.org/about/funding/Home/DonorsandPartners/tabid/1083901/Default.aspx. However, over the years, nearly all member states have contributed to the Fund. Contribution to the Fund from all member states was considered particularly important following the move to universal composition of the UN Environment Assembly. In order to stimulate voluntary contributions, the Governing Council drew up a ‘voluntary indicative From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

scale of contributions’ (VISC) and encouraged states to contribute on this basis, or on the basis of biennial pledges, the UN scale of assessment, historical pledges, or on another basis. Governing Council Decision SS VI/1, Appendix (2002). The VISC was calculated on the basis of the UN scale of assessment, maximum and minimum assessment rates, and economic and social conditions in a state. Introduction of the VISC had the effect of increasing the number of states that contributed to the Fund. Governing Council Decision 27/13 (2013), para 26. For the 2014–15 biennium, the manner in which the VISC was calculated was adjusted. See Voluntary Indicative Scale of Contributions for the Biennium 2014–2015, UNEP/EA.1/INF.17 (9 July 2014). 78

  GA Res 27/2997 (1972). Despite the increase in the UNEP’s work, between 1978 and 2013 there was a decrease in funding for the UNEP from the Regular Budget in absolute and relative percentage terms. The budget increased in 2013 due to the Rio+20 conference, the outcome document of which invited the General Assembly ‘to adopt a resolution strengthening and upgrading UNEP in the following manner: … (b) Have secure, stable, adequate and increased financial resources from the regular budget of the United Nations and voluntary contributions to fulfil its mandate’ (The Future We Want, n 8, para 88). 79

  The preamble to GA Res 3004 (XXVII) on the location of the environment secretariat, notes that ‘the headquarters of the United Nations and of the specialized agencies are all located in the developed States in North America and Western Europe’ and that there should be ‘equitable geographical distribution’ of headquarters and secretariats. Birnie, n 75, 343, notes that the Nairobi location was due to ‘pressure from developing states’. 80

  As at January 2017, in addition to a regional support office (see n 81), the UNEP had regional offices for Africa; for Asia Pacific; for Europe; for Latin America and the Caribbean; for North America; and for West Asia. It had sub-regional offices in Jamaica for the Caribbean; in Kazakhstan for Central Asia; in Samoa for the Pacific; in Uruguay for South America; and in Côte d’Ivoire for West Africa. It had country offices in Brazil, China, Mexico, the Russian Federation, and South Africa. Its liaison offices were in Addis Ababa for the African Union and in Brussels for the European Union. It had a programme office in Vienna. See at http://web.unep.org/about/structure/organizational-structure. 81

  On the Regional Support Office, see at http://www.unep.org/rso/.

82

  The Division of Early Warning and Assessment ‘provides timely, scientifically credible, policy-relevant environmental analyses, data and information for decision-making and action planning for sustainable development. It monitors, analyzes and reports on the state of the global environment, assesses global and regional environmental trends and provides early warning of emerging environmental threats.’ See at http://www.unep.org/dewa/. 83

  The Division of Environmental Policy Implementation is responsible for ‘Ecosystem management for human well-being’, which covers ‘Ecosystem services and economics, Fresh water and terrestrial ecosystems, and Marine and coastal ecosystems’; ‘Addressing the environmental causes and consequences of disasters and conflicts’; and ‘Adaptation to climate change’. It is also responsible for the Poverty and environment initiative, a partnership between the UNEP and UNDP. See at http://www.unep.org/DEPI/. 84

  The Division of Technology, Industry and Economics ‘provides solutions to decisionmakers and helps change the business environment by offering platforms for dialogue and cooperation, innovative policy options, pilot projects and creative market mechanisms’. It has four principal branches: ‘economy and trade’; ‘sustainable lifestyles, cities and industry’; ‘energy, climate and technology’; and ‘chemicals and waste’. See at http:// www.unep.org/dtie/.

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85

  The Division of Environmental Law and Conventions takes the lead on the UNEP’s work that involves ‘the development and facilitation of international environmental law, governance and policy’. It focuses on: ‘Leading the international community in the progressive development of environmental law’; ‘Supporting States in the development and implementation of legal and policy measures that address emerging environmental challenges’; ‘Facilitating harmony and inter-linkages among environmental conventions’; ‘Working with MEA [multilateral environmental agreement] Secretariats to support States in implementing their treaty obligations’; and ‘Enhancing States’ participation in regional and global environmental forum’. See at http://www.unep.org/delc/. 86

  The Division of Communications and Public Information ‘communicates UNEP’s core messages to all stakeholders and partners, raising environmental awareness and enhancing the profile of UNEP worldwide’. See at http://www.unep.org/dcpi/. 87

  The Office seeks to ‘help strengthen the interface between global environmental science and policy while making the science base of UNEP’s activities stronger’. See at http:// www.unep.org/science/chief-scientist/WhattheOfficedoes/tabid/102276/Default.aspx. 88

  The UNEP website contains detailed information on the Programme’s work.

89

  Ulfstein, n 2, 28. See also Sands and Peel, n 1, 60, noting that the UNEP ‘has played a significant catalytic role in the development of treaties and soft law rules’. The UNEP’s approach is ‘based on first formulating the scientific positions, then developing legal strategies, and in the process building political support’ (Birnie, Boyle, and Redgwell, n 1, 68). 90

  These include: the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal; the Vienna Convention for the Protection of the Ozone Layer; and the Montreal Protocol on Substances that Deplete the Ozone Layer. As noted by Pushkareva, ‘[t]he secretariat when administered by UNEP remains a treaty organ’ and does not become an organ of UNEP (Pushkareva, n 68, para 24). The UNEP also supports the secretariats of other instruments, eg the Secretariat of the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. 91

  A coordinating role for the UNEP is contained in a number of General Assembly Resolutions. See, eg, GA Res 53/242 (1999); GA Res 2997 (XXVII) (1972). Hundreds of multilateral environmental agreements exist. Some of these contain related or duplicating provisions, such as in the area of reporting. There have been calls for coordination of agreements, including in relation to, but not limited to, biodiversity-related multilateral agreements. In UNEP GC/GMEF Decision SS.XII/3 (2012), the Governing Council invited the Executive Director ‘to undertake, as appropriate, further activities to improve the effectiveness of and cooperation among multilateral environmental agreements, taking into account the autonomous decision-making authority of the conferences of the parties’; requested the Executive Director ‘to explore the opportunities for further synergies in the administrative functions of the multilateral environmental agreement secretariats administered by the United Nations Environment Programme and to provide advice on such opportunities to the governing bodies of those multilateral environmental’; and further requested the Executive Director ‘to explore the possibility of signing or updating memorandums of understanding with other United Nations bodies, in particular with the specialized agencies and regional commissions, in order to coordinate endeavours by United Nations secretariats, avoid overlapping, enhance cooperation and build on synergies in the implementation of the programmes and policies of those bodies in support of sustainable development’. The UNEP has undertaken work to enhance cooperation between different conventions, such as convening expert meetings and producing materials on opportunities for coordination. See From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

‘The second multi-stakeholder expert meeting on elaboration of options for synergies among biodiversity-related Multilateral Environmental Agreements, Geneva, Switzerland, 13–15 May 2015’; UNEP, Sourcebook of Opportunities for Enhancing Cooperation among the Biodiversity-Related Conventions at National and Regional Levels (2015). See further Pushkareva, n 68, paras 20–4. 92

  These include: the Montreal Guidelines for the Protection of the Marine Environment against Pollution from Land-Based Sources (1985); the Cairo Guidelines and Principles for the Environmentally Sound Management of Hazardous Wastes (1987); the Goals and Principles of Environmental Impact Assessment (1987); and the Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters (2010). Some of these guidelines have led to the conclusion of conventions on the subject. 93

  For example, in its early years, following the framework of the Stockholm Action Plan for the Human Environment, the UNEP carried out a range of activities in the areas of environmental assessment, environmental management, and supporting measures. These included the creation of ‘Earthwatch’, in order to coordinate and integrate UN monitoring and assessment activities in the field of the environment; the preparation of studies and principles; the promotion of national environmental law; and the provision of technical assistance to developing countries. See UN Doc A/CONF.48/14/Rev.1 (1973), ch II, ‘Action Plan for the Human Environment’; Nanda, n 5, 638–42. On Earthwatch, see General Council Decision I(I), 22 June 1973; ‘The United Nations System Wide Earthwatch’, UNEP/GC. 18/33/Annex, 17 March 1995. The UNEP provides support to states and inter-governmental organizations in the development of regional instruments. It also assists with capacity building in developing states. In doing so, it seeks to strengthen the institutional capacity of these states. In broad terms, the capacity-building includes the provision of technical assistance, such as the development of national legislation and institutions, the implementation of multilateral environmental agreements, and the negotiation of agreements; training and education, such as the Global Training Programme in Environmental Law and Policy, which is aimed at governmental officials in the area of environmental management and legislation; and the provision of information, namely, the publication and dissemination of information through the creation of databases and the publication of materials. The UNEP is one of the implementing partners of the GEF, on which, see para 24.12. It supports ‘countries to develop and execute GEF projects that fit within its comparative advantage’. The UNEP’s comparative advantage has been defined as: ‘Scientific assessments, monitoring, early warning’; ‘Linking science to policy (Capacity Building, Enabling Activities) at national, regional and global levels’; ‘Innovation, technology transfer and lifting barriers’; ‘Regional and global cooperation’; and ‘Awareness raising, advocacy, and Knowledge Management’. See at http://www.unep.org/dgef/. For further details on the work of the UNEP, see, in particular, its website and annual reports. 94

  Prior to 2003, UN agencies collaborated with one another on water-related issues. In 2003, the UN High-Level Committee on Programmes decided to formalize the collaboration and promote greater cooperation and information-sharing through the creation of UNWater. See at http://www.unsceb.org/content/un-water. 95

  At the end of 2015, UN-Water had 31 members. They include parts of the Secretariat, such as the Office of the United Nations High Commissioner for Human Rights (OHCHR); programmes and funds, such as the United Nations Children’s Fund (UNICEF); specialized agencies such as the FAO; and the regional economic commissions. Non-UN global

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organizations that undertake water-related activities can be partners of UN-Water. As at the same date, there were 37 such partners. See UN-Water, Annual Report 2014, 2. 96

  The objective of the water and climate change priority area ‘is to provide a platform to discuss climate change and water linkages in their widest sense’ (ibid, 26). The other priority issues are: transboundary water, water supply and basic sanitation, and water quality. See at http://www.unwater.org/activities/thematic-priority-areas/en/. Each priority issue is coordinated by a member of UN-Water, with the water and climate change priority area being coordinated by WMO. In addition to thematic priority areas, UN-Water also operates task forces. Unlike thematic priority areas, which address longer-term issues, task forces are ‘time-bound and cover areas where UN-Water Members have identified specific activities to be implemented aimed at enhancing coordination of water related activities by UN bodies’ (UN-Water, Strategy 2014–2020, Delivering as One on Water Related Issues, 14). Task forces include water security, and water resources management. 97

  On the work of UN-Water, see at http://www.unwater.org. The activities of UN-Water are guided by UN-Water, Strategy 2014–2020, Delivering as One on Water Related Issues. 98

  See at http://www.unwater.org/about/en/. In so doing, ‘UN-Water seeks to: (a) improve the coherence in UN system actions at all levels; (b) contribute to the global policy debate on water related issues … ; (c) contribute to increased knowledge on water related issues … ; and (d) identify emerging issues related to global water challenges and provide a platform for UN system strategic discussions on how to prepare for and cope with them more effectively’ (UN-Water, Strategy 2014–2020, Delivering as One on Water Related Issues, 6). 99

  Delivering as One, Report of the High-Level Panel on United Nations System-Wide Coherence, n 41, para 37. 100

  The Future We Want, n 8, para 88.

101

  In its outcome document (ibid), the Conference invited the General Assemblyto adopt a resolution strengthening and upgrading the United Nations Environment Programme in the following manner: (a)  Establish universal membership in the Governing Council of the United Nations Environment Programme, as well as other measures to strengthen its governance as well as its responsiveness and accountability to Member States; (b)  Have secure, stable, adequate and increased financial resources from the regular budget of the United Nations and voluntary contributions to fulfil its mandate; (c)  Enhance the voice of the United Nations Environment Programme and its ability to fulfil its coordination mandate within the United Nations system by strengthening its engagement in key United Nations coordination bodies and empowering it to lead efforts to formulate United Nations system-wide strategies on the environment; (d)  Promote a strong science-policy interface, building on existing international instruments, assessments, panels and information networks, including the Global Environment Outlook, as one of the processes aimed at bringing together information and assessment to support informed decision-making; (e)  Disseminate and share evidence-based environmental information, and raise public awareness on critical, as well as emerging, environmental issues;

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(f)  Provide capacity-building to countries, as well as support, and facilitate access to technology; (g)  Progressively consolidate headquarters functions in Nairobi, as well as strengthen its regional presence, in order to assist countries, upon request, in the implementation of their national environmental policies, collaborating closely with other relevant entities of the United Nations system; (h)  Ensure the active participation of all relevant stakeholders, drawing on best practices and models from relevant multilateral institutions and exploring new mechanisms to promote transparency and the effective engagement of civil society.

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Part 3 The United Nations: What it Does, 25 Promotion of International Law Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan From: Oppenheim's International Law: United Nations Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 19 October 2017 ISBN: 9780198808312

Subject(s): Codification

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(p. 927) 25  Promotion of International Law 1.  Introduction 25.01 2.  The International Law Commission 25.04 3.  The Sixth Committee and the promotion of international law 25.53 4.  The Secretary-General and the promotion of international law 25.58 5.  United Nations Commission on International Trade Law 25.59 6.  Law of the Sea 25.64 7.  Promotion of treaties 25.67 8.  Other subsidiary bodies 25.69 9.  Legal resources and training 25.71 10.  Promotion of certain themes relevant to the UN’s work 25.81 Berman, ‘The ILC within the UN’s Legal Framework: Its Relationship with the Sixth Committee’ (2006) 49 Germ YBIL 107; International Law Commission, various Yearbooks; McRae, ‘The Interrelationship of Codification and Progressive Development in the Work of the International Law Commission’ (2013) 111 Journal of International Law and Diplomacy (Kokusaihō Gaikō Zassi) 4; Murphy, ‘Codification, Progressive Development, or Scholarly Analysis? The Art of Packaging the ILC’s Work Product’ in Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie (ed Ragazzi, 2013), ch 3; Pronto, ‘Some Thoughts on the Making of International Law’ (2008) 19 EJIL 601; Rosenne, ‘The International Law Commission’ (1960) 36 BYIL 104; Tomuschat, ‘The International Law Commission—An Outdated Institution?’ (2006) 49 Germ YBIL 77; United Nations, The Work of the International Law Commission (vol 1, 8th edn, 2012).

1.  Introduction 25.01  In the preamble to the UN Charter, the ‘peoples of the United Nations’ undertake ‘to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained’. The establishment of these conditions has come to involve the promotion of international law through studies, discussions, training, and cooperation. (p. 928) 25.02  The most important organ for the promotion1 of international law is specified as the General Assembly. Article 13(1)(a) of the UN Charter provides that the Assembly ‘shall initiate studies and make recommendations for the purpose of … promoting international cooperation in the political field and encouraging the progressive development of international law and its codification’. To this end, the General Assembly works closely with the International Law Commission (ILC), as well as through its Sixth Committee, Ad Hoc Committees, the Secretary-General, and specialist entities such as the United Nations Commission on International Trade Law (UNCITRAL).2 25.03  Many resolutions of the General Assembly are considered as having a bearing on the first part of Article 13(1)(a) (‘promoting international cooperation in the political field’).3 Nonetheless, certain decisions taken by the General Assembly also relate to the ‘progressive development of international law and its codification’ owing to their legal aspects.4 General Assembly resolutions do not usually constitute an authoritative interpretation of, or a proposed amendment to, relevant treaties, but may be ‘aimed at facilitating adherence to and the application of international treaties’.5 In certain

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circumstances, a General Assembly resolution or series of resolutions may come to be considered as authoritative under customary international law.6

(p. 929) 2.  The International Law Commission 2.1  Role 25.04  The ILC’s object is ‘the promotion of the progressive development of international law and its codification’.7 The methods applied and weight given to ‘progressive development’ and ‘codification’ have changed over time.8 Although the ILC is ‘not precluded’9 from entering the field of private international law, it has worked almost exclusively on matters of public international law.11 Other bodies have taken up the work on the promotion of private international law.12

2.2  Codification and progressive development 25.05  The reference to ‘progressive development’ in Article 13 of the UN Charter was intended to indicate that international law was not to be codified at once in a single code but was to be done in stages.13 25.06  After some debate, the distinction between progressive development and codification was expressed in Article 15 of the ILC Statute: In the following articles the expression ‘progressive development of international law’ is used for convenience as meaning the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States. Similarly, the expression ‘codification of international law’ is used for convenience as meaning the more precise formulation and systematization of rules of international law in fields where there already has been extensive State practice, precedent and doctrine. 25.07  Article 16 of the ILC Statute provides that topics for progressive development by the ILC are to be based on proposals made by the General Assembly and considered (p. 930) according to a procedure involving government consultation, resulting in a draft with explanatory report submitted to the General Assembly. Articles 18–24 provide that matters for codification may be proposed by different sources, including the ILC itself, with priority given to the General Assembly. The result would be articles with commentaries. In practice, this formal distinction has not been followed consistently,14 almost from the very beginning.15 25.08  The practice of the ILC as regards the distinction between codification and progressive development has gone through three phases.16 From the late 1940s to the 1970s, the Commission adopted a ‘fused model’, whereby the two approaches were intermingled.17 From the 1980s, the ILC changed to the ‘clear separation model’ and expressly identified certain draft articles as results of the progressive development of international law, implying that other articles should be regarded as codification.18 In 2011, the ILC modified its approach with respect to the Draft Articles on the Responsibility of International Organizations. Instead of making an article-by-article assessment, the commentary included a general warning: The fact that several of the present draft articles are based on limited practice moves the border between codification and progressive development in the

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direction of the latter. … [T]heir authority will depend upon their reception by those to whom they are addressed.19 (p. 931) 25.09  In its recent work, the ILC has engaged in what may be called ‘expository codification’, in that a renvoi is being provided to an existing body of law.10

2.3  Election of members 25.10  The ILC is composed of 34 members, who ‘shall be persons of recognized competence in international law’.20 Members are elected by the General Assembly from a list of candidates nominated by UN member states, with attention paid to representation of regional groupings.21 No places are reserved for the permanent members of the Security Council.22 The first women were elected to the ILC in 2002.23 The percentage of women on the Commission is surprisingly low, given the number of capable female international lawyers. Members are elected for five years and may be re-elected.24 The ILC tends to be composed of academics, current and former government legal advisers, and current and former diplomats. They sit in their individual capacity.25 (p. 932) 25.11  The ILC meets in annual sessions in Geneva.26 It is a permanent subsidiary organ of the General Assembly that meets part-time; its members do not serve on a full-time basis, despite requests for the Assembly to review this situation.27 25.12  Members enjoy the status of experts on mission and are entitled to privileges and immunities for the duration of the session;28 and members ‘shall not use their office or knowledge gained from their official functions for private gain, financial or otherwise, or for the gain of any third party’.29 25.13  Article 13 provides that ILC members ‘shall be paid travel expenses, and shall also receive a special allowance, the amount of which shall be determined by the General Assembly’. The issue of honorariums has proved a controversial issue between members of the ILC and the General Assembly.30

(p. 933) 2.4  Selection of topics 25.14  The ILC has on several occasions set out the criteria that should guide its decisions concerning the selection of the topics to be included in its long-term programme of work: (a)  The topic should reflect the needs of states in respect of the progressive development and codification of international law. (b)  The topic should be sufficiently advanced in stage in terms of state practice to permit progressive development and codification. (c)  The topic is concrete and feasible for progressive development and codification. (d)  The Commission should not restrict itself to traditional topics but could also consider those that reflect new developments in international law and pressing concerns of the international community as a whole. 31 25.15  Not all topics conform to these criteria. The study on ‘Risks ensuing from fragmentation of international law’ was recognized by the ILC as different from other topics it had considered so far, but it took the view that the topic involved increasingly important issues relating to international law and that the ILC could make a contribution to improve understanding of the issues in this area.32 25.16  In 1948, at the request of the UN Codification Division, Hersch Lauterpacht proposed a list of topics to be codified by the ILC, in accordance with Article 18 of its Statute. It was largely adopted by the Commission.33 In 1996, the ILC conducted a

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systematic review of its work and developed an illustrative general scheme of topics,34 but no similar exercise has been carried out since that time.35 25.17  The selection of topics by the ILC has been criticized by some commentators over the years as too focused on codification.36 Some also point to the challenges posed by a lack of practice in an area or a concern that it is ‘too political’.37 Not infrequently, (p. 934) the member who proposes a topic becomes the Special Rapporteur for that topic once it is taken up by the Commission.38

2.5  Working methods 25.18  The ILC works through plenary discussions of the reports of Special Rapporteurs and through Drafting Committees. There are also various Working Groups. 25.19  The plenary meets to consider reports of the Special Rapporteurs, the Drafting Committee, Working Groups, and the Planning Group, and to exchange views with visiting officials. The plenary decides whether to refer proposed draft articles to the Drafting Committee and to adopt provisional or final draft articles and commentaries.39 It also considers and adopts the annual report to the General Assembly at the end of each session. 25.20  In relation to topics on the programme of work, the plenary’s role is to decide on the broad approach to be taken.40 The Chairman of the Commission may indicate the main trends in opinion among members41 and make an indicative summary of conclusions.42 Since 1997, the ILC has held thematic ‘mini-debates’ in the plenary on specific issues or questions raised during consideration of a topic.43 Plenary meetings are in principle open to the public.44 25.21  The ILC Statute only envisages appointing a Special Rapporteur for topics on the progressive development of international law,45 but a Special Rapporteur is appointed at the early stage of the consideration of a topic, regardless of whether it is perceived as one of codification or progressive development. The ILC makes an effort to appoint Special Rapporteurs from different regions, and usually has one Special Rapporteur (p. 935) per topic at a time.46 The functions of the Special Rapporteur continue until the ILC has completed its work on the topic, provided that he/she remains a member of the Commission.47 25.22  The Special Rapporteur typically prepares reports on the topic, participates in the consideration of the topic in plenary, and contributes to the work of the Drafting Committee on the topic, including the commentaries to draft articles,48 where relevant.49 (p. 936) 25.23  A Special Rapporteur introduces the report at the beginning of the ILC’s consideration of the topic in plenary, responds to questions raised during the debate, makes concluding remarks, and, where appropriate, makes a recommendation as to the referral of any draft articles to the Drafting Committee or a Working Group.50

2.5.1  Working Groups 25.24  The ILC or the Planning Group often establishes ad hoc subsidiary bodies known as Working Groups, Subcommittees, Study Groups,51 or Consultative Groups.52 They may be of limited membership or open-ended. 25.25  The ILC may establish a Working Group on a topic before appointing a Special Rapporteur, to help define the scope and direction of the intended work.53Alternatively, the ILC will first appoint a Special Rapporteur and then establish a Working Group.54 The practice is evenly divided and is driven by the perceived needs of the Special Rapporteur. 25.26  Where a topic is considered urgent, the ILC has used Working Groups and not appointed a Special Rapporteur.55

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(p. 937) 25.27  Working Groups have flexible mandates and may focus on specific procedural issues,56 or undertake a thorough consideration of the topic.57 A Working Group is always subordinate to the ILC, the Planning Group, or other ILC organ that established it.58

2.5.2  Drafting Committee 25.28  The Drafting Committee is entrusted with drafting the work product of the ILC, as well as with addressing points of substance that the full ILC has been unable to resolve, or which are likely to give rise to unduly protracted discussion.59 The Drafting Committee is a single body under one Chairman, but its membership varies from session to session and, since 1992, from topic to topic at any given session.60 The Special Rapporteur is a member of the Drafting Committee on his/her topic. The Chairman of the Drafting Committee reports to the plenary. The General Rapporteur is a member ex officio of each Drafting Committee.

2.5.3  Consideration of a topic and voting 25.29  Overall, there are three stages to the consideration of a topic by the ILC:61 (i) a preliminary stage, focused on the organization of work and the gathering of relevant materials and precedents;62 (ii) a first reading of the draft articles submitted by the (p. 938) Special Rapporteur;63 and (iii) a second reading of the draft articles provisionally adopted.64 25.30  The ILC tends to employ consensus decision-making, but votes do occur at interim stages of work on a topic. In the Drafting Committee, for example, there is ‘indicative’ voting to ascertain the inclination of the room.65 Interim votes may be procedural, or may also be taken on substantive matters.66 25.31  For most topics, the ILC adopts a systematic approach to the identification of the sources of law, paying particular attention to treaties, state practice, opinio juris, general principles, and judicial decisions of both national and international tribunals.67 25.32  The ILC has been criticized for not paying sufficient attention to non-state interests.68 It consults with other entities occasionally and with varying degrees of formality and depth, and only in relation to certain topics.69 The ILC is aware of such criticisms.70

(p. 939) 2.6  Outcomes of ILC work 25.33  For its first half-century, the ILC focused on producing ‘draft articles’71 that were intended to form the basis for multilateral negotiations resulting in treaties. Many of the topics that the Commission examined took this form.72 The term ‘draft articles’ is analogous to ‘draft treaties’; it suggested that the work of the ILC had to be taken up by states through the process of negotiating a treaty.73 25.34  When the ILC concludes its work on a topic, it makes a recommendation to the General Assembly as to what, if any, action should be taken. Article 23 of the ILC Statute provides four options: to take no action, the report having already been published; to take note of or adopt the report by resolution; to recommend the draft to members with a view to the conclusion of a convention; or to convoke a conference to conclude a convention. The General Assembly may also refer drafts back to the ILC for reconsideration or redrafting.74 25.35  Until the 2000s, the ILC would typically recommend that the General Assembly convene a diplomatic conference that would use the draft articles as the starting point for the negotiation of a treaty.75 Since 2000, there has been a change in practice. The most well-known example is the ILC’s recommendation regarding the 2001 ARSIWA: that the Assembly ‘take note of the draft articles’ and ‘consider, at a later stage, … the possibility of convening an international conference … with a view to concluding a (p. 940) convention on

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the topic’.76 The same formula was used for other subsequently concluded topics,77 but it has not been completely uniform.78 25.36  A further innovation associated with the work on ARSIWA was that the General Assembly did not only ‘take note’ of the draft articles and commend them to governments, but also annexed the articles to the relevant General Assembly resolution.79 In its past practice, the attachment of legal texts to General Assembly resolutions had been reserved for treaties, declarations, or other texts that had been negotiated and formally adopted by the General Assembly itself. A senior UN legal official has observed that the new practice of having the ILC draft articles as an annex creates a ‘new category of international law instrument taking a form more typically reserved for a negotiated instrument, such as a treaty or declaration, while enjoying a status closer to a restatement of customary international law’.80 25.37  While ‘draft articles’ continue to be a significant output or intended output of ILC work,81 the Commission has shown a willingness to explore alternative forms that are not intended to become binding. These alternative forms include ‘draft principles’,82 (p. 941) ‘guiding principles’,83 ‘draft guidelines’,84 ‘draft conclusions’,85 and a ‘guide to practice’.86 Instead of recommending the convening of a diplomatic conference, the ILC has commended its work to the attention of the General Assembly, requested it to take note and disseminate the work, or asked it to endorse the work by a resolution and urge implementation.87 25.38  This shift in the ILC’s practice since 2000 towards non-binding instruments may be explained in various ways. On one view, it is an attempt to bypass the direct control of states by not intending the work product to be negotiated and revised by delegates of a diplomatic conference or a committee of the General Assembly.88 The ILC may be recognizing a broader range of international actors (including non-state actors) and pursuing a different, more flexible method of international law-making.89 Another possibility is that the ILC has recognized that states are less interested in drafting, signing, and ratifying treaties (including treaties based on ILC draft articles),90 and is responding to a desire for non-binding, practically orientated instruments.91 The ILC may also wish to avoid ‘freezing’ a topic in a treaty and to establish a systematic structure within which the law could continue to develop.92

(p. 942) 2.7  Relationship with the General Assembly and the Sixth Committee 25.39  The ILC is in a close relationship with the General Assembly and the Sixth Committee from the beginning to end of its work on a topic.93 25.40  The General Assembly, usually on the recommendation of the Sixth Committee, has requested the ILC to study or to continue to study a number of topics, or to give priority to certain topics.94 The Assembly has rejected or deferred action regarding certain drafts and recommendations of the ILC; referred a draft back for reconsideration and redrafting; and has invited the ILC to comment on outstanding substantive issues.95 It has also convened diplomatic conferences to negotiate treaties based on ILC draft articles. The ILC has always submitted an annual report to the General Assembly. There are ongoing discussions on improving the relationship between the Sixth Committee and the ILC. 25.41  Commission reports are discussed in the Sixth Committee on an annual basis.96 The Chairman of the ILC introduces its report in the Sixth Committee and attends the meetings during which the report is considered.97 The Sixth Committee makes comments to which the ILC is to respond, but guidance from the Sixth Committee is often divided.98

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25.42  Matters are complicated by the fact that on occasion several members of the ILC are also designated by their states to serve on the Sixth Committee as representatives.99 Moreover, it is usual for several members of the ILC to be former state representatives in the Sixth Committee. 25.43  The Sixth Committee submits a report to the General Assembly containing a summary of its consideration of the agenda item, as well as one or more draft resolutions (p. 943) recommended for adoption by the General Assembly. The General Assembly considers and adopts a resolution on the report of the ILC, usually without any changes to the words recommended by the Sixth Committee. The General Assembly may adopt a separate resolution or decision, based on the recommendation of the Sixth Committee, with respect to a particular topic.100 25.44  The Sixth Committee has tended to avoid giving detailed directives to the ILC.101 At the same time, the ILC places significant weight on the recommendations of the General Assembly and the observations made in the Sixth Committee. On occasion, the Sixth Committee has carried forward the work of the ILC by elaborating conventions based on draft articles.102 The General Assembly often invites the ILC’s Special Rapporteur on a topic to attend as an expert consultant the proceedings of the body entrusted with the task of elaborating the corresponding convention.103 25.45  Both the General Assembly and the ILC have periodically reflected on the relationship between the Sixth Committee and the ILC. The general theme has been to enhance the dialogue between the body of government representatives, on the one hand, and the body of independent legal experts, on the other.104 The ILC has expressed frustration with the fact that in many cases its requests for comments, or even for information, have gone unanswered.105

2.8  Role of the Codification Division 25.46  The ILC is serviced by the Codification Division of the UN Secretariat. The Codification Division always sends representatives to ILC sessions and prepares memoranda that collate and analyse state practice, doctrine, and work by other parts of the UN.106

(p. 944) 2.9  Relationship with other bodies 25.47  Various bodies are represented during ILC sessions, and make presentations on their recent activities and express views on topics of relevance to their members, including the Asian-African Legal Consultative Organization (AALCO), the European Committee on Legal Cooperation and the Committee of Legal Advisers on Public International Law (CAHDI) of the Council of Europe, the Inter-American Juridical Committee, and the African Union Commission on International Law.107 The ILC may also hold an informal exchange of views with certain bodies on topics of mutual interest.108

2.10  The relationship between the ILC and the ICJ 25.48  There are two dimensions to the relationship between the ILC and the ICJ: personnel and substantive.109 On a personnel level, of the more than 100 persons who have served as ICJ judges, 35 have been members of the ILC before their election to the Court.110 Nine former ILC members have served as President of the ICJ.111 Each year, the President of the ICJ briefs the ILC in Geneva on judicial activities of relevance to its programme of work. This is followed by an exchange of views.112 25.49  On a substantive level, the ILC looks to case law of the ICJ in its work on the codification and progressive development of international law, and the ICJ looks to the work of the ILC on topics that arise in the disputes that come before it. The ICJ does not automatically accept ILC draft articles or other work products as statements of customary international law. It assesses their applicability on a case-by-case, article-by-article basis.113 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

It has, for example, tended to find that the 2001 ARSIWA reflect (p. 945) customary international law.114 It has been more circumspect about the status of the 2006 Draft Articles on Diplomatic Protection.115

2.11  Relevance of the ILC 25.50  The ILC has been recognized for its successes in codifying important areas of international law. When the work of the ILC results in a convention, its working documents, such as the summary records, will constitute travaux préparatoires for the purposes of Article 32 VCLT.116 25.51  The ILC has also been subject to criticism for, inter alia, being an outdated institution,117 lacking expertise,118 or being extremely slow in pursuing its programme of work.119 Under its Statute, the ILC ‘may consult with scientific institutions and individual experts’, but this does not ensure that specific expertise is available at all stages of work on a topic.120 25.52  Some see the ILC’s move towards non-binding instruments as a sign of the Commission’s decline. It has already mapped significant areas of international law.121 At the (p. 946) same time, it is important to have a permanent body whose composition establishes a regional balance and whose members cooperate on complex issues of international law in a peaceful and constructive manner.122

3.  The Sixth Committee and the promotion of international law 25.53  As the primary forum for the consideration of legal questions in the General Assembly, the Sixth Committee has an important role in promoting international law.123 All UN member states are entitled to representation in the Sixth Committee. 25.54  The Sixth Committee has been involved in treaty-making by considering treaties for adoption by the General Assembly or a specific intergovernmental conference. Many treaties have been negotiated and concluded within the Sixth Committee, or were prepared by the ILC and then revised and concluded within the Sixth Committee.124 25.55  Each session, the General Assembly adopts a number of resolutions on international legal topics on the recommendation of the Sixth Committee.125 25.56  The Sixth Committee has taken up international law topics for consideration and development over several years. An example is the ‘Rule of Law at National and International Levels’, which has been on the agenda of the Sixth Committee since 2006.126 25.57  The Sixth Committee has played a central role in soliciting the views of governments, collating information from all parts of the UN, and holding discussions. For some (p. 947) topics, a Working Group may be established, which may operate under the ‘all states’ formula.127

4.  The Secretary-General and the promotion of international law 25.58  The General Assembly regularly entrusts the Secretary-General with the preparation of studies on international law, which are usually carried out by the Codification Division of the Office of Legal Affairs (OLA). These tend to be compilations of practice designed to assist the Sixth Committee128 or the ILC129 with their consideration of certain topics.

5.  United Nations Commission on International Trade Law 25.59  Along with law of the sea, international trade law is an area where the UN has been particularly active in promoting the progressive development and harmonization of the law. The key entity in this area is the United Nations Commission on International Trade Law (UNCITRAL), established by General Assembly Resolution 2205 (XXI) (1966).130 UNCITRAL

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prepares and promotes the use and adoption of legislative and non-legislative instruments in relation to dispute resolution, international contract practices, transport, insolvency, electronic commerce, international payments, secured transactions, and procurement and the sale of goods.131 Negotiations of such (p. 948) instruments involve not only the member states of UNCITRAL,132 but also non-member states, and invited intergovernmental organizations and non-government organizations (NGOs). 25.60  UNCITRAL works at three levels: the Commission, which meets in an annual plenary session; intergovernmental working groups, which are responsible for developing the topics on UNCITRAL’s work programme; and the secretariat, which assists the Commission and its Working Groups in the preparation and conduct of their work.133 25.61  In its promotion of international trade law, UNCITRAL uses legislative techniques (convention, model laws, legislative guides, and model provisions), contractual techniques (standard or uniform clauses or rules), and explanatory techniques (legal guides, practice guides, and interpretative declarations).134 25.62  UNCITRAL has had mixed success in the promotion of international trade law. It has been most effective in the areas of international arbitration,135 the international sale of goods,136 and, to an extent, electronic commerce.137 However, many UNCITRAL legislative instruments have been ratified by only a handful of states.138 25.63  In recent years, UNCITRAL has focused on promoting and disseminating international trade norms and standards in the Asia Pacific region. It opened a Regional Centre in South Korea in 2012 as a ‘channel of communication’ between the states in the region and UNCITRAL.139

(p. 949) 6.  Law of the sea 25.64  The General Assembly considers activities related to the law of the sea140 to be an important part of its promotion of international law pursuant to Article 13(1)(a) of the UN Charter.141 The focal point for these activities is the Division for Ocean Affairs and the Law of the Sea (DOALOS) of the OLA.142 Unlike other areas of international law, where a Committee (usually the Sixth Committee) does most of the negotiation and the General Assembly is not very involved beyond adopting the text, for law of the sea issues the General Assembly acts more like a Committee, paying attention to the detail, rather than as a plenary. 25.65  The DOALOS has been executing a multifaceted programme of technical assistance to states and intergovernmental organizations since the adoption of the UN Convention on the Law of the Sea (UNCLOS) in 1982. It focuses on the uniform and consistent application of the Convention and supports implementation of the Convention at the domestic level.143 25.66  It is somewhat incongruous that the law of the sea receives special attention within the UN’s mission to promote international law, while other substantive areas of law (human rights, humanitarian law, and environmental law) are not associated with Article 13(1)(a) of the Charter.144 This may be a result of the UN’s long-term commitment to the negotiation, drafting, and entry into force of the UNCLOS, which took several decades to achieve.

(p. 950) 7.  Promotion of treaties 25.67  Activities relating to the making and signing of treaties and ratification/accession are an important aspect of the UN’s promotion of international law. Over 500 multilateral treaties have been deposited with the UN Secretary-General.145 The General Assembly has adopted a number of multilateral treaties throughout its history, where the negotiation and adoption of those treaties took place within the Assembly.146 Treaties have also been

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developed and adopted by the specialized agencies, subsidiary organs, and multilateral negotiating bodies.147 25.68  The UN Treaty Section holds an annual Treaty Event during the general debate of the General Assembly. This event, with the support of the Secretary-General, highlights a group of treaties, in order to encourage member states to sign, ratify, or otherwise support these instruments.148 This has proved to be a relatively effective mechanism for promoting ratification.149

8.  Other subsidiary bodies 25.69  The General Assembly promotes international law in specific fields through the establishment of other subsidiary bodies, such as Committees. Some of these Committees have been in operation for decades and have had mixed results.150 Some Committees (p. 951) are focused on a specific area of UN reform151 or the drafting of an international convention, and achieve their objectives within one to two years.152 Other Committees may have medium-term mandates and provide a focal point for discussions and activities that take place throughout the UN System,153 or have a ‘negotiation mandate’ on a controversial issue.154 Quite regularly the work of an Ad Hoc Committee is transferred to a Working Group of the Sixth Committee with a view to finalizing the text of a draft convention and continuing a discussion on legal aspects of a programme.155 25.70  Most Ad Hoc Committees meet once a year for one to two weeks, and their membership is typically open to all members of the UN, members of the specialized agencies, or of the International Atomic Energy Agency.156

(p. 952) 9.  Legal resources and training 9.1  United Nations Programme of Assistance in the Teaching, Study, Dissemination, and Wider Appreciation of International Law and the Audiovisual Library of International Law 25.71  One of the key methods of promoting international law is the United Nations Programme of Assistance in the Teaching, Study, Dissemination, and Wider Appreciation of International Law, which was established by General Assembly Resolution 2099 (XX) (1965). The aim of the Programme of Assistance is to contribute to a better knowledge of international law, ‘as a means for strengthening international peace and security and promoting friendly relations and co-operation among States’. 25.72  The Codification Division of the OLA is responsible for the implementation of the Programme of Assistance.157 One of the most significant and successful projects under the Programme has been the creation of the Audiovisual Library of International Law (AVL) in 2008. It is a virtual training and research centre that collects, disseminates, and promotes resources for understanding international law, and which is freely available around the world. The material is contributed voluntarily and the running costs are funded by voluntary contributions.158 25.73  The AVL consists of three parts. The Historic Archives contain materials on particular legal instruments, including information on its procedural history, the text and status of the instrument, and audiovisual materials relating to the negotiation and adoption. The Lecture Series contains filmed lectures by over 200 international law scholars and practitioners. The Research Library includes online resources for treaties, jurisprudence, documents, legal publications, research guides, and selected scholarly writings, as well as international law training materials.

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9.2  United Nations Institute for Training and Research 25.74  When the United Nations Institute for Training and Research (UNITAR)159 was created in 1965, its mandate was to conduct both training and research. Over the decades this ‘double mandate’ has potentially overlapped with other parts of the UN (p. 953) System (eg, the United Nations University (UNU), UN Staff College) and led to financial strain on UNITAR, requiring assistance from the UN regular budget.160 UNITAR underwent a restructuring process in the late 1980s, and its mandate has evolved since the 1990s to focus on training for member states, with research being exclusively limited to research on, or for, such training.161 25.75  UNITAR serves 25,000 beneficiaries annually by conducting more than 400 capacity development and research activities around the world. Online e-Learning courses constitute one-third of all events.162 25.76  UNITAR is an autonomous body within the UN System with its headquarters in Geneva.163 It is governed by a Board of Trustees headed by an Executive Director.164 Article VIII of its Statute provides that it ‘shall operate on the basis of paid-in voluntary contributions’, which can come from governments, intergovernmental organizations, foundations, and other non-governmental sources. As a result of the restructuring process, the General Assembly decided that the funding of training programmes specifically requested by member states should be arranged by the requesting parties.165 Since the 1990s, UNITAR has not required subsidies from the UN regular budget.

9.3  United Nations University 25.77  The UNU is a global think tank and postgraduate teaching organization headquartered in Tokyo, Japan.166 Its mission is to contribute, through collaborative research and education, to efforts aimed at resolving pressing global problems.167 (p. 954) 25.78  The UNU was not part of the original vision for the United Nations Organization. It was proposed by UN Secretary-General U Thant in his 1969 Annual Report to the General Assembly.168 It was established in 1975 following a feasibility study ordered by the General Assembly that was carried out in collaboration with UNESCO.169 A key factor in the decision to locate the UNU in Tokyo seems to have been to establish a significant UN presence in Japan. Japan has consistently been one of the major donors to the UN, but it is not a permanent member of the Security Council and Japanese is not one of the official languages of the UN.170 Japan offered to provide headquarters facilities in Tokyo and to contribute US$100 million to establish an endowment fund. Subsequently, more than 37 countries have contributed to the University’s endowment. The UNU receives no funds from the UN regular budget, instead raising funds from public and private research donors.171 25.79  For over three decades, the UNU had no degree students and resembled a federation of think tanks. On 21 December 2009, the General Assembly approved two amendments (additions) to the UNU Charter, explicitly authorizing the UNU to ‘grant and confer master’s degrees and doctorates’.172 The first master’s degree students graduated in 2012. However, policy-relevant research remains the central focus of the University’s activities. Since 2013, under Rector David Malone, the UNU has sought to be more responsive to the needs of the UN and to have a tangible impact on policy.173

9.4  International Law Seminar 25.80  Each year an International Law Seminar is held in parallel with the ILC session in Geneva.174 The Seminar is for young jurists specializing in international law, including early career professors or government officials pursuing an academic or diplomatic (p. 955)

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career in posts in the civil service of their country. Participants from all regional groups tend to participate, with an emphasis on those from developing countries.175

10.  Promotion of certain themes relevant to the UN’s work 10.1  UN observances/designated themes for days, weeks, years, or decades 25.81  One of the ways in which the UN promotes certain themes is through declaring a theme for certain days,176 weeks,177 years,178 or decades,179 and adopting an associated programme of activities. These UN observances are intended to contribute to the achievement of the purposes of the UN Charter, and to promote awareness of and action on important issues.180 For international years and decades the Secretary-General establishes the preparatory process, evaluation, and follow-up procedures.181 Most observances are established by the General Assembly, and some have been designated by UN specialized agencies. 25.82  The period 1990–9 was declared the ‘United Nations Decade of International Law’.182 The associated activities included the encouragement of the teaching, study, dissemination, and wider appreciation of international law;183 and the creation of a new database for the UN Treaty Collection.184 It happened to be an eventful decade (p. 956) for international law,185 but the UN observance of the decade did not appear to be particularly productive.186

10.2  Rule of law 25.83  Since 1992,187 the UN has associated the promotion of international law with promoting the rule of law at the national and international levels.188 There was renewed interest in the rule of law in 2006 from both the General Assembly189 and the Security Council.190 The Secretary-General has been a key player in focusing attention on the rule of law.191 Member states have formed a Group of Friends of the Rule of Law.192 25.84  A major part of the UN’s promotion of the rule of law has been coordinating the existing rule of law work across the organization. The Rule of Law Coordination and Resource Group was established in 2007.193 The operational role regarding the rule (p. 957) of law remains with individual UN entities.194 To some extent, ‘rule of law’ has been a repackaging of existing UN activities. Moreover, the domestic rule of law model does not easily transpose to the realities of international relations.195

Footnotes: 1

  As compared to the enforcement of international law, for which the Security Council has primary responsibility. See ch 3, ‘The Security Council’. 2

  There is a risk of lack of coordination leading to duplication or contradiction among bodies and committees. 3

  See, eg, Repertory of Practice of United Nations Organs, Extracts relating to Article 13(1) (a) of the Charter of the United Nations, in UN RP Supp no 8 (1989–94) vol II; Supp no 9 (1995–99) vol II; and Supp no 10 (2000–29) vol II, para 1. 4

  Repertory of Practice of United Nations Organs, Extracts relating to Article 13(1)(a) of the Charter of the United Nations, in UN RP Supp no 10, (2000–09) vol II, para 2. Examples include: General Assembly resolutions adopted in connection with the Preparatory Commission for the International Criminal Court, the scope of legal protection under the Convention on the Safety of the United Nations and Associated Personnel, the report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, and the peaceful uses of outer space. See UN RP Supp no 10

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(2000–09) vol II, ‘Texts of Article 13(1)(a)—Provisions relating to the progressive development and codification of international law’, paras 1–19. 5

  See, eg, GA Res 59/115 (2005), preambular paras 4 and 6, paras 1 and 4; GA Res 62/101 (2008), preambular paras 6, 7, 9, and 12, paras 1, 2, 3, and 5; GA Res 58/90 (2003), preambular para 2, paras 1 and 2; GA Res 59/2 (2004), preambular paras 1, 3, and 5, paras 1, 5, 13, and 18; GA Res 61/110 (2007), para 8; GA Res 63/112 (2009), paras 43 and 51. 6

  The ICJ noted in Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) ICJ Rep 1996, p 226, at para 70: ‘General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradua1 evolution of the opinio juris required for the establishment of a new rule.’ Opinions are divided on whether GA Res 2625 (XXV) (1970) Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations (‘Friendly Relations Declaration’) is an authoritative interpretation of UN Charter provisions: Sinclair, ‘The Significance of the Friendly Relations Declaration’ in The United Nations and the Principles of International Law: Essays in Memory of Michael Akehurst (eds Lowe and Warbrick, 1994) 1; cf Mani, Basic Principles of Modern International Law: A Study of the United Nations Debates on the Principles of International Law concerning Friendly Relations and Cooperation among States (1993), 541. 7

  Art 1(1), ILC Statute, adopted by the GA Res 174 (II) (1947), as amended by GA Res 485 (V) (1950), GA Res 984 (X) (1955), GA Res 985 (X) (1955), and GA Res 36/39 (1981). 8

  See section 2.2, ‘Codification and progressive development’.

9

  Art 1(2), ILC Statute. The drafters of the Statute did not wish to set up separate commissions for public international law, private international, and international penal law. 11

  YBILC, 1996, vol II, pt 2, para 155. See UNCITRAL and The Hague Conference on Private International Law. 12

  The UN Charter does not define ‘progressive development’, nor ‘codification’. The French and Spanish texts reflect the concept of a staged process of development for ‘progressive development’, whereas the Russian text for ‘progressive development’ means ‘forward-looking’. Report of the UN Secretariat, ‘The Progressive Development of International Law’ (1947) 41 AJIL Supp Official Documents 32, at 68. Cited in McRae, ‘The Interrelationship of Codification and Progressive Development in the Work of the International Law Commission’ (2013) 111 Journal of International Law and Diplomacy (Kokusaihō Gaikō Zassi) 4, at 6. 13

  Manley Hudson noted that there could be no codification without development, and suggested the procedures should be the same: quoted in Briggs, The International Law Commission (1965), 138–9. Shabtai Rosenne notes that there is little in the travaux that indicates what was meant by progressive development and codification (Rosenne, ‘The International Law Commission’ (1960) 36 BYIL 104, at 111). 14

  In the 1951 Report on Reservations to Multilateral Conventions, the ILC noted that it had been asked to study the question from the perspective of both codification and progressive development, and therefore felt ‘at liberty to suggest the practice which it considers the most convenient for States to adopt for the future’ (Report of ILC (vol II, 1951), p 126, para 17). In its 1956 Report on the law of the sea, the ILC stated that ‘[a]lthough it tried at first to specify which articles fell into [progressive development] and

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which into the other category, the Commission has had to abandon the attempt, as several do not wholly belong to either’. See also the Commentary to Draft Article 36 of the 1958 Draft Articles on Diplomatic Intercourse and Immunities (McRae, n 12, 7). In practice, it is not substantively useful to determine whether something is an example of codification or progressive development. 15

  McRae, n 12, 15–16. For a general critique, see Hafner, ‘The International Law Commission and the Future Codification of International Law’ (1996) 2 International Law Students’ Association Journal of International & Comparative Law 671. 16

  In its General Commentaries to the Draft Articles on Succession of States in Respect of Treaties (1974) and to the Draft Articles on Most-Favoured-Nation Status (1978), the ILC stated that it considered its work constituted both codification and progressive development of international law, and it was not practicable to determine into which category each draft article fell. 17

  McRae points out that the problem is that the ILC may not have been making a deliberate separation in each case, and the reference to progressive development may have been a compromise in the drafting committee rather than a ‘considered collective judgment’ (McRae, n 12, 16). See, eg, the commentary to Draft Art 63 relating to newly independent states in the 1981 Draft Articles on the Succession of States in respect of State Property, Archives and Debts; the commentary to Draft Art 20 of the 1999 Draft Articles on Nationality of Natural Persons in relation to the Succession of States. 18

  Draft Articles on the Responsibility of International Organizations, with Commentaries (2011), para 5 of the general commentary. The import of this quotation should not be exaggerated. McRae notes that this does not tell the reader very much, and every final report of the ILC could well have carried the same warning (McRae, n 12, 17). 19

  For example, Art 36 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) refers to the principle of compensation as a form of reparation for injury, without codifying the rules on the determination of compensation; in Art 44 of ARSIWA, the provision refers to the admissibility of claims, but does not elaborate on the rules as to nationality or exhaustion of local remedies, instead ‘leaving this to the applicable rules of international law’ (YBILC, 2001, vol II, pt 2, paras 2 and 5 of the commentary to Art 44). Pronto, ‘Some Thoughts on the Making of International Law’ (2008) 19 EJIL 601, at 614–15. 10

  The ILC has on occasion considered aspects of private international law in some of its work, such as in the Draft Articles on the Jurisdictional Immunities of States and their Property. See at http://legal.un.org/ilc/ilcintro.shtml. 20

  Art 1, ILC Statute. The size of the membership has been enlarged three times: from 15 to 21 in 1956, under GA Res 1103 (XI) (1956); to 25 in 1961, under GA Res 1647 (XVI) (1961); and to the present 34 in 1981, under GA Res 36/39 (1981). 21

  Art 3, ILC Statute. Each member may nominate for election not more than four candidates, of whom two may be nationals of the nominating state and two nationals of other states (Art 4 ILC Statute). The election is held by secret ballot. Those candidates, up to the maximum number prescribed for each regional group, receiving the greatest number of votes and not less than a majority of the votes of the member states present and voting shall be declared elected (Art 9(1)). More than one ballot may be held if necessary, until all members have been elected by the required majority. In the case of a tie for a remaining seat, the General Assembly holds a special restricted ballot limited to those candidates

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(from the regional group to which the seat is allocated) who have obtained the required majority and an equal number of votes. 22

  Unlike with elections of ICJ judges. See further, ch 29, ‘The International Court of Justice’, section 2.2, ‘Election to the Bench’. For many years, it was usual for the P5 to have nationals on the ILC, but this practice was departed from in 1986 when the UK candidate, Sir Ian Sinclair, failed to be elected. In 2006, the US candidate, Michael J Matheson, was not elected (Tomuschat, ‘The International Law Commission—An Outdated Institution?’ (2006) 49 Germ YBIL 77, at 79). 23

  Hanqin Xue (China), who was later elected to the ICJ, Paula Escarameia (Portugal), and Marie Jacobsson (Sweden). As of 2017, the ILC had four female members: Concepción Escobar Hernández (Spain), Patrícia Galvão Teles (Portugal), Marja Lehto (Finland) and Nilüfer Oral (Turkey). These seven women are the only women who have ever been on the ILC to date. 24

  Art 10, ILC Statute. In 1968, the ILC proposed to the General Assembly the extension of the term of office from five to six or seven years, given the time-consuming nature of the codification process. The Sixth Committee of the General Assembly took note of the proposal and deferred taking a decision on it to a later session (General Assembly Official Records (GAOR), 24th Session, Annexes, agenda items 86 and 94 (b), UN Doc A/7746 (1968), para 117). 25

  YBILC, 1979, vol II, pt 1, UN Doc A/CN.4/325 (1979), para 4.

26

  Since 1974, the ILC’s sessions have lasted 10 to 12 weeks. In 1999, the ILC considered the advantages and disadvantages of holding split sessions, and decided that a split session was more efficient. This decision was confirmed in 2011, with the ILC emphasizing that only a split session allowed sufficient time for the preparation of the commentaries on the texts adopted during the first part of the session. The ILC has reached these conclusions on the understanding that it would maintain a flexible need-based approach to the nature and duration of its sessions (YBILC, 1999, vol II, pt 2, paras 635 and 638). See at http:// legal.un.org/ilc/ilcsessions.shtml. 27

  As early as 1951, the ILC recommended that it should work on a full-time basis, but the Assembly, in GA Res 600 (VI) (1952), decided not to take any action on the matter for the time being. 28

  These privileges and immunities were not accorded until 1979 by the Government of Switzerland. They are equivalent to those to which judges of the ICJ are entitled while present in Switzerland, namely, the privileges and immunities enjoyed by the heads of mission accredited to the international organizations at Geneva (YBILC, 1979, vol II, pt 2, paras 11–13, and GA Res 34/141 (1979)). 29

  UN Doc ST/SGB (2002). See also GAOR, 62nd Session, Supp no 10 (UN Doc A/62/10 (2007)), para 381. 30

  The Chairman, the Special Rapporteurs, and the other members of the Commission have historically also been paid honorariums. Payment of honorariums to the members of the Commission was authorized by the General Assembly on an exceptional basis, with the rates being kept under review by the Secretary-General and occasionally revised. In 1981, the revised rates of honorariums payable to members of the Commission were as follows: Chairman—$5,000; other members—$3,000; and Special Rapporteurs who prepared reports between sessions, an additional $2,500. In 1998, the Secretary-General submitted a report indicating that the General Assembly might wish to consider increasing the rates of honorariums by 25 per cent (UN Doc A/53/643 (1999)). GA Res 56/272 (2002) set at a level of US$1 per year the honorariums payable to the Commission, with a view to utilizing the savings to restore Internet services to permanent missions in New York, which were provided by the Secretariat but which were to be halted owing to budgetary constraints From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 21 November 2020

(see GA Res 56/254 D (2002)). The ILC noted that GA Res 56/272 (2002) was adopted after the election of its members and without consulting the Commission, and stressed that the Resolution especially affected Special Rapporteurs, particularly those from developing countries, by compromising support for their research work. The ILC decided not to collect the honorariums due to concerns about the administrative costs involved in the payment of the symbolic honorariums (see YBILC, 2002, vol II, pt 2, paras 525–31). The Commission continued this practice of not collecting the symbolic honorariums from 2003 to 2011. The Chairman of the Commission sent a letter to the Chairman of the Sixth Committee bringing this matter to his attention (UN Doc A/C.6/57/INF/2 (2002)). The Commission reiterates its concerns in its annual reports: see at http://legal.un.org/ilc/. See also Berman, ‘The ILC within the UN’s Legal Framework: Its Relationship with the Sixth Committee’ (2006) 49 Germ YBIL 107, at 120, 126–7. 31

  See, eg, YBILC, 1998, vol II, pt 2, para 553.

32

  The ILC noted that the method and the outcome of its work on fragmentation did not fall directly within the normal form of codification, but it was within the competence of the ILC and in accordance with its Statute (YBILC, 2000, vol II, pt 2, para 731). 33

  Lauterpacht, Life of Hersch Lauterpacht (2010), 303–4. The paper, ‘Survey of International Law in Relation to the Work of the Codification of the International Law Commission: Preparatory Work within the Purview of Article 18, Paragraph 1, of the Statute of the International Law Commission’ (1949), prepared by Lauterpacht in 1948, was submitted to the ILC in the name of the Secretary-General (Rosenne, An International Law Miscellany (1993), 460–1). The Director of the Division, Liang, no doubt had some influence over the list. 34

  YBILC, 1996, vol II, pt 2, Annex II.

35

  The Working Group on the Long-Term Programme of Work requested the Secretariat to prepare a list of potential topics for the Commission, accompanied by brief explanatory notes by the end of the present quinquennium (Report of the 66th Session, UN Doc A/69/10 (2014), para 271). 36

  El-Baradei, Franck, and Trachtenberg, ‘The International Law Commission: The Need for a New Direction’ (August 1981), Policy and Efficacy Studies No 1, Project of the UNITAR Research Department (a focus on codification had converted the ILC agenda into ‘a veritable What’s What of drafting trivia, a parody of the world’s urgent agenda’). 37

  McRae, n 12, 13.

38

  See Kolodkin with ‘Immunity of States Officials from Foreign Criminal Jurisdiction’; Murphy with ‘Crimes against Humanity’; Wood with ‘Identification of Customary International Law’. 39

  Commentaries to draft articles were intended to be considered in plenary as soon as possible during each session and separately from the Commission’s annual report (YBILC, 1994, vol II, pt 2, para 399), but since the 1990s the usual practice has been to consider and adopt commentaries as part of the process of the adoption of its annual report. See at http://legal.un.org/ilc/ilcintro.shtml. 40

  YBILC, 1996, vol II, pt 2, paras 202 and 204.

41

  This is to facilitate the work of the Drafting Committee: see YBILC, 1987, vol II, pt 2, para 239. 42

  See YBILC, 1996, vol II, pt 2, paras 148(i) and 202–11. See also at http://legal.un.org/ilc/ ilcintro.shtml. In the past, the summary was based on an indicative vote, but since the

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expansion in membership, the plenary very rarely votes, though indicative votes do take place occasionally in the Drafting Committee. 43

  The Chairman is authorized to deviate from the established list of speakers on a topic in order to allow members to respond to or comment on a statement made by a speaker in the ‘general debate’. The speaker whose statement gave rise to the ‘mini-debate’ is usually afforded the opportunity to participate during, and to respond at the end of, the minidebate. See also YBILC, 2002, vol II, pt 2, para 523. In practice, this mini-debate procedure is no longer followed. 44

  This is based on Rule 60 of the Rules of Procedure of the General Assembly. The ILC may decide to close a meeting to the public when dealing with certain organizational or administrative matters (YBLIC, 1979, vol II, pt 1, UN Doc A/CN.4/325, para 8). If decisions are reached in a private meeting or informal consultation, the decision is announced by the Chairman in plenary. See Rule 61 of the Rules of Procedure of the General Assembly. 45

  Art 16(c), ILC Statute.

46

  YBILC, 1996, vol II, pt 2, paras 185 and 186. Two Special Rapporteurs were appointed for the topic ‘Question of international criminal jurisdiction’. No Special Rapporteurs were appointed for the following topics: fundamental rights and duties of states; extended participation in general multilateral treaties concluded under the auspices of the League of Nations; the question of the protection and inviolability of diplomatic agents and other persons entitled to special protection under international law; review of the multilateral treaty-making process; fragmentation of international law; the most-favoured-nation clause (second part of the topic); and treaties over time. Occasionally the Chairman of a Working Group undertakes some of the functions performed by a Special Rapporteur. For example, the Chairman of the Study Group on the fragmentation of international law finalized a detailed study to serve as a companion document to the set of conclusions adopted by the Study Group (GAOR, 61st Session, Supp no 10 (UN Doc A/61/10 (2006)), para 237). See at http://legal.un.org/ilc/ilcintro.shtml. 47

  The practice has been for certain Special Rapporteurs to be involved even after their resignation or end of their term of office. The Special Rapporteur for State Responsibility, Roberto Ago, resigned from the ILC upon his election to the ICJ in 1978. The Chairman of the Commission sent a letter to the President of the Court requesting that Judge Ago continue to be available to the Commission in his private capacity in order to assist it in finalizing the first part of its draft on state responsibility. The Court acceded to the request in order to facilitate the Commission’s work on state responsibility, on the understanding that Judge Ago would be available in an individual and personal capacity to assist the Commission in its consideration of the few remaining articles of a draft of which he himself had been the prime author; there was no question of his being appointed, designated, or given any official title such as ‘expert consultant’; and priority would have to be given to his judicial duties. He attended the 31st and 32nd sessions of the Commission, in 1979 and 1980, respectively. In 1979, he introduced to the Commission and commented on his 8th report (YBILC, 1979, vol II, pt 2, para 69; and YBILC, 1980, vol II, pt 2, para 28). The Special Rapporteur for the law of the non-navigational uses of international watercourses, Stephen M Schwebel, completed his research for the 3rd report on the topic, which he had begun to prepare prior to his resignation from the Commission in 1981 (YBILC 1982, vol II, pt 2, para 251). Upon being appointed Director of the Codification Division (and Secretary of the Commission), Vaclav Mikulka, the Special Rapporteur for the topic of Nationality in relation to the succession of states, resigned in 1999. His analysis of the comments and observations of governments on the draft articles adopted on first reading was issued as a Secretariat memorandum (UN Doc A/CN.4/497 (1999)) and submitted to the Commission at its 1999 session (YBILC 1999, vol II, pt 2, para 40). The Commission considered a Working Paper on ‘Shared natural resources: paper on oil and gas’ (UN Doc A/CN.4/608 (2009))

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prepared by Chusei Yamada, the Special Rapporteur on Shared Natural Resources, in 2009, even though he had resigned from the Commission prior to the opening of the session (GAOR, 64th Session, Supp no 10 (UN Doc A/64/10 (2009)), paras 187–93). 48

  The commentary is intended to explain the text itself, with references to key decisions, doctrine, and state practice to indicate the extent to which the text reflects, develops, or extends the law. It is not the function of such commentary to reflect disagreements on the text as adopted on second reading, which can be done by the ILC in plenary at the time of final adoption of the text and reflected in the ILC’s report (YBILC, 1996, vol II, pt 2, para 198). See at http://legal.un.org/ilc/ilcintro.shtml. 49

  The role of the Special Rapporteur with respect to the Drafting Committee involves: (i) to produce clear and complete draft articles; (ii) to explain the rationale behind the draft articles currently before the Drafting Committee; and (iii) to reflect the view of the Drafting Committee in revised draft articles and/or commentary (YBILC, 1996, vol II, pt 2, para 200). In 2011, the ILC proposed that Special Rapporteurs prepare draft commentaries as soon as possible after the adoption of the draft articles, with a view to having them, or elements thereof, considered and provisionally approved by the Drafting Committee (GAOR, 66th Session, Supp no 10 (UN Doc A/66/10 (2011) and Add.1 (2011)), paras 379–81). 50

  See the additional guidelines for Special Rapporteurs adopted in 2011: (GAOR 66th Session, Supp no 10 (UN Doc A/66/10 and Add.1 (2011)), para 372). 51

  The first ‘study group’ was for the topic ‘Fragmentation of international law’ (2002–6), in recognition of the uniqueness of the topic, which lent itself more to the undertaking of a research study. Study groups have since been established for ‘The most-favoured-nation clause’ (2009–11) and ‘Treaties over time’ (2009–11). 52

  Working Groups, subcommittees, and study groups have a more formal status than consultative groups. 53

  This has been done with respect to: formulation of the Nürnberg principles (1949); succession of states and governments (1962–3); the question of treaties concluded between states and international organizations or between two or more international organizations (1970–1); the law of the non-navigational uses of international watercourses (1974); the status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier (1977–9); international liability for injurious consequences arising out of acts not prohibited by international law (1978 and 2002 (second part of the topic); jurisdictional immunities of states and their property (1978); diplomatic protection (1997); and unilateral acts of states (1997) and the most-favoured-nation clause (2007). In most of these cases, the Chair of the Working Group has been appointed subsequently as the Special Rapporteur for the topic. 54

  See, eg, the work on arbitral procedure (1957); state responsibility (1962–3, 1997, 1998, and 2001); relations between states and international organizations (1971 (first part of the topic) and 1992 (second part of the topic)); draft code of crimes against the peace and security of mankind (1982 and 1995–6); international liability for injurious consequences arising out of acts not prohibited by international law (1992, 1995, 1996, and 1997 (the topic as a whole, 1998 and 2000 (prevention aspect of the topic) and 2003 and 2004 (liability aspect of the topic)); unilateral acts of states (1998–2001 and 2003–6); nationality in relation to the succession of states (1995–6 and 1999 (first part of the topic) and 1998 (second part of the topic)); diplomatic protection (1998 and 2003); responsibility of international organizations (2002, 2003, 2005, and 2008); shared natural resources (2002, 2004–7, 2009–10); effects of armed conflicts on treaties (2007–8); expulsion of aliens

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(2008); and the obligation to extradite or prosecute (aut dedere aut judicare) (2008–10). These Working Groups have usually been chaired by the Special Rapporteur on the topic. 55

  See, eg, the question of the protection and inviolability of diplomatic agents and other persons entitled to special protection under international law (1972); review of the multilateral treaty-making process (1978–9); draft code of crimes against the peace and security of mankind (draft Statute for an International Criminal Court) (1990 and 1992–4); and jurisdictional immunities of states and their property (1999). 56

  See, eg, the open-ended Working Group for the topic ‘Responsibility of international organizations’, created in 2002 to consider Draft Art 2, as proposed by the Special Rapporteur. A revised draft of the provision, prepared by the Working Group, was subsequently referred to the Drafting Committee. See YBILC, 2003, vol II, pt 2, paras 47–8. 57

  Due to the technical nature of the topic, the first reading of the draft articles on the law of transboundary aquifers was undertaken with the assistance of an open-ended Working Group (see YBILC, 2006, vol II, pt 2, ch VI, para 72). 58

  YBILC, 1996, vol II, pt 2, para 219. The final outcome of a Working Group is usually an oral report by the Chair of the Working Group to the ILC in plenary, which is published in the summary records. It may also take the form of a written report issued as a document, which may be included in the ILC’s report. 59

  YBILC, 1958, vol II, UN Doc A/3859, para 65. If the Drafting Committee faces difficulties, the issue may be transferred to a Working Group (GAOR, 66th Session, Supp no 10 (UN Doc A/66/10 and Add.1 (2011)), para 375). The ILC has also observed that premature referral of draft articles to the Drafting Committee, and excessive delays between such referral and actual consideration of draft articles in the Committee can be counter-productive (YBILC, 1987, vol II, pt 2, paras 235–9). 60

  YBILC, 1992, vol II, pt 2, para 371; and YBILC, 1996, vol II, pt 2, paras 148(j) and 214. The ILC tries to ensure that the Drafting Committee reflects equitable representation of the principal legal systems and the various languages. When it completes its work on a set of draft articles, members of the Drafting Committee from the different linguistic groups will meet separately to align their respective linguistic texts with that of the authoritative version adopted by the Committee. See at http://legal.un.org/ilc/ilcintro.shtml. 61

  YBILC, 1979, vol II, pt 1, UN Doc A/CN.4/325, para 35.

62

  This involves the appointment of a Special Rapporteur, formulation of a plan of work, and possibly requests for information from governments, international organizations, and studies, surveys, and compilations from the Secretariat. 63

  This comprises consideration of the Special Rapporteur’s reports by the plenary, and of the proposed draft articles in the plenary and in the Drafting Committee; the development of draft articles with commentaries; the approval of the provisional draft articles in the Drafting Committee and the draft articles with commentaries in the plenary; and the issuance of the provisional draft with commentary as an ILC document and its submission to the General Assembly, and also to governments for their written observations. Governments are normally given at least one year to present their written observations before the Commission begins the second reading of the draft articles. 64

  During this stage, the Special Rapporteur will study the replies received from governments and comments made in the debates of the Sixth Committee. He/she will submit a further report to the plenary, recommending changes to the provisional draft. The Drafting Committee will consider and approve the revised draft in the light of the written

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and oral observations from governments; and the final draft with commentaries will be adopted in the plenary with, where relevant, a recommendation on further action. 65

  Pronto, n 19, 608.

66

  During the negotiation of Art 44(5) of the Vienna Convention on the Law of Treaties (VCLT) a vote was taken on whether it was possible to sever the provisions of a treaty that conflicted with an existing peremptory norm (Official Records of the United Nations Conference on the Law of Treaties, 2nd Session, 1969, p 77, Summary Record of the 16th Plenary Meeting, at para 56). A vote was held in the Drafting Committee of the Draft Articles on State Responsibility on whether to include Art 26 (YBILC, 2001, vol II, pt 2, para 76; Pronto, n 19, 608). 67

  The ILC sees these generally accepted methods for the identification of the law: as giving ‘prominence to State actions and perceptions, while taking into account the practice of international organizations and, in appropriate instances, the increasing role of nongovernmental organizations and individuals in world affairs’ (GAOR, 63rd session, Supp no 10 (UN Doc A/63/10 (2008)), para 342). 68

  Daugirdas, ‘The International Law Commission Reinvents Itself ?’, AJIL Unbound, 14 May 2014. 69

  Charnovitz, ‘New Opportunities for Nongovernmental Actors in the International Law Commission’ (2010) George Washington Law Faculty Publications and Other Works, Paper 402. Examples include: ‘Protection of Persons in the Event of Disasters’ (International Federation of the Red Cross and Red Crescent Societies and the United Nations International Strategy for Disaster Reduction (UNISDR) and the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), at an informal level); ‘Obligation to Extradite or Prosecute’ (Amnesty International); ‘Draft Code of Crimes against Peace and Security of Mankind’ (International Committee of the Red Cross (ICRC)); ‘Diplomatic Protection’ and ‘Water Resources’ (International Law Association). 70

  The ILC has said that it has been especially careful to ensure that proposed rules reflect a ‘balanced reconciliation of divergent state and non-state interests, having regard to established precedents’. Its ‘sensitivity to the content of rules may also provide the Commission with the opportunity to take directly into account human rights considerations, such as the dignity and security of the individuals and fairness to individuals, in its formulation of draft rules’ (GAOR, 63rd session, Supp no 10 (UN Doc A/63/10 (2008)), para 344). 71

  This term comes from Art 20 of the ILC Statute (1947): The Commission shall prepare its drafts in the form of articles and shall submit them to the General Assembly together with a commentary containing: (a)  Adequate presentation of precedents and other relevant data, including treaties, judicial decisions and doctrine; (b)  Conclusions defining: (i)  The extent of agreement on each point in the practice of States and in doctrine; (ii)  Divergencies and disagreements which exist, as well as arguments invoked in favour of one or another solution.

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72

  Examples include the ILC’s work on treaties (twice), diplomatic relations, consular relations, the diplomatic courier and the diplomatic bag, the immunities of states, the nonnavigational uses of international watercourses, the succession of states (three times), and state responsibility. See further Murphy, ‘Codification, Progressive Development, or Scholarly Analysis? The Art of Packaging the ILC’s Work Product’ in Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie (ed Ragazzi, 2013), ch 3. 73

  Cogan, ‘The Changing Form of the International Law Commission’s Work’, AJIL Unbound, 27 March 2014. 74

  Art 23(2), ILC Statute.

75

  Examples include the ILC’s work on the law of treaties between states for which it recommended that the Assembly ‘should convene an international conference of plenipotentiaries to study the Commission’s draft articles on the law of treaties and to conclude a convention on the subject’ (UN Doc A/CN.4/190 (1966)). The ILC used the same language for the draft articles on the ‘jurisdictional immunities of States and their property’ (UN Doc A/CN.4/L.457 (1991)). On the role of the ILC during the drafting of the VCLT, see Ranganathan, ‘Between Philosophy and Anxiety? The Early International Law Commission, Treaty Conflict and the Project of International Law’ (2013) 83 BYIL 82. 76

  Report of the 53rd session, UN Doc A/56/10 (2001), para 73. This was intended to be an exception to the usual practice. See also Caron, ‘The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority’ (2002) 96 AJIL 857. 77

  See ‘Responsibility of international organizations’ (UN Doc A/66/10 (2011)), ‘Effects of armed conflicts on treaties’ (UN Doc A/66/10 (2011)), and ‘Law of transboundary aquifers’, adding a request in the last that the General Assembly ‘recommend to States concerned to make appropriate bilateral or regional arrangements for the proper management of their transboundary aquifers on the basis of the principles enunciated in these articles’ (UN Doc A/63/10, para 49) (Cogan, n 73). For the draft articles on the Jurisdictional Immunities of States and their Property, the General Assembly referred the matter to a Working Group of the Sixth Committee and then decided to establish an Ad Hoc Committee (rather than to convene a conference), in the framework of which the UN Convention on Jurisdictional Immunities of States and their Property was drafted before being adopted by the General Assembly in 2004 (UN RP Supp no 10 (2000–09) vol II, Texts of Article 13(1)(a)—Provisions relating to the progressive development and codification of international law, paras 37–9). 78

  The ILC reverted to its practice of recommending the elaboration of a convention with respect to the draft articles on diplomatic protection (UN Doc A/61/10 (2006)). 79

  The new practice had been introduced by the Sixth Committee the previous year (2000), when the General Assembly, on the recommendation of the Sixth Committee, took note of the adoption by the ILC of the draft articles on nationality of natural persons in relation to the succession of states and annexed the text of the drafts articles (GA Res 55/153 (2000); Pronto, n 19, 610). 80

  Pronto, n 19, 610.

81

  Since 2000, there have been draft articles produced on state responsibility, diplomatic protection, the responsibility of international organizations, the law of transboundary aquifers, the prevention of transboundary harm from hazardous activities, the effects of armed conflicts on treaties, protection of persons in the event of disasters, and the expulsion of aliens. As of 2017, the ILC was working on draft articles relating to ‘the immunity of State officials from foreign criminal jurisdiction’ and ‘crimes against humanity’.

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82

  Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities. 83

  Guiding Principles on the unilateral acts of states.

84

  Draft guidelines are intended for the ‘provisional application of treaties’, ‘protection of the environment in relation to armed conflicts’, and ‘protection of the atmosphere’. For the topic of ‘obligation to extradite or prosecute (aut dedere aut judicare)’, the Special Rapporteur had originally proposed draft articles, but the ILC is considering ‘draft guidelines’. For the ‘most-favoured-nation clause’, the ILC Study Group ‘noted the possibility of developing for [its] final report guidelines and model clauses’. When it first considered most-favoured-nation clauses in the 1960s and 1970s, the outcome took the form of draft articles (Cogan, n 73). 85

  Conclusions on the fragmentation of international law. For work in progress as of 2016 that will result in draft conclusions, see ‘Subsequent agreements and subsequent practice in relation to the interpretation of treaties’ and ‘identification of customary international law’ in Report of the International Law Commission, 68th session, UN Doc A/71/10 (2016), chs V and VI. 86

  Guide to Practice on Reservations to Treaties (2011). This guide numbers 630 pages with commentaries, far longer than the usual draft articles with commentaries. 87

  Commending: conclusions on fragmentation and the guiding principles on unilateral acts of states; Taking note and disseminating Guide to Practice on Reservations; Endorsement and implementation: draft principles on allocation of loss in the case of transboundary harm. 88

  With ARSIWA, the ILC was concerned that a diplomatic conference would re-open and endlessly debate the provisions on countermeasures, the differences between ‘international crimes’ or ‘serious breaches of obligations under peremptory norms of general international law’, and would consider the introduction of punitive damages (Tomuschat, n 22, 95). 89

  Cogan, n 73. The ILC explained its decision to develop ‘conclusions with commentaries’ for the ‘identification of customary international law’ by noting that such ‘a practical outcome … would serve as a guide to lawyers and judges who are not experts in public international law’ (UN Doc A/68/10 (2013), para 68). 90

  An example is the 2004 UN Convention on the Jurisdictional Immunities of States and their Property, which only had 21 ratifications as of [June 2017]. A study found that 11 of 26 treaties based on ILC articles had fewer than 40 ratifications within five years of completion (Alvarez, International Organizations as Law-Makers (2005)). 91

  Murphy, n 72.

92

  Pronto, n 19, 612–13.

93

  See section 3, ‘The Sixth Committee and the promotion of international law’.

94

  See, eg, YBILC, 1979, vol II, pt 1, UN Doc A/CN.4/325 (1979), para 22.

95

  The General Assembly did not take the action recommended by the ILC with respect to the outcome of its work on the Draft Articles on arbitral procedure (1953), most-favourednation clauses, and status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier. In some cases, the General Assembly did further work on the ILC text before taking the recommended action (eg, the Assembly Working Group of the Sixth Committee worked on the ILC Draft Articles on jurisdictional immunities of states). For its part, the ILC has recognized that whether a particular set of draft articles is

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appropriate for adoption at a given time is a matter of policy for states (YBILC, 1996, vol II, pt 2, para 182). See at http://legal.un.org/ilc/governments.shtml. 96

  Guidance on the report was given in YBILC, 1992, vol II, pt 2, para 373. The ILC tends to highlight the issues on which comment is specifically sought in a special chapter of its annual report to the General Assembly (YBILC, 1999, vol II, pt 2, para 614). 97

  The ILC used to designate a Special Rapporteur to attend the Sixth Committee. This was under the terms of para 5 of GA Res 44/35 (1989). There is no budget for this to occur, so Special Rapporteurs must pay for themselves if they choose to attend. 98

  Moreover, it is typical that a number of members of the ILC have had experience on the Sixth Committee (McRae, n 12, 13). 99

  See the criticism of this practice by the UK in UN Doc A/C.6/54/SR.24 (1999), para 35 (‘Confusing the roles of Commission member and government representative had not ensured independence or objectivity’). This has become less of an issue in recent years. See also Berman, n 30, 110–11, 120. 100

  See, eg, GA Res 61/36 (2006).

101

  It tries to respect the autonomy of the ILC (YBILC, 1979, vol II, pt 1, UN Doc A/CN. 4/325 (1979), para 18). 102

  ‘Special missions’; ‘Question of the protection and inviolability of diplomatic agents and other persons entitled to special protection under international law’; ‘The law of the nonnavigational uses of international watercourses’; and ‘Jurisdictional immunities of States and their property’. In this regard, the Sixth Committee has acted as a proxy for a codification conference, with detailed study of the ILC’s work and the incorporation of amendments. The resulting conventions are: the Convention on Special Missions and the Optional Protocol concerning the Compulsory Settlement of Disputes relating thereto 1969; the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents 1973; the Convention on the Law of NonNavigational Uses of International Watercourses 1997; and the United Nations Convention on Jurisdictional Immunities of States and their Property 2004. 103

  YBILC, 1979, vol II, pt 1, UN Doc A/CN.4/325 (1979), paras 93 and 98(d).

104

  GA Res 50/45 (1996), preambular para 7.

105

  UN Doc A/51/10 (1996), para 180. Usually between 15 and 30 comments are received from governments on ILC draft articles/conclusions. The ILC also noted that if the Sixth Committee had serious doubts about the acceptability of any text on given subject, it would be helpful if these were made known at an earlier stage, rather than upon completion of the work (ibid, para 181). 106

  See, eg, Codification Division memoranda on the ‘Provisional application of treaties’ (UN Doc A/CN.4/658 (2013)) and ‘Formation and evidence of customary international law’ (UN Doc A/CN.4/659 (2013)). 107

  Report of the 65th session, UN Doc A/68/10 (2013), paras 194–7.

108

  For example, the ILC held such an exchange with the ICRC in July 2013 on the Arms Trade Treaty and the development of customary international law (Report of the 65th session, UN Doc A/68/10 (2013), para 198). The ILC has for several decades held an informal dinner with the ICRC on an annual basis, which is preceded by an exchange of views regarding a legal theme.

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109

  See ch 29, ‘The International Court of Justice’, section 3.6, ‘Relations with other principal organs’. 110

  As of June 2016 (Speech of President Tomka to the International Law Commission, 22 July 2014). Moreover, two former judges of the Court later became members of the ILC. 111

  Speech of President Tomka to the International Law Commission, 22 July 2014.

112

  See, eg, Report of the 65th session, UN Doc A/68/10 (2013), para 193. This may have a significant effect. For example, President Higgins was asked during her visit what topics the ILC may consider. She said the immunity of state officials, which was later adopted as a topic on the immunity of state officials from foreign criminal jurisdiction. 113

  See Dordeska, ‘The Process of International Law-Making: The Relationship between the International Court of Justice and the International Law Commission’ (2015) 15 ICLR 5. 114

  For a comprehensive assessment of the reception and influence of the ILC Articles, see Crawford, ‘The International Court of Justice and the Law of State Responsibility’ in The Development of International Law by the International Court of Justice (eds Tams and Sloan, 2013). See, eg, the ICJ’s application of ARSIWA Art 13 in Jurisdictional Immunities of the State (Germany v Italy; Greece intervening) ICJ Rep 2012, p 99 at para 58. The same case also considered the ILC’s work on the draft articles that preceded the UN Convention on Jurisdictional Immunities of States and their Property, which was adopted on 2 December 2004 (not yet in force). 115

  In Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) ICJ Rep 2007, p 582, the Court considered the definition in Art 1 of the ILC Draft Articles on Diplomatic Protection of 2006 a reflection of customary international law (at para 39), but did not find that Art 11(b) of the ILC Draft Articles had a customary law character (at para 93). See Vermeer-Künzli, ‘Diallo and the Draft Articles—the Application of the Draft Articles on Diplomatic Protection in the Ahmadou Sadio Diallo Case’ (2007) 20 LJIL 941. 116

  The ILC has adopted measures to streamline the production and finalization of the records (Report of the 65th session, UN Doc A/68/10 (2013), para 183). 117

  For a relatively early critique, see El Baradei, Franck, and Trachtenberg, n 36.

118

  It has been observed that the members of the ILC may lack the necessary scientific knowledge required for specialist topics (Chen, ‘Structural Limitations and Possible Future of the Work of the International Law Commission’ (2010) 9 Chinese JIL 473, 482). Moreover, Rosenne noted that ‘much of the work on new law today must be interdisciplinary, involving different branches of law, and even “multi-disciplinary”, involving other branches of science and human activity’ (Rosenne, ‘Codification Revisited after 50 Years’ (1998) 2 MPUNYB 1, at 20). 119

  ARSIWA took 46 years from initiation to completion. The work on reservations to treaties lasted 18 years. 120

  The ILC played a pivotal role in drafting the first conventions on the law of the sea (1958), but it did not suffice to meet the new challenges posed by technological developments relating to the marine environment, protection of fisheries, and exploitation of the seabed, that were required for the 1982 United Nations Convention on the Law of the Sea (UNCLOS) (Tomuschat, n 22, 82). 121

  But this may not take into account the work of the ILC as a whole and the interests of UN member states, which see value in focusing on the implementation and clarification of international law rather than its development (Azaria, ‘The International law Commission as

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an Interpreter of the Law of Treaties’, ILA (British Branch) Conference, May 2014). Cf Chen, n 118, 483–4; and Tomuschat, n 22. 122

  Tomuschat, n 22, 102 (noting that it would be fatal to establish a special legal panel for each new problem). 123

  See ch 2, ‘The General Assembly’, section 4.3, ‘Main Committees’.

124

  See, eg, the Convention on the Privileges and Immunities of the United Nations 1946; the Convention on the Prevention and Punishment of the Crime of Genocide 1948; the Convention for the Suppression of Terrorist Bombing 1997; the Convention for the Suppression of the Financing of Terrorism 1999; and the Convention for the Suppression of Acts of Nuclear Terrorism 2005. The Sixth Committee played an important role in the process that led to the adoption of the Statute of the International Criminal Court by the Rome Conference in 1998. 125

  Recent examples include: GA Res 70/114 (2015) on the Criminal accountability of United Nations officials and experts on mission; GA Res 70/117 (2015) on the scope and application of the principle of universal jurisdiction. 126

  UN Doc A/61/142 (2006). The Sixth Committee has thereafter debated the rule of law annually and recommended annual resolutions to the General Assembly (GA Res 61/39 (2006), GA Res 62/70 (2007), GA Res 63/128 (2008), GA Res 64/116 (2009), GA Res 65/32 (2010), GA Res 66/102 (2011), GA Res 67/1 (2012), GA Res 67/97 (2012), GA Res 68/116 (2013), and GA Res 69/123 (2014)). The Sixth Committee usually selects a subtopic for its discussion each year: eg, the promotion of the rule of law at the international level (64th session), the laws and practices of Member States in implementing international law (65th session), the rule of law and transitional justice in conflict and post-conflict situations (66th session) the peaceful settlement of disputes (68th session), sharing State’s national practices in strengthening the rule of law through access to justice (69th session), and the role of multilateral treaty processes in promoting and advancing the rule of law (70th session). See further at https://www.un.org/ruleoflaw/. 127

  This would include UN member states as well as members of the specialized agencies, which would also include Palestine and the Holy See. This means that Working Groups may have a broader potential membership that the Sixth Committee itself. Some do not follow this ‘all states’ formula, eg the Working Group on the scope and application of the principle of universal jurisdiction established by GA Res 69/124 (2014). 128

  See, eg, GA Res 59/35 (2004), para 3; GA Res 62/61 (2007), para 3 (decisions of international courts, tribunals, and other bodies referring to the articles on responsibility of states for internationally wrongful acts); and GA Res 65/28 (2010), para 4 (decisions referring to the articles on prevention of transboundary harm from hazardous activities and to the principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities). 129

  See, eg, General Assembly studies to assist the ILC’s work on ‘Reservations to treaties’, ‘Expulsion of aliens’, or ‘Obligation to extradite or prosecute (aut dedere aut judicare)’ (UN Doc A/CN.4/616 (2009), UN Doc A/CN.4/565 (2006), and UN Doc A/CN.4/630 (2010)). 130

  UNCITRAL’s mandate includes: ‘(b) Promoting wider participation in existing international conventions and wider acceptance of existing model and uniform laws; (c) Preparing or promoting the adoption of new international conventions, model laws and uniform laws and promoting the codification and wider acceptance of international trade terms, provisions, customs and practices, in collaboration, where appropriate, with the organizations operating in this field; (d) Promoting ways and means of ensuring a uniform interpretation and application of international conventions and uniform laws in the field of the law of international trade; (e) Collecting and disseminating information on national

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legislation and modern legal developments, including case law, in the field of the law of international trade’ (GA Res 2205 (XXI) (1966), s II, para 8). 131

  UN, A Guide to UNCITRAL (2013), 1.

132

  Members of UNCITRAL are selected from among UN member states and are intended to represent different legal traditions and levels of economic development. There are 60 members elected by the General Assembly for six-year terms, composed of 14 African states, 14 Asian states, 8 Eastern European states, 10 Latin American and Caribbean states and 14 Western European and other states (GA Res 57/20 (2002), para 2). 133

  UN, n 131, 5.

134

  UNCITRAL also collects and disseminates court decisions and arbitral awards relating to UNCITRAL legislative texts through Case Law on UNCITRAL Texts (CLOUT), for which content comes from national correspondents: see at http://www.uncitral.org/uncitral/en/ case_law.html. GAOR, 43rd session, Supp no 17 (UN Doc A/43/17) (1988); and the note by the Secretariat entitled ‘Collection and dissemination of information on UNCITRAL legal texts’ (UN Doc A/CN.9/312 (1988)) (UN, n 131, 13–21). 135

  Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958). 136

  United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980). 137

  UNCITRAL Model Law on Electronic Commerce (1996).

138

  See, eg, as of January 2017, Convention on International Bills of Exchange and International Promissory Notes (1988) (five parties); Convention on the Liability of Operators of Transport Terminals in International Trade (1991) (four parties); Convention on Independent Guarantees and Stand-By Letters of Credit (1995) (eight parties); Convention on the Assignment of Receivables in International Trade (2001) (one party— Liberia); Convention on the Use of Electronic Communications in International Contracts (2005) (seven parties). 139

  The Regional Centre relies on funding from the Incheon Metropolitan City to the Trust Fund for UNCITRAL Symposia and two loans of legal experts from the Ministry of Justice of South Korea and the Government of Hong Kong (UN Doc A/CN.9/877 (2014), para 13). 140

  These include environmental matters and peaceful settlement of maritime boundary disputes. 141

  See, eg, the Repertory of Practice of UN Organs on General Assembly action taken under Article 13(1)(a)—Provisions relating to the progressive development and codification of international law. In 1999, the General Assembly established the UN Open-Ended Informal Consultative Process on Oceans and the Law of the Sea to facilitate the Assembly’s annual review of developments in ocean affairs and the law of the sea by considering the report of the Secretary-General on oceans and the law of the sea and by suggesting issues to be considered by it (GA Res 54/33 (1999)). 142

  The legislative basis for the technical assistance activities of DOALOS is provided by the GA Resolutions on oceans and the law of the sea (GA Res 49/28 (1994); GA Res 52/26 (1997); GA Res 55/7 (2001); GA Res 56/12 (2001); and GA Res 57/141 (2002)), the mediumterm plan of the UN (UN Doc A/55/6 (2000) (Prog 5), subprogramme 4), and the SecretaryGeneral’s bulletin on the organization of the OLA (UN Doc ST/SGB/8 (1998), Section 7).

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143

  Activities include advisory services on ratification and harmonization; training courses; publication of studies and technical guidelines; and reference collections and databases on national legislation and delimitation treaties. On 22 April 2004, the UN and The Nippon Foundation of Japan concluded a trust fund project agreement to provide capacity-building and human resource development to developing coastal states parties and non-parties to the UNCLOS through academic and fellowship opportunities. The Project is jointly executed by the DOALOS and the Department of Economic and Social Affairs (DESA). 144

  Art 13(1)(a) is not the only mandate for the development of international law in the UN Charter. The promotion of human rights comes under Art 55(c). Disarmament comes under Art 11. The Disabilities Convention was negotiated following GA Res 56/168 (2001), which established an Ad Hoc Committee to consider an international convention for the protection and promotion of the rights and dignity of persons with disabilities. The Committee drafted and negotiated the text of the Convention with the assistance of the Division for Social Policy and Development, DESA. 145

  See ch 15, ‘The United Nations Secretariat and Secretary-General’, section 3.6.1, ‘Treaty depositary’. 146

  Convention on the Prevention and Punishment of the Crime of Genocide (1948); International Convention on the Elimination of All Forms of Racial Discrimination (1965); International Covenant on Civil and Political Rights (1966); International Covenant on Economic, Social and Cultural Rights (1966); Convention on the Elimination of All Forms of Discrimination against Women (1979); UNCLOS (1982); Convention on the Rights of the Child (1989); Comprehensive Nuclear-Test-Ban Treaty (1996); International Convention for the Suppression of the Financing of Terrorism (1999); Convention on the Rights of Persons with Disabilities (2006). 147

  International Labour Organization (ILO), the International Maritime Organization (IMO) and the International Civil Aviation Organization (ICAO). Subsidiary organs include UNCITRAL and the United Nations Office on Drugs and Crime (UNODC). Multilateral negotiating bodies include the Conference on Disarmament. 148

  In 2014, the treaties highlighted covered areas of global concern, including human rights, international trade, terrorism, law of the sea, disarmament, the environment, privileges and immunities, and the safety of UN personnel. The Treaty Event may nonetheless be used to sign and ratify or accede to any treaty for which the SecretaryGeneral acts as depositary. 149

  Since 2000, annual Treaty Events have attracted a total of 1,878 treaty actions (Letter of the Secretary-General to Member States, 16 May 2014). 150

  Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization (1975–) has not succeeded in reforming the Security Council in a substantive way and its meetings tend to be pro forma. It has, however, been successful in promoting non-binding instruments, such as the Manila Declaration on the Peaceful Settlement of International Disputes (GA Res 37/10 (1982), annex); Declaration on FactFinding by the United Nations in the Field of the Maintenance of International Peace and Security (GA Res 46/59 (1991), annex); Declaration on the Enhancement of Cooperation between the United Nations and Regional Arrangements or Agencies in the Maintenance of International Peace and Security (GA Res 49/57 (1994), annex); United Nations Model Rules for the Conciliation of Disputes between States (GA Res 50/50 (1995), annex); Decision on Resort to a Commission of Good Offices, Mediation or Conciliation within the United Nations (GA Decision 44/415 of 4 December 1989, annex); Resolution on Prevention and

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Peaceful Settlement of Disputes (GA Res 57/26 (2002)); and Introduction and Implementation of Sanctions Imposed by the United Nations (GA Res 64/115 (2009), annex). 151

  Ad Hoc Committee on the Administration of Justice at the United Nations (2008).

152

  Ad Hoc Committee on Jurisdictional Immunities of States and their Property (2002–4). The work on the Rome Statute of the International Criminal Court took slightly longer and moved from an Ad Hoc Committee to a Preparatory Committee: Ad Hoc Committee for the Establishment of an International Criminal Court (1995) and the Preparatory Committee for the Establishment of an International Criminal Court (1996–8). 153

  Ad Hoc Committee on Criminal Accountability of United Nations Officials and Experts on Mission (2007–). However, this Committee has not been convened since 2009. The Ad Hoc Committee on the Scope of Legal Protection under the Convention on the Safety of United Nations and Associated Personnel (2002–5) was more successful. Its recommendations (UN Doc A/55/637 (2000)) were endorsed in GA Res 57/28 (2003), and a Working Group of the Sixth Committee drafted a legal instrument on that basis. The Optional Protocol to the Convention was adopted in GA Res 60/42 (2005). 154

  The Ad Hoc Committee on an International Convention against the Reproductive Cloning of Human Beings (2002) was established by GA Res 56/93 (2001) ‘for the purpose of considering the elaboration of an international convention against the reproductive cloning of human beings’. The work then passed to a Working Group of the Sixth Committee, and due to the deeply divided views among states, the result was not a convention but a Declaration on Human Cloning (GA Res 59/280 (2005)). See generally Pronto, ‘Consideration of an International Prohibition on the Cloning of Human Beings at the United Nations’ (2007) 20 LJIL 1, at 240–7; Arsanjani, ‘Current Developments: Negotiating the UN Declaration on Human Cloning’ (2006) 100 AJIL 1, at 175–8. 155

  This tends to be an efficient way of working, assuming that there is a sufficient level of political agreement. The Ad Hoc Committee meets in February–March and sends its report to the Sixth Committee, which convenes a Working Group that takes it further. The Ad Hoc Committee may convene again the following February–March. See, eg, the Ad Hoc Committee established by GA Res 51/210 (1996) (Terrorism) (1997–). In GA Res 68/119 (2013), the Assembly took into account the recommendation of the Ad Hoc Committee that more time was required to achieve substantive progress on a draft comprehensive convention on international terrorism. The Assembly decided to recommend that the Sixth Committee, establish a working group to complete the process on the draft comprehensive convention and to hold discussions on the item included in its agenda by GA Res 54/110 (1999) concerning the question of convening a high-level conference under the auspices of the UN. The Ad Hoc Committee on the Administration of Justice at the United Nations (2008) recommended that a Working Group of the Sixth Committee be established with a view to continuing the discussion on the outstanding legal aspects of the administration of justice at the UN (UN Doc A/64/55 (2009), para 23). 156

  ‘All states’ formula.

157

  The Secretary-General reports to the General Assembly on the implementation of the Programme and, following consultations with the Advisory Committee on the Programme, which meets annually in the autumn, submits recommendations regarding its execution. 158

  Financial contributions are sent to the UN General Trust Fund Account (TLA Fund), or the United Nations Foundation (UNF), which serves as a fiduciary through the United Nations Fund for International Partnerships (UNFIP).

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159

  See also the research undertaken by the United Nations Interregional Crime and Justice Research Institute (UNICRI), the United Nations Research Institute for Social Development (UNRISD), the United Nations Institute for Disarmament Research (UNIDIR), and the United Nations International Research and Training Institute for the Advancement of Women (UN-INSTRAW). See further ch 17, ‘Improving Social Conditions’, section 3.3 ‘Other UN bodies and permanent Programmes with a role in the improvement of social conditions’. 160

  The two initial main functions of UNITAR, described in its Statute pursuant to a GA Res of December 1963, were training and research. In December 1987, the General Assembly (GA Res 42/197 (1987)) stated that the main function of UNITAR should be training, and that research should be funded by Special Purpose Grants. In 1993, the General Assembly (GA Res 47/227 (1987)) suggested that non-training activities should be transferred to appropriate UN bodies. In 1997, the Joint Inspection Unit prepared a report that was endorsed by the GA (52/206), which proposed establishing an ‘effective division of labour’ under which the United Nations University (UNU) would focus on research, UNITAR on training staff for member states and on research on training, and the UN Staff College on the training of UN staff (Report of the Executive Director of the United Nations Institute for Training and Research, GAOR, 61st session, Supp no 14 (UN Doc A/61/14) (2006), para 5). 161

  ibid, para 4.

162

  See at http://www.unitar.org/. Recent thematic areas have included: Strengthen multilateralism; Promote economic development and social inclusion; Advance environmental sustainability and green development; Promote sustainable peace; Research and Technology Applications and Cross-cutting issues. 163

  Two external offices have been established in New York and Hiroshima.

164

  Members of the Board of Trustees are appointed ‘ad personam’ by the UN SecretaryGeneral, and have backgrounds working in governments, foundations, universities, and private business. Appointed by the UN Secretary-General, the Executive Director reports directly to the United Nations Economic and Social Council (ECOSOC). 165

  GA Res 47/227 (1987).

166

  The University comprises 13 institutes and programmes located in 12 countries, each with its own Director, advisory board, and staff. It has two liaison offices at the UN Secretariat in New York and at the United Nations Educational, Scientific and Cultural Organization (UNESCO) in Paris. 167

  See at http://unu.edu/about/unu.

168

  He proposed a ‘United Nations University, truly international in character and devoted to the Charter objectives of peace and progress’. 169

  The General Assembly appointed a panel of experts to work closely with UNESCO. The panel submitted a report to the ECOSOC in September 1972, and in December 1972 the General Assembly adopted the decision to establish the UNU. A Founding Committee prepared a draft University Charter and Resolution, both of which were approved by the General Assembly in December 1973. 170

  Restrictions on having a military force in the post-war Japanese Constitution have limited its ability to contribute to UN peacekeeping. Japan wishes to become a permanent member of the UN Security Council, and has sought to reform Art 9, both formally and informally, so it can carry out the full range of responsibilities of a permanent member.

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171

  UNU income comes from three sources: the UNU Endowment Fund and cumulative surplus (36 per cent in 2013); specific programme contributions (34 per cent in 2013); and operating contributions (30 per cent in 2013) from host governments of the University’s institutes, as well as from agencies, international organizations, foundations, and other sources. In 2013, it employed 720 staff (580 of whom were contractors) from 89 countries and had a budget of US$ 71.4 million (UNU Annual Report 2013, p 6). 172

  Art I, para 8 and Art IX, para 2bis of the UNU Charter (GA Res 64/225 (2009)). This was pursued by the Rector Prof Dr Konrad Osterwalder. 173

  It established a Centre for Policy Research in Tokyo, and reconfigured the New York liaison office as a platform for strategic development of policy research opportunities and dissemination of policy-relevant research. 174

  This is pursuant to GA Res 68/112 (2013). It is organized by the Geneva Liaison for the OLA. 175

  The participants attend ILC plenary meetings, specially arranged lectures, and participate in Working Groups on specific topics. From 1965–2014, 1,139 participants, representing 171 nationalities, took part in the Seminar; 699 participants have received fellowships from a UN trust fund (Report of the 66th session, UN Doc A/69/10 (2014), para 310). 176

  For example, 9 August is International Day of the World’s Indigenous Peoples (GA Res 49/214 (1994)). The first international day—Human Rights Day—was approved in 1950. GA Res 423 (V) (1950) invited all states and international organizations to observe 10 December, to celebrate the proclamation of the Universal Declaration of Human Rights by the General Assembly on 10 December 1948, and to exert increasing efforts in this field. 177

  For example, 24–30 October is Disarmament Week (GA Res S-10/2 (1978), p 102), which was the first international week declared by the GA in 1978 (GA Res S-10/2 (1978)). 178

  For example, 2016 is the International Year of Pulses (GA Res 68/231 (2013)). The first international year was World Refugee Year (GA Res 1285 (XIII) (1959). 179

  This practice started in 1961 with the United Nations Development Decade. There may be more than one theme during a decade. For example, the period 2011–20 is the Third International Decade for the Eradication of Colonialism (GA Res 65/119 (2010)), the United Nations Decade on Biodiversity (GA Res 65/161 (2010)), and the Decade of Action for Road Safety (GA Res 64/255 (2010)). 180

  See at http://www.un.org/en/events/observances/index.shtml.

181

  The Secretary-General usually prepares a report on the decade: eg, UN Doc A/54/362 (2000). The relevant General Assembly Committee may set up a Working Group. 182

  GA Res 44/23 (1989). A programme of activities for the final three years (1997–9) was annexed to GA Res 51/157 (1996). See also GA Res 52/153 (1997). 183

  The Codification Division served as the focal point. Activities involved eliminating the backlog in publication of the UN Juridical YB, improving the website, and the establishment of the prototype audiovisual library (UN Doc A/53/492 (1998)). 184

  GA Res 51/158 (1996). The project was completed on 9 August 1998.

185

  The International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Tribunal for the Law of the Sea (ITLOS) were all established, in 1993, 1994, and 1996, respectively. The Rome Statute of the International Criminal Court was adopted in 1998.

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186

  Most of the activities occurred in the last three years. By 2000, the backlog in the publication of the UN Treaty Series had not yet been eliminated and the electronic database required further development (GA Res 54/28 (2000)). There were some who did find the UN Decade useful because, eg, it helped officials of developing countries emphasize the importance of international law in their governments. 187

  It has been an agenda item of the General Assembly since 1992.

188

  See at https://www.un.org/ruleoflaw/what-is-the-rule-of-law/. ‘For the United Nations, the rule of law refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency’ (Report of the Secretary-General, The rule of law and transitional justice in conflict and post-conflict societies (UN Doc S/2004/616 (2004)), para 6). 189

  See, eg, GA Res 61/39 (2006), GA Res 62/70 (2008), GA Res 63/128 (2008).

190

  The Security Council has thematic debates on the rule of law (S/PRST/2003/15, S/PRST/ 2004/2, S/PRST/2004/32, S/PRST/2005/30, S/PRST/2006/28) and adopted resolutions mentioning the rule of law in the context of women, peace, and security (SC Res 1325 (2000), SC Res 1820 (2008)), children in armed conflict (eg, SC Res 1612), and the protection of civilians in armed conflict (eg, SC Res 1674 (2006)). 191

  The Secretary-General submits to the General Assembly an annual report on UN rule of law activities (eg, UN Doc A/64/298 (2010)). In September 2012, the Secretary-General created a new three-tier system to strengthen the UN’s ability to deliver activities related to the rule of law at the field level, at the Headquarters (operational support) level, and at the strategic level. 192

  Austria, Belgium, Costa Rica, Czech Republic, Democratic Republic of the Congo, Finland, Germany, Italy, Japan, Jordan, Kyrgyzstan, Latvia, Liechtenstein, Mongolia, Netherlands, Republic of Korea, Romania, Singapore, Slovakia, Slovenia, Sweden, and Switzerlan